FATHER SEEKS FOR EQUAL SHARED PARENTAL RESPONSIBILITY AND 60-40 PROPERTY DIVISION WHILE THE MOTHER SEEKS SOLE PARENTAL RESPONSIBILITY AND CHANGE OF THE CHILDREN’S SURNAME

Bickford & Bickford [2020] FCCA 2818 (15 October 2020)

This is a parenting and property proceeding where there are allegations by the Mother of family violence during the relationship and post-separation by the father. The mother also sought orders to change the children’s surname to her current partner’s surname.

Facts:

The Court has before it competing applications in relation to parenting and property matters

The Applicant sought an order for equal shared parental responsibility.  The principal contention of the Applicant was that the children enjoy a meaningful relationship with him and that he ought to be permitted to continue to build and develop that relationship.  He sought orders that expanded the time he presently spends with the children.

The Respondent sought an order for sole parental responsibility.  She sought an order that the children live with her, and spend no time with the Applicant, except by written agreement.  She also sought an order that the surname of each child be changed to ‘B’. The respondent alleged and has been established to the satisfaction of the court  that the Applicant engaged in family violence toward the Respondent. Those findings include findings that the Applicant has verbally abused and insulted the Respondent, that he taunted her, and that on one occasion, he threw keys at her and abused her.

In terms of property, the Applicant seeks that the Respondent, among other things, pay to him the sum of $78,216, representing a 60/40 split of property pool in his favour.  He also seeks to retain the majority of his superannuation, with a superannuation splitting order occurring from his superannuation to the Respondent in the sum of $8,250. The Respondent submits that as matters stand, there should be no further division of nonsuperannuation assets between the parties. The Respondent also seeks an equal division of the parties’ collective superannuation.

The Applicant conceded in closing submissions that an adjustment pursuant to section 75(2) of the Act in favour of the Respondent was appropriate, given that she retains primary care of children.

Issue:

• Should parties have equal shared parental responsibilities over the children?
• Should the children’s surname be changed?
• Should the divicion of the parties’ properties be 60-40?

Law:

• Family Law Act 1975 60CA, 60CC, 61C, 61DA, 65DAA, 75

Analysis:

The court finds that the presumption of equal shared parental responsibility has not been rebutted. It found that only one incident of family violence occurred in front of the children. It is also an incident that occurred in a context where the Respondent was taking steps to establish a new relationship with her partner, and to exclude the Applicant from the children’s lives.  The court did not make any finding that the Applicant has abused the children or has committed violence upon them.  In fact, the evidence points in the other direction. The children have a loving relationship with their father, are pleased to see him, and do not display any of the traits of being fearful of him.

The court concludes that the presumption of equal shared parental responsibility has not been rebutted. For the above reasons, the court will make an order that the parties have equal shared parental responsibility for the children.

The Respondent seeks an order that the children’s surnames be changed to B, the name of her current partner.  As the court have indicated previously, the court was not taken to any evidence to support such an order being made. Nor was any substantive submission made by Counsel for the Respondent in support of it. The court declines to make an order that the children’s surnames be changed to B.  The court is not satisfied that such an order is in the children’s best interests.

With respect to property, the court agrees that it is appropriate to make an adjustment in favour of the Respondent as a result of her retaining primary care of the children, and those children being very young. I am of the view that the asset pool, inclusive of superannuation, should be divided as 53% to the Respondent and 47% to the Applicant.

The above division will leave the Applicant with approximately $78,000 in cash which consists of his $50,000 in savings and the payment from the Respondent, and his superannuation of approximately $63,000. The Respondent will retain the Property valued at $560,000, the mortgage attached to the Property of $4!0,000 and her superannuation of approximately $37,000.

Conclusion: The court orders that: The parties have equal shared parental responsibility for the children, The children continue to use the surname “Bickford” and that the division between the parties’ property be 53% to the Respondent and 47% to the Applicant.

#parenting #property