Zimmerman and Bertram
[2008] FamCA 125
•19 February 2008
FAMILY COURT OF AUSTRALIA
| ZIMMERMAN & BERTRAM | [2008] FamCA 125 |
| FAMILY LAW – PROPERTY – Property settlement FAMILY LAW – CHILDREN – Short marriage – one child – parenting orders – when overnight visits to father to commence and progressive stages of time with father |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Zimmerman |
| RESPONDENT: | Ms Bertram |
| FILE NUMBER: | SYF | 3586 | of | 2006 |
| DATE DELIVERED: | 19 February 2008 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 2 August, 2 November, 17, 18 & 21 December 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd |
| SOLICITOR FOR THE APPLICANT: | Clinch Neville Long Letherbarrow Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Mater |
| SOLICITOR FOR THE RESPONDENT: | Barkus Edwards Doolan |
Orders
The child … born … November 2005 is to live with her mother at all times other than those referred to in order2.
The child is to live with her father as follows:
A. from the date of the orders until 18 May 2008
(i)each Saturday from 9am to 5pm;
(ii)each Wednesday from 8.30am to 10.30am;
(iii)Good Friday from 9am to 5pm; and
(iv)Easter Saturday from 9am to 5pm.
B. from 19 May 2008 until November 2008
(v)each second weekend from 9am Saturday to 9am Sunday subject to the father having a mothercraft nurse present throughout the first two overnight visits, to commence on the first Saturday after 19 May;
(vi)each Wednesday from 8.30am to 10.30am and the alternate Saturday from 8.30am to 10.30am;
(vii)at other times pursuant to these orders or as agreed.
C. from 19 November 2008 until 18 May 2009
(viii)each second weekend from 9am Saturday to 5pm Sunday;
(ix)each Wednesday from 8.30am to 10.30am;
(x)from Easter Sunday 9am to Easter Monday 5pm;
(xi)at other times pursuant to these orders or as agreed.
D. from 19 May 2009 until November 2009
(xii)each second weekend from 6pm Friday to 9am Sunday;
(xiii)each Wednesday from 8.30am to 10.30am;
(xiv)three days and three nights in November 2009 on dates to be agreed and failing agreement as nominated by the father on giving one month’s notice in advance;
(xv)at other times pursuant to these orders or as agreed.
E. from 19 November 2009 until 18 May 2010
(xvi)each second weekend from 6pm Friday to 4pm Sunday;
(xvii)each Wednesday from 8.30am to 10.30am;
(xviii)for four days and four nights
(a)during January 2010; and
(b)during the Easter school holiday period
on dates to be agreed or failing agreement as nominated by the father on giving one month’s notice;
(xix)at other times pursuant to these orders or as agreed.
F. at all times during the period from A. to E inclusive
(xx)the child’s birthday if it does not fall on a day specified from 2pm to 5pm or other agreed time;
(xxi)the father’s birthday as agreed or failing agreement from 9am to 5pm;
(xxii)on the … July each year or other agreed date to celebrate the paternal grandparents birthdays from 9am to 5pm;
(xxiii)on Father’s Day each year if it does not fall on a day specified elsewhere from 9am to 5pm;
(xxiv)during the Christmas period each year as agreed and if not agreed according to the consent orders of 21 December 2007.
Notwithstanding the arrangements in A. – F. inclusive, the child is to spend time with her mother each year on Mother’s Day from 9am to 5pm, the mother’s birthday from 9am to 5pm, and on a day agreed to celebrate her maternal grandparents’ birthdays.
From 18 May 2010 the arrangements reflected in orders 1 – 3 hereof are to be reviewed upon the application of either parent if they are unable to agree after taking appropriate steps to consult and confer in order to reach agreement about longer term arrangements.
The mother’s application about a change of the child’s surname is dismissed.
Of the funds invested from the sale of property at M
(i)the wife is to receive the sum of $576,236;
(ii)the husband is to receive the sum of $525,600;
(iii)the balance over and above $1,101,836 is to be distributed in the proportions of 45% to the wife and 55% to the husband.
Save as to the cash investment referred to in order 6 hereof each party is entitled to retain all other property presently in the possession or ownership of that party.
Until 18 May 2010 or until further order whichever first occurs the husband is to pay to the wife the sum of $600 per week by way of spouse maintenance.
By consent:
The parents are to have equal shared parental responsibility for the child.
10. The child’s care is to be changed by the father collecting her from the mother’s residence at the beginning of time spent with him and the mother collecting her from her father’s residence at the conclusion of that time.
11. Each parent is to keep the other informed in a timely way of any medical treatment sought for the child and provide information to the other about the treating medical practitioner and any treatment prescribed and each is to provide to the other copies of any test results, letters of referral, reports or other information related to the child’s health and medical treatment.
12. Each parent is to cooperate in providing to the other the child’s Medicare details and as far as practicable to have her consult with her usual doctor.
13. Both parents are to do all acts and things necessary to procure a passport for the child to be retained by the mother and made available to the father and used by the mother for any overseas trip for the child that the parents agree to in writing.
14. The child is to be free to speak daily to the other parent for a reasonable duration when on holidays with either parent.
15. If the mother for any reason has to cancel any period of time spent by the child with the father pursuant to these orders, she is to provide the father with three alternatives for make up time within 48 hours of the cancellation and the father is to promptly advise her of the substitute time he will take.
16. If the father for any reason has to cancel any period of time spent with the child pursuant to these orders he is to provide the mother with three alternatives for make up time within 48 hours and the mother is to promptly advise him of the substitute time the child will be available.
17. Each parent is to keep the other advised of significant changes in the child’s diet and sleep patterns.
18. Each parent is to notify the other at least 30 days in advance of any intention to take the child on a holiday and provide to the other parent with dates and contact details.
19. Both parents are to facilitate the child’s participation in and attendance at jointly agreed pre-school, school, sporting and social activities including but not limited to music lessons, ballet lessons, gymnastic classes, swimming lessons, other sporting activities, children’s birthday parties, school camps and holiday programs and each parent is to do all acts and things necessary to ensure that the child attends agreed activities during periods which the child is either living with or spending time with either of the parties.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Moore delivered this day will for all publication and reporting purposes be referred to as Zimmerman & Bertram
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3586 of 2006
| Mr Zimmerman |
Applicant
And
| Ms Bertram |
Respondent
REASONS FOR JUDGMENT
Proceedings
To be determined are proceedings for certain parenting orders related to arrangements for the parties’ young daughter, (“the child”) who is aged 2 years 3 months as well as property settlement and spouse maintenance.
Orders sought
The formal orders sought by the husband/father are to be found in exhibit 1 and those by the wife/mother are to be found in exhibit 2. However, in the course of the hearing those related to parenting were refined, agreement was reached about many of the ancillary arrangements, and at the close of the evidence they agreed to an extension of the time under the interim orders as well as the Christmas arrangements pending delivery of judgment. The consent arrangements are reflected in the orders set out earlier. A key issue remaining for decision is the time the child will spend in her father’s care. They do agree that in the shorter term there is to be a gradual increase in the time spent with the child but they are unable to agree when overnight visits are to be introduced amongst other things including the longer term arrangements. They are also unable to agree about the surname their daughter is to use and what school she will attend in 2011.
It is convenient to record the detail of orders now sought in schedules at the end of these reasons. But their respective positions about time can be summarised here by highlighting the proposed core arrangements and putting to one side for now the various special days they each nominate as additional time:
1. initial stage to be introduced now
On the mother’s proposal the time between now and November 2008, that date being the child’s 3rd birthday, contact will continue during the day:
Until November 2008
·each Tuesday from 8.30am to 10am; and
·each Saturday from 9am to 5pm.
The father’s core proposal involves a much shorter initial period running to early May, not November, and the introduction of overnight visits immediately as well as a block period after giving notice:
Until 2 May 2008
·each second Saturday from 9am to 5pm;
·each second weekend from 10am Saturday to 10am Sunday [1 night];
·each Thursday from 8.30am to 10am; and
·7 consecutive days on giving 30 days notice…
2. second stage to be introduced during 2008
The second stage the mother envisages runs from November 2008 when overnight visits would be introduced and the core arrangements, again putting aside special occasions nominated, from the child’s 3rd birthday until the end of December 2009 would be:
From November 2008 [3rd birthday] to 31 December 2009 [post 4th birthday]
·Each alternate Saturday 9am to 1pm;
·Each alternate weekend from 9am Saturday until 9am Sunday [1 night].
The second stage on the father’s proposal would operate from early May 2008 to her 4th birthday:
From 2 May 2008 to November 2009 [4th birthday]
·each second Saturday from 9am to 5pm;
·each second weekend from 6pm Friday to 6pm Sunday [2 nights];
·from Wednesday 5.30pm to Thursday 10am [1 night]; and
·4 weeks per annum after giving notice and to be taken over the year as outlined…
3. third stage to be introduced from or after 4th birthday
The mother’s third stage runs
From 1 January 2010 into the longer term future.
·each second weekend from 9am Saturday until 5pm Sunday
·for 4 block periods each year, 3 not to be more than 7 days and one not to be more than 14 days [not before 1 January 2011] to occur during school holidays on the father giving 2 months notice in writing…
The father’s third stage runs
From November 2009 [4th birthday] thereafter….
·week about with changeover to be 6pm Sundays; and
·4 weeks per annum after giving notice to the mother and taken on one or two occasions each year as outlined….
The financial orders sought are also set out in schedules at the end of these reasons.
Evidence
To support their own evidence they each called evidence from witnesses. For the father there is evidence from his mother, Mrs Zimmerman; friends, Ms R and Ms P; and a mothercraft nurse, Ms E. The mother’s witnesses were her mother, Mrs Bertram, and her father, Mr Bertram. Not all were required for cross-examination. There is also evidence from a psychologist, Ms T, who, as a court appointed single expert, prepared three reports over time which she elaborated upon in further evidence at the hearing.
The background relevant to the financial proceedings is not extensive and can be recorded in a relatively summary way. The evidence related to the parenting proceedings is more extensive and there is a good deal of contention about past events and whose version represents the more accurate picture of what occurred. The decisions required are of unquestionable importance to the parties and for the child but as noted earlier they ultimately resolved into a fairly narrow field related to time, the child’s surname, and the school she will attend some years hence and even those issues revolved around some limited though key considerations. No constructive purpose would be served by trawling over the detail of disputed history which was largely, though not entirely, the result of different perspectives about the same event arising from entirely different attitudes each regards as valid. That exercise would not result in wholesale vindication in one direction or the other on all issues and would be unlikely to assist the counselling process they agreed late in the hearing to undertake with a view to improving their communications in their daughter’s interests. There was implicit support for taking a scaled back approach in the relatively brief submissions of both counsel about the parenting issues and that lead can be followed.
Background
The father (39) and the mother (41) began living together either in the latter half of 2003 or early 2004. The difference is of no material significance. They married on in February 2005. Their daughter was born in November 2005. They separated five months later on 18 April 2006 when the mother left their home at M and went to live at her parents’ home with the child. They were divorced in July 2007.
When their relationship began the father was living in a rented unit at C. He was employed as a senior executive with a bank earning around $200,000 per annum and a discretionary annual bonus based on performance. He left that employment in March 2007 and was out of work for some months until August 2007 when he obtained an executive position with another bank. His base salary is around $286,800 [exhibit 11] per annum and he anticipates receiving performance based bonuses in the future. Like his previous job, it is demanding work but he says the hours will be less with more flexibility and there will be reduced travel overseas and within Australia.
Referable to the year prior to his departure from his former employer, the father received a bonus of $350,000 gross or around $187,000 after tax. He used $50,000 of it to establish an investment for the child’s education by purchasing debentures as a long term investment. He otherwise used the money towards payment of legal fees, he purchased a new motor vehicle for $37,000, he purchased furniture and household items at a cost of around $20,000, and he used it to pay living expenses and child support during the period he was unemployed.
10. Earlier in her life the mother worked as a secretary and in the hospitality industry before she returned to tertiary study in 1990 to obtain a degree in business. After graduation in 1993 and began work in the IT industry and later completed post graduate study including a Masters in Business Administration. When her relationship with the father began, she was working for a large firm of solicitors as a marketing executive earning over $140,000 per annum plus telephone expenses. She continued her employment until April 2005 when she accepted redundancy and she has not since returned to paid work. Her capacity for future employment is contentious and will be addressed later.
11. They lived for a time initially in the unit at C rented by the husband who paid the rent and the mother contributed to outgoings.
12. On the husband’s case he had the following property: cash of around $994,000 invested from the sale of a home; household contents from the home sold; a superannuation entitlement in a self managed fund with a balance of around $88,000; an Audi motor vehicle which he had acquired in 2003 for $99,000; and a share portfolio of $25,000.
13. In April 2004 the wife sold a property she owned at T. Of the funds received she later withdrew $250,000 and deposited it to the husband’s ING account. She also had around this time household contents, her superannuation entitlement in a self managed fund of about $130,376 [exhibit 7], and an interest in a sporting facility which had come from her family.
14. After some months in the marketplace, in mid-2004 they purchased an apartment at M as joint tenants for $1.518 million. The owners of the apartment were liable to pay a special levy for damage and repairs to the building. The vendors paid some of it and that left the father and the mother as the purchasers to pay the remaining $52,000 which was deducted from the initial purchase price. There were additional costs for stamp duty and fees.
15. To purchase the apartment the husband contributed the cash savings he then had of around $1 million and the wife contributed her cash savings of $250,000. The balance required was financed with a mortgage in favour of a bank.
16. To move into the apartment the C unit was packed up and it is the wife’s evidence, which is accepted, that she took a role in oversighting the removal.
17. Their wedding in February 2005 was a costly event at about $100,000, paid for by the husband who also spent around $35,000 on rings. They each attribute to the other the idea of having a wedding on this scale and expense but there was no exploration sufficient to lead to a finding one way or the other about that and, in any event, whether or not there was opposition to it is now irrelevant; it happened, it cost that amount of money and the husband paid it.
18. A couple of months after the wedding, in April 2005, the wife left her employment and received a redundancy payment of about $32,200 which I accept was negotiated with some assistance from her husband. She was by this time pregnant, but her departure seems to have been unrelated to that.
19. By this stage there was a year to run before their separation. In their own way they each advance their perspective about the deteriorating state of affairs in their relationship and the conduct of the other. Those unhappy times need not be documented here, but it does seem reasonable to observe that the husband’s withdrawal from the relationship, no doubt for reasons he regards as sound, along with his episodic angry outbursts did cause some hurt and confusion.
20. Over several months from August 2005 they undertook renovations to the apartment and they increased their joint borrowings from the bank for that purpose. It is agreed the renovations cost around $112,500. In her case, the mother provides considerable detail about the work undertaken and her pivotal role in it, with assistance from her father, including organisation, sourcing materials, retaining and generally supervising contractors. Yet it is apparent from the father’s case that the renovations were a source of disagreements, not only about the necessity and style of the work but also the manner others in the building were being approached, the escalating costs, and the involvement of the mother’s parents, more particularly her father, in the exercise.
21. The child was born in November and her birth brought complications which continued for a time. No doubt it was a difficult time for the mother and the father took some time off work to be available. But the history shows that pressures mounted while communications deteriorated and the marital relationship was strained as developments took their toll. In March 2006 they decided to take a holiday on Hayman Island, accompanied by the wife’s mother, but the situation did not improve. The decision to separate was made by the father the following month.
22. As for their roles and responsibilities apart from their employment while they were together, the mother sets out in some detail her various contributions. It can be accepted that she was primarily responsible for the general management of the household, the cleaning not undertaken by paid help and for the laundry [save for the husband’s clothes which were laundered elsewhere], and the bulk of the shopping and cooking. It can also be accepted that she was primarily responsible for the day to day care of the child after her birth. Apart from his role as the family income earner, solely from April 2005, the father also made contributions by the assistance given with homemaking and parenting.
23. The husband mounts a case of extravagance by the wife in her spending but apart from his own assertion to that effect, there is really nothing to corroborate or support it. To the extent he produces documents recording store purchases there are other explanations such as proximity to Christmas and there is also the wife’s evidence of the purchases in some instances being for him and for child’s clothing. In the final analysis it falls short of the goal.
24. Early in the separation there was discussion about sorting out their arrangements and the father paid $3,000 to solicitors retained by the mother to act for her.
25. They had agreed at an earlier time to sell the apartment and buy a home on the upper North Shore and they decided to continue with the sale in light of their separation. To allow that to proceed the husband later moved to rented premises and the wife arranged for removalists to take furniture and household items and place them in storage. The removal of the furniture and other chattels became the subject of dispute. From the father’s point of view it was removed and he was not informed where it was stored. The mother denies removing his things without him knowing their whereabouts and she says he has some of the items he says he did not receive or they are in storage.
26. The mother took a central role in the sale of the property by liaising with the real estate agents, she engaged stylists to present the property, she prepared the home for inspections, she co-wrote the marketing material and she proofed brochures, advertisements and signage. In the end, over $27,000 was spent on the stylist and this was a figure, according to the father, significantly in excess of the agreed outlay of $10,000.
27. The property was offered for sale by auction but they accepted a pre-auction offer of $2.19 million. The net sale proceeds were placed in an interest bearing account pending resolution of their property settlement.
28. It was subsequently agreed they would each receive $50,000 from the proceeds of sale and it was later agreed, in July 2007, they would each receive a further $180,000, the characterisation of the payments to be left to the trial judge.
29. Of the first amount she received, the mother says she paid $32,746.09 towards debts and the balance was paid towards her legal costs and disbursements. Of the second amount, she retained $60,000 and the balance went towards her legal costs and disbursements. Of the money retained she has some left [reflected in figures to be set out later] although the balance available also includes a tax refund of $11,000.
30. As for the father, he has about $119,000 of the money left and he has otherwise used it to repay $20,000 to his parents borrowed during the months he was unemployed, pay legal costs and purchase of some household items to re-establish himself.
31. As for other financial developments post separation, the father paid the mortgage of around $4,300 per month until the apartment was sold. He also paid $1,000 per week to the mother until he left the bank in March 2007. Thereafter he continued to pay $327 per week by way of child support. The recent assessment of child support payable, from 1 November 2007, is for $322 per week but he has continued to pay the sum of $327.
32. He continues to live in rented premises and the mother still lives with her parents. She says she pays her parents board of $1700 which fell into arrears when she no longer received the full amount from the father after he left his employment. He is quite sceptical about whether she pays board to her parents but there is no reason to doubt this is the family arrangement and the mother abides by it.
33. From the point of separation dispute arose about the arrangements for the child. She was only 5 months of age and was being breast fed – she still is being breast fed. Drawing on literature and research on child rearing, the mother has quite firm views about the child’s upbringing and what she needs throughout her developmental stages, including the consistent availability of her mother as her primary attachment figure and demand feeding. There has been no time set for the child to be weaned and the mother has prevaricated about the timing in her discussions with Ms T. Her views about their daughter’s developmental needs do not resonate with the father who takes a more conventional approach to the topic and he has not been receptive to her urgings to read the books and articles and research she considers worthy. She has found him to be ‘intolerant and dismissive’ [exhibit 6] and it is plain from his evidence that he considers her views marginal and her attitude to him and his role as a parent overly-directive and patronising [my summary, not his words]. It seems fair to make the general observation that if he were more open and receptive to her point of view and she were less didactic and gave him some credit as a well-intentioned and caring parent there might not have been the level of anger and frustration that has been all too apparent.
34. In any event, while contact between the child and her father has been sustained throughout the almost two years since the separation, it has been quite limited in time [she has not yet spent an overnight with her father], for a time the visits were under the supervision of the mother and then of mothercraft nurses, and at an earlier time it was required to take place at her parents’ home and then his parents’ home. The mother has seen these arrangements as necessary by reason of the father’s lack of his competence in child care and the child’s upset and unsettled behaviour around the visits. He rejects this and while he has complied with the restrictions and constraints he does not see them as necessary.
35. These and other unresolved issues have brought about a continuing downward spiral in their relations. The mother maintains she has persistently sought to discuss issues with the father through counselling but he has refused to be involved and she was considerably relieved when he agreed to take that step during the hearing. It should be said this reluctance is not necessarily a negative mark against the father whose reasons for taking that stance may be sound if for example he assessed the dynamics as unlikely to achieve any improvement. Hopefully that will not be the case.
36. The court proceedings commenced in August 2006 have seen the filing of several interim applications - one indicator of the poor state of things were the proceedings related to the child’s attendance at a Wiggles concert which they ultimately agreed about – solicitors have exchanged letters setting out grievances and they have exchanged emails [if not deleted without being read by the father] which has served their own viewpoint. In broad terms it has all been taken up in the interviews with Ms T and noted in her reports. There have also been a number of interim orders making gradual changes to the child’s time with her father and this has generally followed each of Ms T’s three reports over time.
37. Against the background, the parenting issues will be addressed before turning to the financial applications.
PARENTING
Approach
38. In making a parenting order, the best interests of the child are the paramount consideration [s 60CA]. Overarching that are several stated objects and underlying principles. In this case it may be useful to summarise them. The objects are about ensuring children’s best interests are met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s60B(1)]. The principles underlying these objects, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and that parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)].
39. There is an obligation in certain circumstances to apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility [s 61DA(1)] which relates to decision making and not about the time a child spends with each parent. Here, there is agreement the parents will retain equal shared parental responsibility. That being so, the Act obliges consideration of whether it is in the interests of a child to spend equal time with each parent and whether that would be reasonably practicable [see s65DAA(5)] and if it is to make that order [s 65DAA(1)] or, if not, whether it would be in the best interests of the child to spend substantial and significant time [see s65DAA(3)] with each parent and whether that would be reasonably practicable [s 65DAA(2)]. ‘Best interests’ are determined by reference to ‘primary considerations’ and ‘additional considerations’ [s 60CC (2) and (3)].
Family Reports
40. Ms T’s evidence has been helpful, particularly given her involvement over time and the opportunities she has had to assess relevant considerations and the child’s progress. No criticism was made about the way in which she had approached her task, her objectivity or her professionalism, and I regard her evidence as reliable and sound. Nonetheless, I have come to a more definite view about the child’s short term arrangements than she advanced although we both approached the question by balancing the same central considerations.
41. Her first report October 2006 reflects the parents’ quite opposite perspectives about the source of difficulties, relates the ongoing tension not only between the parents but involving their extended families, and identifies unresolved issues about the approach to parenting and the management of the child’s care.
42. By that time the father had engaged a mothercraft nurse to overcome the suggestion of his inexperience and to try to deal with the mother’s presence while the child was in his care. He acknowledged some limits were necessary given the child’s young age, but he regarded the constraints imposed as unnecessary and the atmosphere uncomfortable. He wanted to be able to take the child out, he saw the mother’s approach as ‘instructional’, and there were interruptions from the mother insisting the child needs to be breastfed. For her part, the mother felt she had been abandoned early in the relationship and then neglected and had been unable to secure the father’s agreement to go to mediation to address issues between them. She claimed he was inexperienced and unskilled as a parent. She discussed her commitment to and reading about ‘attachment parenting’, leading her to the view that a child needs the mother nearby always and it was therefore necessary for her to be close by the child.
43. At that stage the child impressed Ms T as robust, alert and secure, responsive and communicative, smiling and vocalising readily and physically active. She was described as secure and at ease in the presence of her father including when her mother left the room for a time and she was observed to interact with her father in a contented way and he related to her lovingly and appropriately.
44. Amongst other things Ms T identified two very different parenting philosophies: the mother had educated herself about current neonatal care practices which, though appropriate, considerably limited a shared parenting arrangement; the father was admittedly inexperienced but did not accept the need for as much ‘on demand’ attention which was preventing him from developing the child’s independence from her mother. While the mother appeared willing to help the father develop the bond with the child, Ms T said the mother did not perceive the father as accepting the need for her close involvement, she was not confident about his parenting skills, and she was anxious about the child’s well-being away from her immediate presence. For his part, Ms T said the father appeared to be open to the idea that he needs to become more skilled but he was not accepting the mother’s tuition.
45. She commented that the child had been constantly cared for by her mother, she had a secure attachment to her mother though not as yet to her father. She saw the child as needing to have contact with her father more regularly than once a week to allow that secure attachment to develop. She recommended a time schedule and she also suggested contact not take place at the mother’s home. She recommended contact change to the father’s parents home preferably three times a week or at least twice for minimum periods of 1 ½ hours, the mother to feed the child immediately beforehand, to occur during weekends and midweek. While she was able to identify the current arrangement as unsatisfactory, she found it difficult to make long term recommendations. Her short term recommendations were accepted.
46. Her second report of March 2007 was to review the changes in arrangements. Differences and conflict remained much the same, each parent aired issues about the other’s attitude and conduct and propounded different views about what was best for the child.
47. The mother was reluctant to extend the contact, she was critical of the father’s care with food and generally which she maintained affected the child’s mood on return, she outlined a detailed program for the child’s contact with her father well into her 5th year, she took a longer view about when the child would wean herself and for demand feeding to cease, she expected the child would continue to sleep with her until she is four years of age when contact could increase to five hours on certain conditions. She remained extremely critical of the father’s lifestyle and habits and expressed concern about their effect on the child’s safety and health while in his care. She expressed total commitment to building the child’s relationship with her father, but Ms T noted she was unable to see how restrictive her parenting practices are to the child’s independence and to her father’s opportunities to bond with her.
48. For his part, the father’s bond with the child had strengthened and his confidence grown, but he was frustrated about the limits imposed on his contact and, while he was willing to progress gradually in recognition of the mother’s parenting style, it was not as gradually as the mother’s proposals. He wanted to dispense with the mothercraft nurse.
49. At nearly 17 months by this stage, the child was walking confidently and vocalising, she was alert and responsive and appeared secure in her father’s care.
50. She described the father as attentive to the child’s need and she observed him ‘to stimulate her appropriately and to offer warmth and affection towards her with confidence’. From the child’s response to her father, Ms T observed an established and growing bond. She saw the father as likely to have rather limited parenting skills but he saw the need to learn and was willing to do so and he was interested in being an active and involved father. Ms T was concerned that continuing the limited contact arrangement would prevent him bonding meaningfully with the child.
51. She saw the mother as ‘an extremely attentive and anxious parent who has difficulty in fostering her daughter’s independence’. The mother had extended the time she expects the child would wean herself and she was uncertain about the child’s security in unfamiliar environments.
52. Making observations of a general nature on child development, Ms T felt it difficult to predict when overnight contact could be introduced for the child. She recommended an extension of day time visits for a period of two months at the father’s home and thereafter the time be further extended. She recommended overnight visits be introduced when the child is 2 ½ years of age provided the contact progresses satisfactorily in the meantime and for the first few occasions of overnight the mothercraft nurse or other suitable person be present. Again, after the release of her report orders were varied to take up the increased time recommendations.
53. In her third and last report of November 2007 Ms T noted continuing difficulties about the contact arrangements and the ongoing opposed perceptions of the child’s needs. The father saw the mother’s concerns about the child in his care as deliberately obstructive of his relationship with the child and the mother saw him as unable to care for the child responsibly and she was critical of his refusal to consult with her about it or to conduct himself appropriately when changing over the child’s care. There was disagreement about how often either had cancelled contact, requested time or taken up offers of make-up time [detail is given of this in percentage terms in the affidavits], and how they had communicated about the child’s medical care, her education and dietary requirements.
54. The father was keen to commence overnight contact immediately and he was angry at what he called the mother’s controlling attitude about his role as a father. Ms T commented at this point that his anger had not enabled him to be receptive about information the mother was providing or to be responsive to her efforts to be friendly with him. For her part, the mother was still feeling perplexed they had not been able to talk together about the child’s needs, she expressed concern about the father being seemingly not interested in her advice about the child’s needs and her health issues, and she remained concerned about his anger and his failure to have educated himself about responsible parenting. She reported the child waking at night distressed and no one could settle her but her mother. On the question of fostering independence, she said she had fostered independence in the child by attending various course and activities with the child.
55. Of her observations of the child [now 2 years of age], Ms T said she was settled and content with her father and grandparents. She responded to their attentions, she is mobile and talkative, and she showed age appropriate initial hesitation with Ms T. She was observed to readily settle to sleep when it was time, appropriately supervised by her father.
56. In Ms T’s opinion the child’s needs are compromised by the lack of cooperative communication between her parents who disagree profoundly about what goes on between them about their daughter’s care, and they are both extremely attentive and involved with the child.
57. On the question of when overnight visits might be introduced, she noted her previous recommendation of the age of 2 ½ years, but she observed the mother’s commitment to voluntary weaning [around the age of 4] is an impediment to extending time away from her and her concerns about the child being settled away from her overnight makes it unlikely the mother would be confident about overnight stays for some time. Ms T observed that while ordinarily a child could progress to overnight visits at 2 ½ when a secure attachment with a parent has been established, as it has been in this case, it may be inappropriate for the child to do so until she is 3 years of age.
58. Ms T again recommended increased time: the Saturday 7 hours from 9am to 4pm continue weekly progressing towards a 5pm conclusion after 4 weeks, the midweek periods continue as far as possible given the father’s work commitments and travel constraints. As for overnight, that should begin when the child turns 3 though this may require her to be weaned beforehand. If she is weaned earlier then overnight could commence at 2 ½. She also recommended that contact periods continue to occur twice a week until the child is 3 and can understand and accept less frequent contact with her father.
59. She reiterated a recommendation in each of her earlier two reports that the parents seek support and advice from an appropriate professional to assist with cooperative communication about their daughter’s needs so her independence with her father can be fostered more effectively.
60. In the course of her oral evidence Ms T elaborated on some of the views she had expressed. She did say that in her opinion the child could cope with overnight contact with her father being introduced now and he is capable of caring for her, but against that there is the mother’s anxiety about that happening before she believes the child is ready for it and there may be implications for the prospects of the move being successful if it were not resolved the mother’s way. Nonetheless, she agreed those were the considerations to be balanced.
61. The background and attitudes reflected in Ms T’s reports mirrors the other evidence and this balance is at the heart of the decision about the child’s short term arrangements.
Best interests
62. No specific submissions were made about any particular s 60 CC considerations, no doubt in recognition of the narrowness of the key issue, and a summary can be given of those that are relevant.
63. While there is a considerable disparity in what each proposes for the child, both in the short and long term, the common thread is that each parent will continue to participate in the child’s upbringing and she will spend time in the care of each parent. This implicitly recognises the importance for the child of having the opportunity to have a meaningful relationship with both parents. The question on which they differ is what time share is going to produce that outcome for her.
64. The child’s history since her birth has meant that her first attachment has been to her mother and there can be no question about this attachment. Her very young age at the time of her parent’s separation, her mother’s view of her father as lacking the requisite skills to see to her care unaided, and more particularly her mother’s commitment to a particular parenting style that has not embraced shared care of the more usual kind in such circumstances have all combined to inhibit the opportunity the child and her father have had to establish their father/daughter relationship and for her to develop a secure attachment to her father. While the time has progressed gradually and slowly, that has been done. Ms T now assesses the child to have a secure attachment to her father and that is accepted. He is also assessed as loving and appropriate in his care of her and that too is accepted.
65. Each parent takes a different perspective about the willingness and ability of the other parent to facilitate and encourage a close relationship for the child with the other and about the other’s attitude to their parental responsibilities. It is apparent the mother’s particular parenting style does not foster in the child at this stage of her development independence from her mother as her primary attachment figure and the mother is anxious and concerned about the father’s capacities. It may be the father is sceptical about whether she really is anxious and concerned or has some other motive, but there is no real reason to doubt she is being genuine; Ms T at least assessed her as such and her view is accepted. That said, the father wishes to fulfil his parental role without the constraints the mother regards as necessary and without what he sees as her overly instructive tuition. The mother is very sceptical about his capacity to care for the child in her absence, including seeing to her everyday needs and settling her if the occasion should arise, but there is also no reason to doubt his current capacities. Ms T, who has observed him with the child, assessed him as capable and, similarly, that is accepted.
66. Their different approaches, trust issues and problems with effective communication all combine to inhibit what they might otherwise provide towards the child’s needs. But that is not for a moment to doubt that each has a genuine love for their daughter and it is accepted each is genuinely motivated to do what they consider is best for her.
Parental responsibility
67. It is agreed the parents are to have equal shared parental responsibility and it is appropriate to make orders reflecting that. Their deep differences in approach are acknowledged but it would not be in the child’s interests to isolate one parent or elevate the other when it comes to decision making.
Time
68. The Act makes it necessary, therefore, to consider whether it would be in the child’s best interests and reasonably practicable for her to spend equal time with each parent and, if not, whether it would be in her best interests and reasonably practicable for her to spend substantial and significant time with each parent.
69. In this case the question of time is best approached by looking to the short term future, which by reason of the parents’ applications can be seen as being a bit beyond the child’s 4th birthday, say to the time she is 4 ½, and then to the longer term.
Short term
70. Equal time in the short term is not proposed and it can be put aside. As for substantial and significant time, both sets of proposals fit the letter of that description, as it is defined.
71. The crucial balance in achieving an outcome in the best interests of this young child is poised between two important considerations which, in turn, require consideration of the advantages or benefits for the child of introducing increased time with her father as he proposes against the disadvantages or detriment of doing so; expressed in the alternative, the advantages or benefits of adopting the time and increments the mother proposes against the disadvantages or detriment of doing so. Around that balancing process several matters are to be borne in mind: the child’s young age; the fact that she is still being breastfed; the mother’s seemingly fixed approach to parenting and their daughter’s upbringing; the father’s more liberal view of the child’s needs; the mother’s concerns about the father’s ability to adequately care for the child, more particularly overnight if she were to become unsettled; the history of outbursts and lack of co-operation between them virtually since the child’s birth but particularly since their separation; and their inability to this point to achieve effective communication as parents.
72. The mother’s apparently genuine belief about the father’s shortcomings as a carer, including his ability to comfort or settle the child were she to wake overnight, and her anxiety if that were introduced before she feels the child is ready is a very weighty consideration. As the parent responsible for most of the child’s day to day care, her ability to feel comfortable about her care is important because any anxiety she has about it may directly or indirectly rub off on the child and therefore it is important she be free from any anxiety or concern to the extent that is consistent with the child’s best interests when seen on the whole. It is true, as her counsel points out, that she has come a long way from her initial proposals to get to the point where she is now and Ms T confirms that. Nonetheless, while she has revised her proposals about progressive stages she is still of the view that overnight visits should not be introduced until the child turns 3 years of age in November of this year which is 9 months hence. In the meantime, there would be visits twice per week during the day as well as other specific special occasions.
73. Taking the more objective view, Ms T’s evidence, which is supported by the observations of the mothercraft nurse, is that the father is quite capable of looking after the child, including overnight and that the child is securely attached to him and could cope with an overnight stay. There is nothing about the father’s presentation to throw that into doubt. This also is a very weighty consideration. All things being equal, the father’s position is not unreasonable and one can readily see the advantages or benefits for the child of having extended visits with her father: the broader time frame would give her more diverse experiences, offer more chance to participate with her father in different activities and establish a routine together, support her independence, and build on the parent/child relationship in the usual way. All the indicators point to this being to her benefit. Very likely she would come to experience her father’s approach to things as quite different from her mother’s, but this is a child whose parents have polar attitudes about the type of care she needs and what is best for her – each legitimate in its own way – and that is something the child is going to learn in life before too long anyway if a common approach is not adopted. The disadvantage of adopting the father’s timetable, standing as it does in stark contrast to the mother’s, is the anxiety she has about it and the disadvantages for the child of possible repercussions. As Ms T points out, if she is anxious about it, then this may seep into and undermine the prospects of success of the change in arrangements. This would not necessarily be through any intent but because people have to be taken as you find them.
74. The balance is not an easy one: the father’s escalation of the type and duration of visits has plain merit but the mother’s concerns and anxious consideration of a timetable contrary to her own cannot be disregarded. In the final analysis, after weighing and considering both perspectives, the arrangements I propose will cover an initial period of a little over two years from now when the child will turn 4 ½ years of age. I have not adopted one timetable or the other but have steered a course somewhere between though weighted in the main more towards the mother’s viewpoint than the father’s for reasons I trust are apparent. Contrary to the father’s view, the introduction of overnight visits will be delayed but, contrary to the mother’s views, the delay will not be 9 months hence. The child will turn 2 ½ in May and that will be a timely point for overnight visits to commence. It is still three months away which is well beyond the time the father sees it as appropriate and the mother will have that time to accustom herself to the change. Thereafter there will be a gradual increase in the time, ultimately arriving at substantial and significant time in his care by the time she is 4 years of age and from there her longer term future can be considered.
75. In short, each parent’s viewpoint has legitimacy, considering what they bring as individuals to the issue, and there is obvious merit in taking either direction, but in the absence of their agreement I have adopted arrangements where neither prevails entirely and they are set out in the timetable below. I am satisfied they will be consistent with the child’s best interest.
A. from the date of the orders until May 2008
(i)each Saturday from 9am to 5pm;
(ii)each Wednesday from 8.30am to 10.30am;
(iii)Good Friday from 9am to 5pm; and
(iv)Easter Saturday from 9am to 5pm.
B. from 19 May 2008 until November 2008
(v)each second weekend from 9am Saturday to 9am Sunday subject to the father having a mothercraft nurse present throughout the first two overnight visits, to commence on the first Saturday after 19 May;
(vi)each Wednesday from 8.30am to 10.30am and the alternate Saturday from 8.30am to 10.30am;
(vii)at other times pursuant to these orders or as agreed.
C. from 19 November 2008 until 18 May 2009
(viii)each second weekend from 9am Saturday to 5pm Sunday;
(ix)each Wednesday from 8.30am to 10.30am;
(x)from Easter Sunday 9am to Easter Monday 5pm;
(xiii)at other times pursuant to these orders or as agreed.
D. from 19 May 2009 until November 2009
(xiv)each second weekend from 6pm Friday to 9am Sunday;
(xiii)each Wednesday from 8.30am to 10.30am;
(xv)three days and three nights in November 2009 on dates to be agreed and failing agreement as nominated by the father on giving one month’s notice in advance;
(xv)at other times pursuant to these orders or as agreed.
E. from 19 November 2009 until May 2010
(xxv)each second weekend from 6pm Friday to 4pm Sunday;
(xvii)each Wednesday from 8.30am to 10.30am;
(xxvi)for four days and four nights
a. during January 2010; and
b. during the Easter school holiday period
on dates to be agreed or failing agreement as nominated by the father on giving one month’s notice;
(xxvii)at other times pursuant to these orders or as agreed.
F. at all times during the period from A. to E inclusive
(xix)the child’s birthday if it does not fall on a day specified from 2pm to 5pm or other agreed time;
(xx)the father’s birthday as agreed or failing agreement from 9am to 5pm;
(xxi)On the … July each year or other agreed date to celebrate the paternal grandparents birthdays from 9am to 5pm;
(xxii)on Father’s Day each year if it does not fall on a day specified elsewhere from 9am to 5pm;
(xxiii)during the Christmas period each year as agreed and if not agreed according to the consent orders of 21 December 2007.
Notwithstanding the arrangements in A. – F. inclusive, the child is to spend time with her mother each year on Mother’s Day from 9am to 5pm, the mother’s birthday from 9am to 5pm, and on a day agreed to celebrate her maternal grandparents’ birthdays.
Longer term
76. Ms T is of the view that the longer term would be impossible to predict and she could not say whether the longer term proposal of one parent or the other would be in the child’s best interests. I agree. At this stage I could not comfortably come to a conclusion about what would be in the child’s interests beyond what has been discussed. Of course the future is always unknown and predictions have to be made in parenting proceedings about children’s longer term interests on the basis of available material. But the circumstances here are not usual; at 2 years of age this child has not yet spent an overnight in her father’s care and the arrangements over the next two years and more will introduce that development along with some block periods in his care. In my opinion, her interests really require review at that stage; I certainly could not say now that it would be in her interests to spend week about as her father proposes without knowing more of the circumstances at the time, including whether effective communication has been achieved between the parents. If week about were to be realistic, I would have thought that at least would have to have been resolved. I have chosen the age of 4 ½ years because that will leave sufficient time before the child starts school in 2011 for the parents to discuss her future and hopefully come to an agreement about what is required in her interests. They may find some assistance through further involvement from Ms T if she remains available. If not, regrettably it will have to be determined according to the circumstances and assessments appropriate to developments at the time.
77. In coming to this decision, it is appreciated that one of the additional considerations to be taken into account under s 60CC [para (l)] is ‘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’. The orders I propose, absent agreement between the parents, leave open the prospect of further proceedings in that event. But children’s interests sometimes require review and this is such a case.
School
78. It follows that it would also be inappropriate to make a decision about the child’s schooling at this point. Without knowing what arrangements would be in place for her and where she would be spending her time that issue is fraught with difficulty.
79. In saying that, it is acknowledged that the mother’s argument about her attending R School seems to be fairly strong, despite the father’s opposition. He has a legitimate viewpoint certainly, including his wish for the child to have a non-denominational Christian upbringing, but he did sign the enrolment form [she did not take steps to enrol the child at the school ‘without (his) input or agreement’] and one of his colleagues did give a reference to support the enrolment. Nonetheless, as I say, the issue is better left to be reviewed when it is known where the child will be spending her time during her school years from 2011.
Name
80. Bertram is one of the child’s middle names but the mother wants it to be part of the child’s surname and she sees no difficulty in the two names being hyphenated. Her counsel conceded the hyphenated names would be cumbersome but long ‘double-barrelled’ surnames are not all that unusual and they do no harm. After a short marriage, it would allow the child to be known by the surname of both parents in circumstances where she will not be growing up with them together and her mother has never changed her surname. As the child is the ‘end of the line’ in her mother’s family, the mother sees that as another important reason for the child’s surname to include her surname. If the Bertram name is not hyphenated she thinks it is likely to get ‘lost’ or overlooked. She concedes that in the future the child may wish to drop the hyphen and retain one or the other or have them the other way around. On the other hand, she agrees that at a later time the child could adopt the hyphenated names although she thinks that is less likely to be done retrospectively.
81. All of this has merit and is no doubt motivated by the mother’s view of the child’s best interests. Nonetheless, the greater weight attaches to the father’s point of view and the arguments he advances. That retains the name for the child on her birth certificate which includes her mother’s surname as the name before her surname of Zimmerman. Whether or not there were disputes about it at the time and the mother ‘did not feel equal to the argument’, the fact is that the child is registered by that name now and no steps were taken to do anything about it until this litigation. At just a little over 2 years of age, obviously there is nothing to suggest the child has any identity issues, or her name as registered at birth is causing her confusion or there is any other relevant consideration sufficient to bring about a change to what was put in place at her birth.
82. The application will be dismissed.
Form of orders
83. The orders set out earlier implement these decisions. Should there be consent about some arrangement contrary to or in addition to what is reflected there the parents will have the opportunity to contribute that to the formal orders before they issue in two days after the publication of judgment by submitting a joint Minute of those matters.
FINANCIAL
Assets and liabilities
84. The assets and liabilities are set out below. In so far as it is necessary to comment on the lists that will follow.
Assets
Joint
Controlled monies account - (proceeds sale of M) 1,101,836
Furniture and household effects Divided
Husband
Commonwealth Bank, Ing, BankWest Telnet 119,290
2030 shares Telstra Limited 8,831
4000 shares in Ten Network Limited 10,888
2007 Nissan X-Trail 35,000
2003 Audi 51,940
Zimmerman Superannuation Fund 211,764
Legal costs 145,000
Frequent Flyer points (1,100,000) 10,000
Furniture and household effects 20,000
Esanda Debenture 50,000
662,713
Less liabilities
Amex credit card 335
Commonwealth Master card 3,705 4,040 658,673
Wife
Mercedes 27,890
Bertram Superannuation Fund 174,880
Legal costs 112,423
Staff Credit Union Account 35,167
Jewellery 17,600
Frequent Flyer points (35,134) 340
Monies held in Trust A/c 24,416` 392,716
Total Net assets: 2,153,225
85. Mr Lloyd submits for the husband that there should be certain add backs. The first is the initial $3,000 the husband paid to solicitors for the wife to obtain legal advice. The second is the sum of $17,000 representing the overrun on the agreed cost of styling the M apartment for sale. Neither submission has any merit.
86. To the extent there is difference of opinion about whether the $50,000 debenture investment for the child’s education should be included, that should be resolved in favour of its inclusion. While it might be earmarked for future education expenses it is available to the husband, if he wants to use it for another purpose and there is nothing to prevent that. I do not see it as capable of being quarantined from their joint assets.
Assessment of contributions
87. Submissions were based on taking a global approach to the assessment of contributions and that is appropriate to the circumstances.
88. It is apparent from the history recounted earlier that each has made contributions that come within the description of those set out in s 79(4)(a)-(c). This was a short relationship and marriage. Each introduced some property initially, including cash, superannuation and chattels, but their total assets were disproportionate in value and the husband was by far in the stronger financial position. Within a short time they purchased together as joint tenants the M apartment acquired with some of the assets they introduced and joint borrowings. The husband’s cash contribution to the acquisition of their home was four times that of the wife. Their borrowings were related not just to the balance of the purchase price and costs but also the special levy for repair work on the building and for renovations. Whatever their disputes about the renovations or about the cost of selling the apartment after their separation and whatever their expectations may have been from its sale, they made money on the arrangement in the relatively short time they held the property.
89. The husband earned a comparatively significant income including bonuses over the time they were together and contributed his earnings to their common purposes, he paid the expenditure related to their wedding, and he serviced the borrowings to acquire the property and undertake the renovations. After April 2005 he was the sole income earner for the family. He worked hard but when not meeting the demands of the job he contributed in other ways in the home and with their daughter who was born 5 months before they separated. He has contributed towards the wife’s expenses since their separation and, with the capital payments she has received from the funds invested, she has been adequately provided for in that time. He has also met his responsibilities towards their daughter, not only with having her in his care as discussed earlier but also with the payment of child support.
90. The wife’s earnings were less than the husband’s but she contributed what she earned towards their common goals. From the time she ceased employment in April 2005 she did not return to paid work but she took a pivotal role with oversighting the renovations, she attended to what was to be done around the house that was not done by paid help, and she cared for their daughter after her difficult birth. Since the separation she has further contributed by taking responsibility for presenting the property for sale and doing the liaison work necessary to achieve that as well as bearing the major responsibility for their daughter’s day to day care.
91. Each has received capital payments from the sale proceeds and spent it in the direction generally indicated, including legal fees which are included in the list of their assets along with the balance of any funds retained. To the extent the funds received are not reflected in the lists they will be retained.
92. There is reference in the affidavits to contributions other than those mentioned but they are of less significance than the more central contributions.
93. On behalf of the wife Mr Mater submits that their initial contributions should be assessed in the proportions of 70/30 and he undertook certain calculations to make the submission that their contributions overall should be assessed at 70/30 in the husband’s favour. Mr Lloyd for the husband submits an 80/20 apportionment is more appropriate. But in my view that is too heavily weighted in his favour and Mr Mater’s estimate is more within the range though I would not necessarily align myself with the mathematical way he went about calculating it. With reference to his submissions, I should not pass over a passing reference he made when discussing credit when he cited examples of the language the husband had used in his affidavit to respond to the wife’s affidavit evidence. His submission is to the effect that the wife’s language goes to what he calls the ‘Kennon issue’ which is a reference to the Full Court decision in Kennon and Kennon (1997) FLC 92-757 where the majority [Fogarty and Lindenmayer JJ] discussed the issue of violence and its intersection with property settlement extensively and concluded that a course of violent conduct against one party where it is demonstrated to have an adverse impact upon that person’s contributions or future needs is a factor to be taken into account, although they made it plain it was to be confined to ‘exceptional’ cases. From the majority at p 84,295:
‘However, in our view, s.79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).’
94. Even if the basic proposition about the husband’s conduct were accepted, the circumstances here fall short of the sort of case contemplated by Kennon and nor is there any sufficient evidence of the impact on the wife and the consequences for her contributions.
Sections 75(2) factors
95. There is no dispute about the 75(2) factors favouring the wife. The difference relates to the size of the apportionment in her direction. It is common ground that there are two central relevant factors: the responsibility for the child’s care so far as that can be foreseen and disparity of earning capacity.
96. The wife will be the predominant carer with the major responsibility for the child’s day to day care for the foreseeable future. By the same token, she will be supported with that by the husband and he will contribute appropriately to the child’s financial needs through payment of child support. What the longer term future holds is difficult to say but the years of her dependence ahead constitutes a fairly weighty factor nonetheless.
97. As for disparity of earning capacity, the husband is in a relatively strong position with an income of around $286,000 gross per annum plus the entitlement to bonuses based on performance. He has not yet received any from his new job but if they are in the order of what he received from his former employment then this would take his income over $600,000 gross per annum. The wife has qualifications and expertise which supported her form employment from which she earned an income of $140,000 per annum up until April 2005. She has now been out of the paid workforce for almost three years and in the meantime the significant development impacting on her commitments has been the added responsibilities by reason of the child’s birth. Quite apart from her parental responsibilities as she assesses them, there is an issue about her capacity for work and therefore her capacity to earn income and contribute to her own support. That has to be resolved.
98. Despite her qualifications and previous experience up to April 2005 and the level of earnings she was able to command, she maintains she is unable to work not just because of her responsibilities to the child but also because she has physical ailments resulting from injuries suffered much earlier in life before she met the husband: the first was a light aircraft accident in 1986 and the second injury was in 1997 while she was carrying a heavy object. She maintains she suffers pain in the neck and shoulders and has RSI. As she sees it she certainly could not earn the level of income she did previously because that required her to work not less than 12 hours a day and interstate travel was involved. She says she will consider part time work when the child starts school so long as it meets her health needs and she can fit it within school hours but she expects to have to retrain before rejoining the workforce.
99. The upshot of the father’s evidence is that any impairment to her health preventing her taking up employment is a recent invention, it was not something she spoke of other than occasionally in the time they were together, and nor did she seek treatment for it so far as he was aware.
The wife did not present any contemporary medical evidence on her condition but she did tender a bundle of records indicating that she had over the years sought treatment, including physiotherapy. Even so, it was not much to go on in any evaluation of her present state. In the final analysis there can be no doubt she did suffer injuries in the past but she has not sufficiently established her current state, and nor the consequences for her future employment. To that there might be added the observation that whatever her physical state of health she did work full time until April 2005 when she accepted a redundancy from a relatively well paid job. These considerations combine to suggest on the probabilities that she could maintain employment if she chose – and if she did not have the responsibilities related to the child’s care. But even if she were to re-enter the workforce there still remains a significant disparity in what she could earn and what the husband is earning. That weighs solidly in her favour.
Mr Lloyd submits for the husband that a 10% adjustment in her favour would be an appropriate recognition of these factors, bringing the outcome to a 70/30 result. Mr Mater, on the other hand, submits that an adjustment of between 20% - 25% is called for. This range is incongruent with the 13% reflected in the written case outline presented for the wife and Mr Mater met the observation on the difference with the comment that she has an application for maintenance the remark ‘there is a degree of overlap there somewhere’. Perhaps that is so in that her application for maintenance will be assessed having regard to her property entitlement, but it is a separate process from assessing a s 75(2) adjustment.
Considering the magnitude of the factors discussed, in my opinion an appropriate weighting would be a further adjustment to the wife of 15% of the total net assets. That amounts to $322,984 which is not an insubstantial sum.
Conclusion – just and equitable
That would render the wife entitled to receive 45% of the value of current assets and the husband to receive 55%. Calculated against net assets of $2,153,225, the wife would be entitled to receive $968,952 and the husband $1,184,273.
It will be noted from the earlier list of their assets that furniture and household effects were noted as having been divided. There was dispute agitated in the affidavits about household items and there was cross-examination about it, but neither counsel made any submissions about furniture and household goods at the end of the hearing. In those circumstances I do not propose making any order about those chattels and will take the topic to have been agreed or items will be left where they have fallen. If there is agreement to the contrary the parties can, by consent, include it in the orders to issue.
Putting aside the balance of the sale proceeds invested, the wife has assets totalling $392,716. To receive her entitlement, she will need to receive a further $576,236 from the invested funds. She will then have those funds, a Mercedes motor vehicle, superannuation of almost $175,000, savings of over $35,000, chattels and a significant portion of her legal costs paid or held on her account in trust. The husband, on the other hand, has assets worth $658,673 and therefore to receive his entitlement he will need to receive a further $525,600 from the invested funds. He will have those funds, two motor vehicles, some shares, savings of almost $120,000, superannuation of around $210,000, a good portion of his legal fees paid, and he will retain the Esanda debenture investment. His liabilities are minor.
To the extent there is any interest earned over the $1,101,836 held at the time of hearing, it can be divided between them in the same proportions of 55/45.
I am satisfied this will bring about a just and equitable result.
SPOUSE MAINTENANCE
Under the provisions of s 72 of the Act, the husband is liable to maintain the wife, to the extent that he is reasonably able to do so if she is unable to support herself adequately whether
(a)by reason of having the care and control of a child under the age of 18 years; or
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason
having regard to any relevant matter referred to in S75(2).
The threshold question to be determined is whether the wife is unable to support herself adequately and to some extent that has already been discussed. I am satisfied that for at least the next couple of years until the child’s arrangements are reviewed and her longer terms future is resolved that it would be reasonable and consistent with the parties’ earlier arrangement to see the wife as not returning to paid work. Her argument about incapacity for appropriate gainful employment by reason of past injuries does not make the hurdle, but her responsibilities for the child do.
If there were all there were to it, then a finding of need would follow and the process undertaken of calculating her entitlement and consideration be given to the period it ought to run. There is no real question of the husband’s capacity to pay. The complicating factor here is the entitlement she has to a large cash sum which she could invest to earn income for her own support and therefore meet at least part of her needs from that source. The difficulty, like so many cases where applications for periodic spouse maintenance is linked to property proceedings, is that much of the necessary calculation becomes guesswork because no evidence has been led about relevant considerations such as what is to be done with the cash payment received, will she remain living with her parents and for how long, will she acquire housing elsewhere, if the money is invested what rate of return could be anticipated, and so on. None of this has been addressed.
The wife’s claim is now for payment of $1,311 per week, having deducted from the initial sum those items that relate to the child. This represents an income of $68,000 tax free which means, of course, that the taxable income to generate it would be significantly higher. It is made up of the board she pays her parents for herself and the child of $392 per week plus other expenditure included in Part G of her financial statement along with other expenses set out in an attachment to it. She was cross examined about some of these figures and while it seems reasonable to observe that some of the claims might be pruned it is also reasonable to look to the husband’s claims and the level of expenditure he is claiming in areas where criticisms are made of her figures.
Assuming she will remain in her present situation with her parents for the foreseeable future, the central question then becomes what she could earn on investment of the cash funds she retains and will receive to meet that level of need. Given the amount involved, she might earn upwards of $30,000 per annum which of course would be taxable. If that were the case her income would need to be supplemented to bring her total income to a reasonable level.
In the face of the inherent uncertainty, I have made the assessment she should have her possibly income from investments supplemented by payment of a further $600 per week by the husband. If regard is had to the child support he pays, an additional $600 per week will bring his financial commitment up towards the $1000 per week he was paying after separation without any apparent complaint from either until he left his employment.
The question is then the duration of such an order. Mr Lloyd submits on behalf of the husband that it should only operate until the child either attends pre-school or until the wife re-enters the workforce even part time. Mr Mater, on the other hand, submits it should run indefinitely and if that is not accepted then for a couple of years such as until the child’s 4th birthday when it can be reviewed.
In my view, this is not a case where the payment should run indefinitely; the wife needs financial support while the child is so young but she has a demonstrated capacity for employment and it may well be seen as appropriate that she exercise it in the future. Indeed, she herself envisages working again when the child starts school though she plans to confine it to school hours and appears to be considering retraining in some area suited to that.
In my opinion, it will be appropriate to review the situation at the same time as the arrangements for the child are being reviewed. Therefore the order will operate until May 2010. Of course if the wife were to find work sufficient to meet her needs in the meantime it would be reviewed on that earlier event.
Form of orders
The financial orders require no complicated drafting and are set out earlier. Should there be some other form thought appropriate the parties will have two days to submit their consent alternative before the orders formally issue.
Schedule 1 [father’s proposals]
‘24. That [the child] live with the Father as follows;
(i) From date of orders to Friday 2 May 2008:
(a)Each first Saturday of each fortnight from 9am to 5pm and each second Saturday of each fortnight from 10am on Saturday until 10am on Sunday;
(b) Mid week on Thursday from 8.30am to 10.00am;
(c)Block contact of seven days consecutive overnight time, on 30 days notice to the Mother, on one occasion, with the intention the Father be permitted to take [the child] on holidays;
(d) Such other times as agreed between the parties.
(ii)From Friday 2 May 2008 to the date of [the child’s] fourth birthday:
(a)The first Saturday of each fortnight from 9am to 5pm and the second Saturday of each fortnight from 6pm on Friday to 6pm on Sunday;
(b)Mid week on Wednesday from 5.30pm to 10.00am on Thursday morning;
(c)Block contact of consecutive overnight time totalling 4 weeks each year, on 30 days notice to the Mother, on two occasions each year with each occasion to be at least 120 days apart and spanning no less than 7 days and no more than 14 days, with the intention the Father be permitted to take [the child] on holidays;
(d) Such other times as agreed between the parties.
(iii) From the date of [the child’s] fourth birthday:
(a)Each alternate week from 6pm Sunday to 6pm the following Sunday on a fortnightly basis;
(b)Block contact of consecutive overnight time totalling 4 weeks each year, on 30 days notice to the Mother, on one or two occasions each year with each occasion to be at least 120 days apart and spanning no less than 7 days and no more than 30 days, with the intention the Father be permitted to take [the child] on holidays;
(c) Such other times as agreed between the parties.
25.That in addition to the time as set out in Order 2 above, [the child] spend time with the Father;
(a)Christmas Day as agreed or failing agreement from 9am to 1pm;
(b)Christmas Eve or such other day of the Father's family Christmas celebrations as agreed or failing agreement from 12noon to 5pm, with the Father to provide notice to the Mother of the day he will spend time with [the child] in accordance with this Order seven days in advance;
(c)Boxing Day as agreed or failing agreement from 12pm to 5pm;
(d)Easter Sunday as agreed or failing agreement from 9am to 6pm;
(e)[The child’s] birthday for a period of three hours, as agreed between the parties, or if the parties cannot agree from 9am to 12 noon;
(f)The Father's birthday as agreed or failing agreement from gam to 6pm;
(g)On […] July each year, for the purpose of celebrating the paternal grandparents' birthdays, for a period of three hours, as agreed or failing agreement from 9am to 12noon;
(h) Father's Day from 9am to 6pm;
(i)On each public holiday as agreed or failing agreement from 9-1 pm;
(j) Such other times as agreed between the parties.
28.That [the child’s] full name be declared as “[… Bertram Zimmerman]”, or “[… Zimmerman]” for short, and that each party provide to the other an undertaking that they will not attempt to vary or refer to [the child] by any other name.
Schedule 2 [mother’s proposals]
‘2. The child spend time with the father as follows:
2.2. From 1 January 2008 until […] November 2008
2.2.1. From 9am to 4pm on [father’s birthday] January 2008;
2.2.2.Each Tuesday (with the exception of 1 January, 15 July and […] November) from 8.30am to 10am;
2.2.3. Each Saturday from 9am to 5pm;
2.2.4.On […] July 2008 from 9am to 12noon (celebrating the paternal grandparents’ birthdays);
2.2.5. From Good Friday from 9am to 4pm;
2.2.6. From Easter Saturday from 9am to 4pm;
2.2.7.On the New South Wales Bank holiday from 1.30pm to 5.30pm;
2.2.8. On Fathers’ Day from 9am to 4pm;
2.2.9. On […] November from 9am to 12noon (child’s birthday);
2.2.10.On 24 December from 12noon to 7pm (being the traditional European Christmas celebration time);
2.2.11.Between 9am and 4pm on a day to be nominated by the father 2 months in advance between 1 November and 14 December (being the date of the [Zimmerman] extended family Christmas celebration).
2.3. From […] November 2008 to 31 December 2009:
2.3.1.From 9am to 5pm on […] January 2009 (father’s birthday);
2.3.2. Each alternate Saturday from 9am to 1pm;
2.3.3.Each alternate weekend from 9am on Saturday until 9am on Sunday;
2.3.4.On […] July from 9am to 12noon (celebrating grandparents’ birthdays);
2.3.5. From 9am on Good Friday until 9am on Easter Saturday;
2.3.6.On the New South Wales Bank holiday from 1.30pm to 5.30pm;
2.3.7. On Father’s Day from 9am to 5pm;
2.3.8.On […] November 2009 from 9am to 12noon (child’s birthday);
2.3.9.On 23 December 2009 from 12noon to 7pm on 24 December (being the traditional European Christmas celebration time);
2.3.10.Between 9am and 5pm on a day to be nominated by the father 2 months in advance between 1 November 2009 and 14 December 2009 (being the date of the [Zimmerman] extended family Christmas celebration).
2.3.11.From 9am on 26 December 2009 to 9am on 27 December 2009
2.4. From 1 January 2010 and thereafter:
2.4.1. From 9am to 5pm on […] January (father’s birthday);
2.4.2.During [the child’s] school and pre-school terms each alternate weekend from 9am Saturday until 5pm on Sunday (commencing 9 January 2010);
2.4.3.On […] July from 9am to 12noon (celebrating the paternal grandparents’ birthdays);
2.4.4. From Good Friday from 9am to 5pm on Easter Saturday;
2.4.5.On the New South Wales Bank holiday from 1.30pm to 5.30pm;
2.4.6. On Father’s Day from 9am to 5pm;
2.4.7. On […] November from 9am to 12noon (child’s birthday);
2.4.8.From 9am on 23 December to 7pm on 24 December (being the traditional European Christmas celebration time);
2.4.9.Between 9am and 5pm on a day to be nominated by the father 2 months in advance between 1 November and 14 December (being the date of the [Zimmerman] extended family Christmas celebration);
2.4.10.For 4 block periods each year, 3 of which shall be not more than 7 days and one of which shall be not more than 14 days to occur during the child’s school holidays provided that the father shall give to the mother 2 months’ notice in writing in advance of his intention to spend time with the child during those periods. Provided that the 14 days block periods shall not takes place prior to 1 January 2011 and that only one block period may be taken during any school holiday period.
3.Notwithstanding the provisions contained in Order 2 the child spend time with the wife as follows:
3.1. 9am to 5pm on Mothers’ Day each year;
3.2.From 9am to 5pm on […] January each year (the mother’s birthday)
3.3.From 7pm on Christmas Eve until 9am on Boxing Day each year;
3.4.From 7pm on Easter Saturday until 9am on Easter Monday each year.
17.That the child’s full name be designated as “[… Bertram-Zimmerman]”, and each of the parties be and is hereby restrained from permitting the child to be known by any other full name and that both parties do all acts and things to cause the child’s certificate of birth registration to be varied accordingly.
Schedule 3 [husband’s proposal]
‘1. That from the sale proceeds of [the M property], currently held by Westpac Bank controlled monies account number […] , in the amount of $1,433,590.23 at 16 May 2007; $150,000 be paid to the Wife and the balance thereafter be paid to the Husband.
2.That the $50,000 previously received by each of the parties from the sale proceeds of the [M] property, and any further distributions of the sale proceeds of the [M] property from the funds currently held by Westpac Bank, account number […], be characterised as an interim property settlement.
3.That the Husband is entitled to the accumulated balance of all his superannuation funds to the exclusion of the Wife.
4.That the Wife is entitled to the accumulated balance of all her superannuation funds to the exclusion of the Husband.
5.That the Husband is entitled to the accumulated balance of all of the bank accounts in his name to the exclusion of the Wife.
6.That the Wife is entitled to the accumulated balance of all of the bank accounts in her name to the exclusion of the Husband.
7.That the Husband is entitled, to the exclusion of the Wife, to all shares presently held in his name.
8.That the Wife be entitled, to the exclusion of the Husband, to retain all the jewellery presently in her possession.
9.That all insurance policies become the sole property of the beneficiary named therein.
10. That the wife be entitled, to the exclusion of the Husband, to all items listed on annexure "B" hereto. In the event that the Husband is in possession or control of any of the items listed on annexure "B" (including items presently being stored by Nuss), he will make these available for collection by the wife within 14 days of the making of these orders.
11.That the Husband be entitled, to the exclusion of the Wife, to all items listed on annexure "C" hereto. In the event that the Wife is in possession or control of any of the items listed on annexure "C" (including items presently being stored by Nuss), she will make these available for collection by the Husband within 14 days of the making of these orders.
12. That the Husband be declared, as between the parties, as the sole owner in law and in equity of the Audi motor vehicle, registration number […]. In the event that the Audi is currently registered in joint names, the wife shall do all things and sign all documents necessary to transfer to the Husband all her right title and interest in the Audi within fourteen (14) days of the making of these Orders.
13. That the Wife be declared, as between the parties, as the sole owner in law and in equity of the Mercedes registration number […]. In the event that the Mercedes is currently registered in joint names, the Husband shall do all things and sign all documents necessary to transfer to the Wife all his right title and interest in the Mercedes within fourteen (14) days of the making of these Orders.
14. That the Husband be declared, as against the wife, the sole owner in law and in equity of all frequent flyer points presently held in his name.
15. That the Wife be declared, as against the Husband, the sole owner in law and in equity of all frequent flyer points presently held in her name.
16. That except as provided herein, the husband and wife each be entitled solely, to the exclusion of the other, such pension benefits, and other entitlements including but not limited to annuity entitlements, as at the date of these Orders and to which they are or might become entitled to in their own right.
17. That unless otherwise specified in these Orders and without limiting these Orders:
(a) Each party be responsible for their own debts in their own names including but not limited to credit cards;
(b) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;18. Note that each of the parties agrees that it is the intention of these Orders herein that they should end finally all matters of a financial nature in dispute between them and that the Orders are intended to be in full and final settlement of all claims that each party may have against the other pursuant to Part VIII of the Family Law Act 1975 (Cth).
Spouse Maintenance
22. There be no Order for Spousal Maintenance.’
Schedule 4 [wife’s proposal]
‘18.Within 14 days of the date of the making of this Order both parties do all acts and things and sign all documents necessary to cause Clinch Neville Long Letherbarrow Solicitors to pay one-half of the [M] proceeds to each of the parties.
19.The wife transfer all her right title and interest in the following items of personal property and do all acts and things necessary to allow the husband to collect the items from Nuss Removals & Storage (at his expense):
19.1. Side sitting crystal decanter;
19.2. […] oil painting (damaged by husband);
19.3. Avanti steak knives
20.Except as specifically provided by any paragraph comprising this order to the contrary, as against the husband, the wife is the sole owner of and the husband has no interest in:
20.1. the wife’s motor vehicle;
20.2. the wife’s superannuation entitlements;
20.3. the wife’s bank accounts;
20.4. the wife’s household effects;
20.5. the wife’s jewellery;
20.6. the wife’s Frequent Flyer Points;
20.7.all other personal property (including choses in action) of whatsoever nature and kind in the possession of the wife at the date of the making of this order.
21.Except as specifically provided by any paragraph comprising this order to the contrary, as against the wife, the husband is the sole owner of and the wife has no interest in:
21.1. the husband’s motor vehicles;
21.2. the husband’s superannuation entitlements;
21.3. the husband’s bank accounts;
21.4. the husband’s household contents;
21.5. the husband’s frequent flyer points;
21.6.all other personal property (including choses of action) of whatsoever nature and kind in the possession of the husband at the date of the making of this order.
22.Both parties do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of this Order.
23.Except as specifically provided for by any paragraph comprising this Order to the contrary:
23.1.the husband indemnify the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband;
23.2.the wife indemnify the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife.
24.Except as specifically provided for by any paragraph comprising this Order to the contrary, each of the husband and the wife release the other from all debts owing from one to the other.
Spouse Maintenance
25.The husband pay or cause to be paid to the wife as and by way of spouse maintenance the sum of $1,311 [as amended] per week commencing on the date of the making of this order with the first payment to be made on that date and thereafter payments to be made weekly.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
Associate:
Date:
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Consent
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Remedies
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