Abernethy & Abernethy
[2009] FMCAfam 426
•25 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABERNETHY & ABERNETHY | [2009] FMCAfam 426 |
| FAMILY LAW – Children – high conflict between parents impacting on children – teenage daughter refusing to see or speak to father – nine year old son unable to freely express sport preference without appearing to favour one parent – father seeking order that parents and daughter attend family therapy – with whom son should live and spend time. FAMILY LAW – Property settlement – pool of divisible assets – add-back of jointly borrowed funds spent by one spouse after separation – assessment of contributions – contributions on behalf of one spouse by spouse’s parents. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 65DAC(2) & (3), 75(2), 79 Marriage Act 1961 (Cth), s.23B(1)(b) & (2) |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 P & P, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340 |
| Applicant: | MR ABERNETHY |
| Respondent: | MS ABERNETHY |
| File Number: | PAC 3735 of 2007 |
| Judgment of: | Halligan FM |
| Hearing dates: | 19 & 20 May 2008, 10 & 11 December 2008, 27 March 2009 |
| Date of Last Submission: | 27 March 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 25 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hodgson |
| Solicitors for the Applicant: | Malouf Solicitors |
| Counsel for the Respondent: | Mr Thistleton |
| Solicitors for the Respondent: | H C Stathis & Co Solicitors |
ORDERS
All prior parenting orders in relation to the children [X] born in 1994 and [Y] born in 1999 are discharged.
The husband and the wife shall have equal shared parental responsibility for the children.
[X] shall live with the wife.
The wife shall:
(a)ensure that correspondence and gifts received at her home for [X] from the husband are given to [X] unopened;
(b)periodically encourage [X] to communicate and spend some time with the husband, and to seek professional counselling assistance to attempt to resolve the issues that have arisen in [X]’s relationship with her father; and
(c)immediately facilitate any wish expressed by [X] to communicate or spend time with the husband, or to have professional counselling assistance to attempt to resolve the issues that have arisen in [X]’s relationship with her father.
Subject to order (7), [Y] shall live with the husband:
(a)
During school term, each alternate week from 5 pm Sunday to
5 pmthe following Sunday;
(i)commencing on the first Sunday after the making of these orders; and
(ii)after each school holidays thereafter, if the child lived with the mother for the second half of the school holidays, recommencing at 5 pm on the last day of the holidays, the period the child lives with the husband so commencing to end at 5 pm on the first Sunday of the new school term, and otherwise recommencing at 5 pm on the first Sunday of the new school term.
(b)For the first half of all school holidays commencing in even numbered years and for the second half of all school holidays commencing in odd numbered years.
For the purposes of these orders, school holidays shall be taken to commence on the day after the last day of a school term and conclude on the day before the first day of the next school term.
Subject to order (8), [Y] shall live with the wife at all other times.
Notwithstanding orders (5) and (7), [Y] shall spend time with the parties as follows-
(a)On his birthday, with the parent with whom he is not otherwise living that day, for a period of 3 hours as agreed, and failing agreement, from 4 pm to 7 pm;
(b)On each of his parent’s birthdays, if not otherwise living with the parent on that day, for a period of 3 hours as agreed, and failing agreement, from 4 pm to 7 pm;
(c)
On Mother's Day if not otherwise living with the wife before
5 pm, with the wife from 9 am to 5 pm;
(d)
On Father's Day if not otherwise living with the husband before
5 pm, with the husband from 9 am to 5 pm;
(e)On [X]’s birthday, if [Y] is not otherwise living with the wife on that day and if [X] does not spend time with the husband on that day, with the wife for a period of 3 hours as agreed, and failing agreement, from 4 pm to 7 pm;
(f)
At Christmas, with the wife in even numbered years and with the husband in odd numbered years, from 4 pm Christmas Day to
4 pmBoxing Day;
(g)
At Easter, with the wife in even numbered years and with the husband in odd numbered years, from 4 pm Easter Sunday to
4 pm Easter Monday.
The husband shall collect [Y] from the wife's residence at the commencement of time the child is to spend with him, and the wife shall collect [Y] from the husband's residence at the commencement of time the child is to spend with her.
Each parent may attend any of [Y]’s schooling or extra curricular activities even if the child is not living or spending time with the parent at that time.
Each party is restrained from denigrating the other party and members of the other party’s family or household to or in the presence or hearing of either child, and shall do all things necessary to ensure that neither child is exposed to any other person doing so, including but not limited to causing any person doing so in the party’s home to immediately leave and remain away from the party’s home and removing the child or children from the presence and hearing of any person doing so other than in the party’s home.
Both parties shall attend a post separation parenting program as soon as possible, and for this purpose:
(a)The husband shall within 21 days after these orders are made notify the wife in writing of at least two post separation parenting programs provided by different program providers;
(b)The wife shall, within 14 days of being provided by the husband with at least two post separation parenting programs provided by different program providers, notify the husband in writing of which of the programs the parties are to attend;
(c)If the wife fails or refuses to notify the husband of the program the parties are to attend in accordance with this order, the husband shall within 7 days after the expiry of the time under order (11)(b) notify the wife in writing of the program, being a program notified to the wife under order (11)(a), the parties are to attend;
(d)Within 7 days after the notification of a program the parties are to attend in accordance with this order, both parties shall arrange, and subsequently shall attend, the earliest available appointment with the program provider to seek participation in the program;
(e)If the program provider accepts the parties for the program the parties are to attend under this order, the parties shall attend the program;
(f)If the program provider advises the parties they are not suitable for the program they are to attend under this order, and recommends another program or programs to the parties, the parties shall attend that program or those programs instead;
(g)The parties shall equally bear the costs of any program or programs they attend under this order.
The husband shall, within eight weeks after these orders are made, pay to the wife the sum of $192,830 (the sum).
On payment of the sum to the wife:
(a)The wife shall;
(i)transfer to the husband all her interest in the property known as Property M New South Wales, being the whole of the land in Folio Identifier [3] (the Property M property); and
(ii)cause the joint loan secured on the property known as Property C New South Wales being the whole of the land in Folio Identifier [2] (the Property C) to be discharged;
(b)The husband shall transfer to the wife all his interest in the Property C property.
The wife shall indemnify the husband in relation to any claim by the wife's parents or either of them against the husband for any moneys said to be owed jointly or severally by the parties or either of them to the wife's parents or either of them.
If the husband fails or refuses to pay the sum in accordance with order (12), both parties shall do all things and sign all documents necessary to sell the Property M property and to cause the proceeds of sale, after payment of agents commission and costs of sale, to be paid firstly in payment to the wife of the sum and secondly in payment of the balance to the husband, provided that on payment of the sum to the wife, she shall discharge the joint loan referred to in order (13)(a)(ii).
If the wife fails or refuses to discharge the joint debt in accordance with order (13)(a)(ii) or, if applicable, order (14), both parties shall do all things and sign all documents necessary to sell the Property C property and to cause the proceeds of sale, after payment of agents commission and costs of sale and after discharge of the joint debt, to be paid to the wife.
Pursuant to s.106A, Family Law Act 1975, if a party fails or refuses to sign a document necessary to give effect to these orders, a Registrar may sign the document of behalf of the party.
The wife shall make available for collection by the husband at the former matrimonial home within 21 days after these orders are made at such time as arranged between the parties’ solicitors, the following items:
(a)Tools, tool boxes, cables, components, dive tank;
(b)Black and white wildlife prints from Africa and Massai spear, warongoo.
(c)Books and reference to scuba diving and marine life, dangerous marine animals;
(d)Underwater camera and flash unit;
(e)Slides and slide projector;
(f)Electric wine cooler food processor/juicer;
(g)Telescope given to husband by his grandfather.
The wife shall provide photos in her possession that are of, or that include, the children or either of them to the husband together with a catalogue of the photos being provided, the husband may have copies made of the photos or any of them, and the husband shall return the photos to the wife within two months of receiving them in the same condition as he received them.
IT IS NOTED that publication of this judgment under the pseudonym Abernethy & Abernethy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3735 of 2007
| MR ABERNETHY |
Applicant
And
| MS ABERNETHY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested parenting and property settlement proceedings under the Family Law Act 1975 (Cth).
The parenting issues relate to the parties’ two children, 14 year old [X] and nine year old [Y]. The applicant husband seeks orders involving different regimes for each child and entailing two alternate arrangements for each child.
The husband’s first alternative for [Y] is that the parents have equal shared parental responsibility, that [Y] live with him during school terms in alternate weeks from after school Friday to before school Wednesday and in each other week from after school Monday to before school Wednesday, for half of school holidays, and on Father's Day and Christmas Day. He proposes that [Y] otherwise live with the wife, including on Mother's Day.
In the alternative, the husband proposes that he have sole parental responsibility for [Y], that [Y] live with him and spend time with the wife during school terms from after school Thursday until before school Monday in each alternate week. Under this alternative he does not propose that [Y] spend any time with the wife during school holidays.
In relation to [X], the husband proposes that, as his first alternative, the parents have equal shared parental responsibility and that the parents and [X] have counselling individually and jointly with a program specifically designed for adolescents and that [X] spend time with him “as recommended by the counsellor and in accordance with the timeframe recommended by the counsellor, such that after a graduated regime” [X] spend time with him during school terms from after school Friday to before school Monday each alternate weekend and “one midweek day” from after school until either 8.30 pm or until before school the following day in accordance with [X]’s wishes. The frequency of this mid week time is not indicated. The husband proposes that during school holidays, Christmas, Easter and other special occasions, [X] spend time with him in accordance with her wishes. In the alternative, the father proposes that the wife have sole parental responsibility for [X] and that she spend time with him from after school Friday to before school Monday, with no indication of the frequency of this time, or whether it is intended to be limited to school term time or continue during school holidays.
The husband proposes no order as to the parent [X] live with in either of his alternative proposals for her, but the inference from both his alternate proposals for her is that [X] will live with the wife.
The wife proposes that the parents have equal shared parental responsibility for both children and that both children live with her. The wife proposes that [X] spend time with the father as she may agree with the father, and that [Y] spend time with the father on alternate weekends during school terms, overnight each alternate Tuesday, and for half of school holidays, with specific provisions for Christmas time and Mother's and Father's Days.
In relation to property settlement, the husband proposed that the wife receive 60% of the parties’ assets, to be achieved by the husband transferring his interest in the former matrimonial home at Property C to the wife and paying her $157,000, and the wife transferring her interest in a jointly owned home at Property M to him. The wife ultimately sought a 70% share of the parties’ assets and resources, to be effected by the husband transferring to her his interest in the former matrimonial home and paying her $220,000, with the wife transferring to the husband her interest in the jointly owned Property M property.
Background
The husband was born in 1965, and is now 43. The wife was born in 1964 and is 44. The parties married in 1989 and separated under the one roof in May or June 2005. The husband left the former matrimonial home and moved into the Property M property on 4 December 2005.
[X] was born in 1994 and [Y] was born in 1999.
The husband commenced these proceedings on 29 June 2007. On
6 August 2007, consent interim parenting orders were made providing that the parents have equal shared parental responsibility for the children, that the children live with the husband during school term on alternate weekends from after school Friday until before school Monday and each alternate Tuesday from after school until before school Wednesday, and for half of all school holidays subject to specific provisions for Christmas, Easter, Father's Day and Mother's Day, and that otherwise the children live with the wife. The interim orders provided that the husband was to continue to take [Y] to his mid week soccer training, and that neither party was to commit the children to an activity that would interfere with the other party’s time with the children.
It is unfortunate that the hearing has taken so long to conclude. The matter was listed for a two day hearing in May 2008. During that hearing, it was sought to call four further witnesses who were not on affidavit. These witnesses were necessary on the issues that were to be ventilated. The time available proved insufficient to conclude the hearing on oral evidence from these witnesses. The hearing was adjourned for two further days in December 2008, by which time the views of the children had assumed a significance they did not have in May, necessitating a Family Report. In any event, the cross-examination of the lay witnesses did not finish in the further two hearing days allocated to the matter. Hence, the matter had to be further adjourned to a day in March 2009, when the hearing concluded.
The evidence
At marriage, the husband said the parties had “almost $60,000” in a joint bank account to which the parties had equally contributed from their respective incomes in the years before marriage. In addition, he said he deposited an inheritance of $7,680 that he received in about April 1989 into this account.
The wife said that she worked part time from the age of 15, and continued to work a second job after commencing work as a [omitted]. She said that at marriage she had saved $30,000 that she used to pay for the parties’ wedding and honeymoon, and to establish a household after the marriage. She said she did not know what the husband did with his inheritance. The wife also owned a property as joint tenant with her brother that her parents had gifted to her and her brother.
The resolution of the factual issue about the parties’ savings at marriage is interlinked with issues about the acquisition of the parties’ first home, to which I will come shortly.
From marriage, the parties lived in a home at [S] owned by the wife's parents. The wife and her parents said the parties lived there rent free. This evidence was not contradicted by the husband and I accept it
In about May 1990, the parties bought the [S] property from the wife's parents for $150,000. There is a dispute about the financial arrangements for this purchase.
The husband said the parties paid the wife's parents a deposit of around $60,000 from the savings they had at marriage, and agreed to repay the balance of the purchase price, $90,000, at $1000 per month. The wife and her parents denied any deposit was paid, and the whole of the purchase price was to be paid at $1000 per month.
The husband said the parties were “dating” seriously with an intention to eventually marry before leaving school. He left school on completing Year 10 and commenced an apprenticeship with a State Government agency and has been in full time employment ever since. The wife continued at school, but was doing casual work. After completing high school, the wife undertook tertiary education, eventually commencing work as a [omitted], which occupation she continues to pursue.
The husband said the parties established a joint bank account with the National Australia Bank and each deposited $100 per fortnight to save for their future together. In cross-examination he said they did this about a year after he left school. He said the contributions to the joint account increased as their earnings increased. The only evidence the husband gave as to how the parties’ contributions to the joint account increased was that at marriage they each were depositing “around $300 to $350 a fortnight” into the joint account.
In cross-examination, the husband said initially he earned about $100 or $150 per week and the wife $50 per week when they were each banking $100 per fortnight,
The husband said that he could recall the amount of savings at marriage because the parties approached the bank for a loan and were told they could only borrow two thirds of their savings, and the amount they could borrow when combined with their savings came to $98,000.
The husband swore an affidavit on 29 July 2007 in which he deposed that the parties had no savings at marriage. He said that affidavit was incorrect. He said when he read the wife's affidavit asserting she had $30,000 at marriage it “triggered my memory”. He said he had also forgotten the parties paid the wife's parents $60,000 towards the purchase price of the [S] property. Yet in this affidavit he mentioned the inheritance he received shortly before marriage. It seems incredible that the husband would remember the inheritance, which was $7680, but forget joint savings of $60,000.
The wife and her parents were adamant that there was no deposit paid on the purchase of the [S] property. They were not shaken on this in cross-examination. However, there was an inconsistency in the evidence of the wife and her mother about repayments of the loan. The wife said her mother made a record of the repayments she made in a book she kept, but could not now find the book. The wife said her evidence that there was $70,000 repaid on the loan was based on calculations she and her mother made each year and at the end of the repayments. The wife's mother, however, said she sometimes noted on a piece of paper a repayment the wife made, but denied there was any special book in which she recorded repayments.
It is clear none of the witnesses on the issue of the total repayments the parties made to the wife's parents has any knowledge of the actual amount repaid. They were clearly estimating and surmising in their evidence. The wife's suggestion of a documentary source for her evidence was, I am satisfied, a fabrication by her to bolster her case.
The wife, when cross-examined about her evidence that she used $30,000 in savings she had at marriage to pay for the wedding and honeymoon, denied she said she paid for the wedding. Her affidavit evidence unambiguously said she did. She said she paid for the bridesmaids’ dresses and shoes, but not for the wedding and the reception. She conceded that the husband had some savings at marriage, being more than his inheritance. She said that she did not meet the whole of the costs of the honeymoon, again contradicting her evidence in chief.
There are thus reasons to treat both parties’ evidence as to the savings at marriage and the amount paid to the wife's parents with caution. However, despite difficulties with the husband's evidence in relation to the joint savings at marriage and in other respects, I am not satisfied his credit generally was destroyed. Similarly with the wife, despite her fabrication of evidence in relation to the loan repayments to her parents, and other respects of her evidence being less than credit worthy, I am not satisfied her credit generally was destroyed. The wife's parents were not successfully challenged in cross-examination and I accept their evidence.
As to whether the parties had joint savings of around $60,000 at marriage as the husband suggests, and whether this sum was paid to the wife's parents as a deposit on the [S] property, I incline to the evidence of the wife, corroborated by her parents, that there was no deposit of $60,000, or any other sum, paid to the wife's parents for [S]. That renders unlikely the husband’s evidence that there was around $60,000 in joint savings at marriage, as there is no evidence otherwise as to what may have become of such a significant sum, and I am not satisfied there were joint savings of around $60,000 at marriage.
In relation to the wife's evidence of having $30,000 in savings at marriage which she used to pay for the wedding and honeymoon, the husband said the parties’ families shared the “main costs” associated with the wedding based on the number of guests attending. The husband said he paid for the photography and the cars, and for the airfares and other expenses associated with the honeymoon to Singapore. He was not successfully challenged on this evidence.
Because of the inconsistencies in the wife's evidence about what she used the suggested $30,000 savings for, I am not satisfied she spent $30,000. I find that each of the parties’ families met some of the costs of the wedding and that both parties met some costs of the wedding and honeymoon from pre marriage savings. The evidence does not enable me to quantify the amount each party may have spent. The evidence does not satisfy me that either party had savings of significance beyond what they contributed to the wedding and honeymoon. I am therefore unable to quantify the savings of either party at marriage, apart from the husband's inheritance which the wife conceded formed part of his savings at marriage.
I am therefore not satisfied that the wife had $30,000 in savings at marriage.
The parties repaid the wife's parents at $1000 per month until in 1996, with the wife's parents’ encouragement, they decided to move. At this time, it was common ground that the parties had not fully repaid the wife's parents for the outstanding purchase price for the [S] property. It was common ground as the wife's case was presented that the balance of the loan then outstanding to the wife's parents was forgiven.
The husband contended in evidence in chief that $80,000 was repaid to his parents in law by instalments although in cross-examination he conceded that the amount may be about $70,000. The wife and her parents contended that $70,000 was repaid. As mentioned, none of the parties had any direct knowledge now of the total repaid, and all were making estimates.
The parties bought the [S] property in about May 1990. The husband said it was a few months after [X] turned one that the wife's parents said the parties need not repay any more of the loan. That means repayments continued over a period of a little under six years. In those circumstances, I am satisfied $70,000 is a reasonable and fair estimate of the amount the parties repaid to the wife's parents, leaving about $80,000 of the debt outstanding, which the wife's parents forgave.
Thus, the wife's parents made a contribution on behalf of the wife to the parties’ acquisition of the [S] property of an interest free loan of the whole of the purchase price, and a gift of $80,000.
In 1996, the parties bought land at Property C on which the present matrimonial home was then erected. The husband said the land cost $164,000 and the construction of the home cost $220,000 (although the builder’s tender annexed to his affidavit is for a price of $193,000 which included client variations of $27,000), a total of $384,000. The wife said the total cost of the house and land was $357,000, which is consistent with the land costing $164,000 and the home costing the amount of the builder’s tender.
About three months before occupying the new home, the parties sold the [S] property netting about $148,000 or $149,000, which was contributed to the cost of the new home. The wife's parents provided $80,000 to the parties for this transaction and the parties obtained a mortgage loan of about $140,000 or $160,000 to complete the transaction. The husband said in evidence in chief that the $80,000 provided by the wife's parents was a gift, but said in cross-examination that it was a loan which was later forgiven. The wife's case was argued on the basis that the $80,000 should now be treated as a gift, no repayments ever having been made and no demand for repayment ever having been made. I accept that this is the correct characterisation of these moneys now, despite the wife's father's evidence that these moneys, together with the balance of the loan for the acquisition of the [S] property, a total of $160,000, are loans that remain outstanding and repayable.
For the three months between selling [S] and occupying the new Property C home, the parties lived rent free in the wife's parents’ home at [H]. The husband said he renovated part of his parents in law’s home, doing the following:
a)“renovated the whole of the living area”;
b)painted the interior; and
c)tiled the hallways, kitchen and dining areas.
The husband also said he maintained the lawns and gardens. The husband's evidence about the work he did on the wife's parents’ home was not challenged and I accept it.
The husband also said the parties saved on construction costs of the Property C home as a result of him doing the following:
a)Carried out unspecified electrical work;
b)Installed telephone lines;
c)Installed a security system;
d)Installed filtered water for the refrigerator;
e)Installed storage cabinets and work benches in the laundry and garage;
f)Built and installed side gates;
g)Tiled the bathroom;
h)Painted the pergola; and
i)Laboured for the bricklayer when rear stairs were constructed.
The husband said he did the following further work on the Property C property after the parties occupied it:
a)Established lawns and gardens, planting palms and other shrubs and plants;
b)Installed a retaining wall at the front and side of the property;
c)Installed an automated sprinkler system;
d)Built a timber cubby house for the children;
e)Installed a water feature; and
f)Installed lighting and an outdoor sound system.
The wife said the husband installed a water filter and helped her father paint a pergola. She said that otherwise the parties employed tradesmen to attend to the “finishing off” of the property including laying turf. In cross-examination the wife said she did not know whether the husband performed the specific work he said he did, but conceded the husband did physical work on the property.
The parties were not otherwise tested about the work the husband did on the Property C property. Although the wife called her father as a witness, he gave no evidence of painting the pergola, or of the husband assisting him. I accept the husband's evidence of the work he said he did because of the detail he gave of the work, the wife's inability to state what work the husband did having conceded he physically worked on the property, and the failure of her father to corroborate her evidence of the husband assisting him paint the pergola.
A few months after the parties moved into the Property C property, the wife received $102,500 being her share of the proceeds of sale of the property owned jointly by her with her brother at marriage. The wife deposited these moneys into the mortgage account in reduction of the parties’ debt. The wife incorrectly asserted in her evidence in chief that these funds “paid off our mortgage”. The mortgage loan was repaid within about 2 years, in large measure because of the payment of these funds into the loan account.
Both parties were in employment throughout the marriage. The wife took maternity leave for periods around the births of both children, three months being on full pay. She undertook some casual [work omitted] in the later part of her maternity leave on each occasion. The maternal grandparents provided child care for the children until they commenced pre-school at the school at which the wife was employed as a [omitted].
The husband said that during cohabitation, he was heavily involved in child care and sharing the household chores although he conceded that at least when the children were young the wife was their primary carer. The husband was heavily involved in arranging and facilitating the children's recreational and sporting activities. He also shared the household chores with the wife and maintained the lawns and gardens and serviced the parties’ motor vehicles during cohabitation.
Both parties contributed their earnings throughout their cohabitation.
When the marriage broke down in mid 2005, the parties agreed to jointly purchase a property near the former matrimonial home for the husband to move to. The parties jointly purchased the Property M property for $403,000 or $410,000 in September 2005 using funds borrowed on the security of the former matrimonial home.
The husband performed the following work on the Property M property, most of it before occupying the property:
a)Removed carpets;
b)Replaced gyprock
c)Stripped wallpaper;
d)Installed downlights;
e)Assisted with polishing floorboards;
f)Installed air conditioning;
g)Installed a new kitchen; and
h)Painted the interior, excluding the doors.
The wife painted the doors at the Property M property
The husband said the painting and carpet was paid for with funds drawn from the mortgage advance and not from the joint credit union account as the wife contended. The wife said the funds for this work were taken from an account with the teacher’s credit union.
The funds borrowed to assist with the purchase of the Property M property exceeded the purchase price. There remains an issue as to the use the husband made of $30,000 of the excess funds. The husband said he used these moneys to fund the renovations he made to the Property M property before occupying it, and to meet the costs of establishing a household for himself and the children when they spent time with him, including the purchase of bedding, linen and kitchen utensils. He said he left the matrimonial home with only a leather lounge and a TV. The wife said she did not know what the husband used the $30,000 for.
In cross-examination the wife said she did not know whether the cost of the work on the Property M property was met from the surplus mortgage loan funds, but also refused to agree that the whole cost was met from the surplus borrowed moneys, saying some of the cost was paid from a joint account. She also said that the husband bought a refrigerator, washer and dryer with funds from one of the parties’ joint accounts.
The husband's contentions that he used the surplus borrowed funds raised at the time of the purchase of the Property M property for renovations to the property and to buy furniture and appliances for the home cannot be reconciled with the bank records for the account into which the surplus funds were deposited. Some of the surplus funds were repaid to the mortgage account, but there remains a sum of about $30,000 the expenditure of which the husband cannot fully explain. However, while not coinciding with equivalent transactions on the account in which the surplus borrowed funds were held, it is clear the husband did expend funds on both renovations to the property and purchasing items to furnish the home. The home is being brought to account in the pool of divisible assets at its current, renovated value, and the contents of the home are being brought to account at their current value as an asset of the husband. It is therefore appropriate that some allowance for these items be made against the surplus borrowed funds.
The husband produced receipts that he said were for work done on the Property M home and items purchased for the Property M home that were paid for from the surplus borrowed funds. The receipts totally a little less than $15,000. Among those receipts were some hardware store receipts for small amounts for purchases in 2007 and 2008. Clearly, not all of these could have been paid for from the surplus borrowed funds, which were exhausted by mid 2007. In any event, the work the husband said was paid for from the surplus borrowed funds was completed by 2006. However, these receipts were for small sums, and do not significantly effect the total of the receipts.
Apart from general hardware items, the receipts relate to items such as supply and installation of built-in wardrobes; the purchase of a slide out hood, security equipment, plumbing, electrical and lighting supplies, beds and bedroom furniture, an air conditioning unit, vacuum cleaner, and blinds; floor sanding; and a rubbish removal bin.
As I understand the husband's evidence, these receipts do not cover all the expenditure on the Property M home he said was met from the surplus borrowed funds, but he did not give details of any other such expenditure.
The wife said that at about the time of the purchase of the Property M property, the husband received $16,762.23 from an insurance policy for the children’s education that he surrendered. She said she did not know what the husband did with these funds. In cross-examination the husband agreed he received these funds and put them in a trust account for the children. He disclosed this trust account in his financial statement. The wife sought an order that half of these funds be transferred to her to be held in trust for the children. In cross-examination the husband indicated he would agree to the existing account being changed to a joint account in the names of both parties in trust for the children, both parties to sign for any withdrawals, but opposed the order the wife sought on the basis he believed halving the account would result in a lower rate of interest being earned on the money.
The husband met the whole of the repayments for the loan to purchase the Property M property until June 2007, paying $1450 per fortnight. The wife obtained a child support assessment against the husband in May 2007 at the rate of $1800 per month. After June 2007, the husband said he paid half of the mortgage repayments. The wife denied this. The evidence indicates that the husband made regular fortnightly deposits into the account from which the mortgage payments were made sufficient to cover the fortnightly mortgage payment until June 2007. There are no bank records in evidence to show that the husband made mortgage payments thereafter, and without those records I am not prepared to accept the husband's evidence he made any payments thereafter. The wife commenced making interest only repayments on the mortgage in late 2007.
In late 2005, the wife withdrew $13,000 from a joint credit union account leaving $10,000 in the account for the husband.
The husband said that from separation in mid 2005 until April 2006, the children spent every weekend with him from after school Friday until before school Monday morning during school terms, and he took the children on holidays at Christmas 2005 and Easter 2006. He continued to attend [Y]’s soccer games, and when [X] commenced playing netball in 2006, he attended her games when able to do so, subject to clashes with [Y]’s soccer games. The wife contended that the husband saw the children on alternate weekends, not every weekend. It is unnecessary for me to resolve this factual issue to determine the appropriate orders in this case.
After the Term 1, 2006 school holidays, the husband spent time with the children on alternate weekends and for half school holidays. Over the ensuing 12 months the parties negotiated the parenting arrangements for the children, although the husband said he was less than satisfied with several aspects of those arrangements, suggesting the wife was dictating the arrangements to him. He nonetheless acquiesced in those arrangements.
In about March 2007, the husband said he had the children for a week at the wife’s request, but thereafter problems arose in negotiating arrangements for the children with the wife. These difficulties coincided with the husband commencing a relationship with Ms G around March or April 2007.
Before the parties separated, they regularly socialised and went on holidays with a group of families that including the G family. Ms G was a close friend of the wife’s before she and the husband commenced their relationship. Ms G separated from her husband in mid 2006. She has two sons aged 11 and eight. She is a second cousin of the husband's. The wife believes it is most inappropriate for the husband to be in a relationship with his second cousin. [X] has now adopted a similar view, although for some time [X] happily continued to spend time with the husband and Ms G after they commenced their relationship. The reasons for the wife's view of the inappropriateness of a relationship between second cousins are not apparent. Under Australian law, there is no bar to second cousins marrying (s.23B(1)(b) and (2), Marriage Act 1961 (Cth)).
Ms G, together with other female members of the group of families that socialised and holidayed together, appears to have taken the view that the wife was at fault for the parties’ marriage breakdown, and that the wife had been unfaithful to the husband well before the parties separated, pursuing a relationship with Mr S, with whom she presently has a relationship. The wife believes the husband was at fault for the marriage breakdown and was unfaithful to her with Ms G, her former close friend.
Needless to say, the formerly close friendship between the wife and
Ms G has been replaced with a high degree of mutual animosity. Ms G was a party to an incident when the wife was abused in a drunken late night phone call by another female member of the group of families that socialised together. The wife and Ms G have engaged in petty puerile behaviour which I am sure neither would find acceptable from their children. The wife chose to deliver mail for the husband addressed to the former matrimonial home after the husband had moved to Property M to Ms G’s letter box. Ms G returned it to the wife, adding offensive remarks to the wife on the outside of the envelope. The wife then delivered it back to Ms G’s letter box adding her own offensive remarks, Ms G again returned it with more comments, and so on. Before this game of mail ping pong had finished, the envelope was completely covered on both sides in mutually offensive comments.
It is a sad reflection of the immaturity and pettiness of both women that the obvious, adult step of the wife redirecting the mail to the husband's address or Ms G giving it to the husband who she was seeing regularly never occurred to either woman, or if it did, spite prevailed over maturity and common sense. I also note that the wife had no qualms in delivering the mail item each time personally to Ms G’s letter box despite taking the position at the commencement of the hearing that she needed to move out of the district because of harassment by Ms G and other female members of the group of families that socialised together, of whom she professed to be in fear. It seems her animosity for Ms G overcame her fear of her.
Nor are the husband and Ms G well disposed to the wife or her male companion, Mr S, who the husband believes is usurping his role as [Y]’s father. The husband and Ms G believe the wife was unfaithful to the husband with Mr S for some time before the parties separated.
Ms G believes the wife damaged her car and poisoned her front lawn, a belief that she said would not be shaken even if the wife denied it on oath, saying that if the wife did deny it on oath, she would be a perjurer.
I am satisfied both children have been exposed to the attitudes of each parent towards the other.
On the husband commencing his relationship with Ms G, verbal communication between the parents ceased, and the parents began to openly use (or more correctly, abuse) the children in their conflict. The wife dictated to the husband when he could see the children, for example refusing to agree to the children spending any time with the husband over the Easter period in 2008. The husband retained the children on the Mother's Day weekend in 2008 without offering the children any time with their mother. The wife failed to make [Y] available for his soccer training and soccer games for three weeks in May 2007, the husband being the coach of [Y]’s team. The wife took the children out of school early on Friday to prevent the husband collecting them on one of his alternate weekends without any forewarning. The wife also unilaterally cancelled the children's time with the husband on a subsequent weekend.
As mentioned, the husband commenced these proceedings in June 2007 and interim parenting orders were made on 6 August 2007. Despite the provision in those orders that neither party unilaterally commit either child to an activity that interferes with the other party’s time with the children, the wife unilaterally changed [Y]’s swimming afternoon to Tuesday, when [Y] was to be with the husband. The wife sought to justify her breach of the orders to the husband by explaining that swimming clashed with [Y]’s T-Ball on Wednesday. The wife also unilaterally committed the children to attend a religious celebration during the husband's time and had [X] tell him he had to take the children to it.
The husband also contravened the interim orders, taking [Y] on an interstate holiday without giving the wife the prior notice required under the interim orders and committing him to soccer in 2008 without the wife's prior agreement.
At the beginning of the 2008 soccer season, the husband discussed with [Y] his winter sport preference and unilaterally arranged for him to attend a grading session. He was unaware there was to be a second grading session [Y] was to attend. When he sought through solicitors to have the wife take [Y] to the second grading session, the wife declined as it clashed with [Y]’s Tae Kwon Do lesson.
[Y]’s soccer training nights in 2008 were Tuesday and Thursday. The interim orders provide for the husband to take [Y] to soccer training on Thursday “or whatever time training is scheduled”. The husband was critical in his evidence in chief of the wife's failure to abide by this order. He said the wife refused to make [Y] available to be taken to soccer training by him on Thursday evenings, and failed to have [Y] available for collection at the former matrimonial home on the first Tuesday training evening, instead leaving the children with the maternal grandparents and going out socially without advising the husband. She failed to make [Y] available for collection by the husband on other occasions when she did not take him to training. On one occasion, although the husband was in attendance at the wife's home to take [Y] to soccer training, the husband said that she and Mr S left her home with [Y] and took him to training. Otherwise, on Thursday evenings and on alternate Tuesday evenings when [Y] was not to be with the husband, the husband said that [Y] would not be at the wife's home when he attended to collect him for soccer training, the wife already having left and taken him there herself, or having arranged for Mr S to do so.
In cross-examination the husband agreed that [Y] participated in Tae Kwon Do on Thursday evening immediately after soccer. He agreed to his participation in this sport on the same evening as soccer training. The husband agreed that as it was convenient for the wife to take [Y] to Tae Kwon Do, it was preferable for the wife to take [Y] to soccer training on Thursday evenings. This was the first time the husband had made such a concession. If the reality of the situation that the husband acknowledged in cross-examination had been acknowledged much earlier, [Y] could have been spared exposure to much dissension and hostility between the parents, exposure that seems to have very much spoilt his enjoyment of this sport. And of course the husband’s criticism of the wife for not abiding by the orders about the husband taking [Y] to his soccer training conveniently ignores his own failure to abide by the orders himself, in committing [Y] to soccer in 2008 without the wife's concurrence.
The husband conceded twice in 2008 sending the mother an SMS message that [Y]’s soccer training had been cancelled when it had not been. On one occasion, he did so because [Y] had a cold and he thought it inappropriate for [Y] to be out at night. Why he could not have conveyed that view to the wife, rather than dishonestly advising the wife the boy’s training had been cancelled, remained unexplained, other than by the parents’ total inability to communicate and negotiate appropriate arrangements for the children.
For her part, the wife denied in cross-examination refusing to permit the husband to take [Y] to soccer training on any occasion. However, she then conceded she told the husband in an SMS message she sent on 26 February 2008 that she would take [Y] to training when he was with her “or he won’t be there”. She also said in this SMS “So bad luck about your court orders!” She sought to defend her actions by saying [Y] wanted her to take him to training, and that was the most important thing to her despite the court orders.
The wife’s attitude was as hypocritical as the husband's. On the one hand she could not understand why the husband was upset about her failing to abide by the court orders about soccer training, in fact showing an openly defiant, contemptuous attitude to court orders, while on the other she was most upset about the husband not allowing [Y] to spend time with her on his ninth birthday when under the orders the child was to be with the husband for the whole day.
These incidents illustrate the limitations inherent is seeking to have parents behave responsibly and to place their children’s needs first through court orders when neither parent is prepared to place their child’s needs ahead of their own. They illustrate the difficulties with these parents of promoting the children's best interests through court orders when both parties show no inclination to comply with court orders when it does not suit them.
Problems subsequently arose in the relationship between the husband and [X]. Although as at March 2008 the wife had her solicitors advise the husband’s solicitors that [X]’s strong view was that the interim orders should continue as final orders, by mid 2008 she refused to spend time with the husband, and has not spoken to him since early December 2008. It appears she would not talk directly to him during the Family Report interviews, although she did enter the room with him for a short joint interview with the Family Consultant. Her firm attitude that she had nothing to say to the husband did not change at the Family Report interview.
According to the husband’s evidence, [X] became difficult to contact on the mobile phone he provided to her and for which he paid. He said he complained to her about this. He said nothing in his evidence in chief of ceasing to pay for the phone, which appears to be what [X] reported to the Family Consultant. [X] objected to the husband involving solicitors about [Y]’s attendance at the second soccer grading session. She expressed a negative view about his new relationship with Ms G, and the husband responded suggesting [X] was simply repeating the wife's views, something he agreed he should not have done. She hung up on the husband on one occasion in mid 2008, and when the husband rang her back he said to her that if she was going to be disrespectful to him, perhaps it would be better if she did not come with the father and [Y] on a planned holiday. The husband then somewhat disingenuously suggested he had left it up to [X] whether she wished to come with them on the holiday but heard nothing further from her.
The wife’s evidence is that she heard a voicemail message the husband left for [X] in about June 2008, after [X] came home from a weekend with the husband and said she had argued with him, in which the husband called [X] “a horrible person”, and said he did not want her for the holidays and would only take [Y]. I accept the wife's evidence about what the husband said [X] on this occasion.
The clear impression gained from the husband's evidence is that as [X] evinced attitudes consistent with the wife's, the husband became increasingly displeased and some of his animosity for the wife appears to have come into his attitude towards and treatment of [X]. The husband in his evidence gave the clear impression that he believes that the reason for the breakdown in his relationship with [X] is that the wife turned her against him. He seems totally unprepared to accept any responsibility for the breakdown in his relationship with his daughter.
The husband's position about appropriate parenting orders for [X] seemed ambivalent at best, or inconsistent at worst. He conceded in cross-examination that [X] should spend time with him in accordance with her wishes, but professed not to know what her wishes were, despite [X] refusing to spend time with him or even talk to him. The orders ultimately pressed on behalf of the husband do not provide for [X] to spend time with him in accordance with her wishes. Rather, his first alternative is that after counselling and an introductory regime to be determined by the counsellor, [X] will spend time with him on alternate weekends regardless of her views.
[Y] continues to spend time with his father in accordance with the interim orders. He is subject to considerable psychological pressure and manipulation by both parents. The husband said that in the Term 3 school holidays in 2008 he suggested that he and [Y] go on a camping holiday, leaving the next day. This is an activity that [Y] enjoys, and an activity that [Y] knows his father enjoys. The time away would include [Y]’s birthday. After having proposed the holiday and having [Y] agree to it, the husband said he then “reminded” the boy he would be away on his birthday saying “You’ll be away for your birthday. You won’t see your mother that day. Does that matter?” The boy replied in the negative.
While travelling away for the holiday, the wife rang and spoke to [Y] about seeing him on his birthday. Each parent gave a very different version of this call. The husband said that during the call the wife suggested to the boy that he must not love his mother if he did not want to be with her on his birthday. The wife said that the husband interrupted her conversation with [Y] and was “shouting” in the background telling [Y] to tell her he did not want to go home.
The husband related his version of this incident as an example of the wife’s inappropriate focus on what she wanted rather than what [Y] wanted. He appeared to be oblivious to his own actions placing the child at the centre of the parental conflict. It is for the parents to take responsibility for the sort of arrangements that the husband foisted onto [Y]. If the husband wished to take [Y] away for his birthday and wished to make arrangements for the boy to celebrate his birthday with his mother, it was the wife he should have discussed the issue with, rather than having the boy agree to an activity the husband greatly enjoyed to the boy’s knowledge and only then raising with the boy the issue of celebrating his birthday with his mother. He did not acknowledge that he was placing [Y] in the invidious position of having to choose between his parents, and maintained that this was a decision that was age-appropriate for [Y], who was turning nine.
The wife too made unilateral arrangements with [Y] for his birthday, arranging to have a special dinner with him on a day [Y] was due to be with his father under the interim orders. The wife said she assumed the orders provided for [Y] to spend three hours with her on his birthday. They contained no such provision. While the wife acknowledged that [Y] had been left in an invidious position, she was not prepared to accept any responsibility for this. She agreed that change is necessary in the current situation between the parents, but when asked who needed to change first, answered “I don’t know”. She agreed that the children are involved in the parental dispute but said she had no idea how that might be changed. Despite agreeing there was an element of “tit for tat” between the parents, she said the problem is the husband, not her. While she said she accepted she was not totally blameless, she maintained that the primary problem was the husband's behaviour.
The parents’ behaviour in relation to [Y]’s ninth birthday illustrates the way both parents will only see the fault in the other parent, and not entertain the possibility they themselves are causing, or even contributing to, the parenting problems that are harming their children.
In cross-examination the husband at first claimed that [Y] was not aware about the parental conflict about his soccer. When pressed, he conceded that not only was [Y] aware of the parental conflict over his soccer, he was distressed by it.
Despite it being common ground that the parents do not communicate verbally and have not done so for about three years, the husband suggested in cross-examination that they would be able to do so in the future through help and assistance. What help and assistance he meant was not elaborated. He said that the parents had previously been able to communicate about the children and stated that with the interim orders in place the parenting arrangements had been working well except for a few problems. These “few problems” occupied many pages of affidavit evidence from the husband in his case in chief, and for the husband to suggest there were only a few problems and to try to minimise them in the context of cross-examination about the practicalities of his parenting proposals was quite disingenuous. He ultimately conceded that while the parents should be able to negotiate the inevitable changes and adjustments to parenting arrangements, he did not think they would be able to do so. The wife said she did not believe the parents would be able to cooperate in the future on any matters about the children's welfare.
The husband also said in cross-examination that he did not think the parents would be able to reach agreement about what sport [Y] should participate in. He said the child should attend activities each parent involves the child in when with that parent. He conceded that this may well lead to [Y] being involved only in part of any activity and that this would not be in the child’s best interests.
The husband said the parents communicated by SMS, email and through the children. He agreed it was inappropriate for the parents to communicate through the children, and that this merely involved the children in the parental conflict. This realisation has not stopped the husband communicating with the wife through both children.
Despite the conceded lack of effective communication between the parents and the ill feeling between them, and the ill feeling each has for the person the other is currently in a relationship with, the husband nonetheless asserted in cross-examination that he believed a shared care arrangement could work.
Both parties are in employment, the wife working four days a week, the husband working full time.
As mentioned, the husband is in a relationship with Ms G, who is training as a [omitted]. They do not cohabit and I am not satisfied they are likely to in the foreseeable future.
The wife is in a relationship with Mr S, who was a witness in her case. It was submitted on behalf of the husband that I should find that the wife and Mr S are in a de facto relationship. However, while Mr S was a less than impressive witness, and while there were inconsistencies between the wife and Mr S in their descriptions of their relationship, both were adamant they were not cohabiting and had no plans to do so. Having considered the evidence of the husband and Ms G on the one hand, and of the wife and Mr S on the other, I can see no reason to regard the wife and Mr S as in a de facto relationship if the husband and Ms G are not in a de facto relationship. I am therefore not satisfied the wife is in a de facto relationship.
The husband presently earns $1919 gross per week. He said he pays child support of $268.75 per week. This level of child support is based on the number of nights the children should spend with the husband under the interim orders, rather than the number of nights the children are actually spending with him, [X] not having spent overnight time with the husband since mid 2008. This result was achieved after the husband successfully objected to a decision by the Child Support Registrar after a request by the wife to base the calculation of child support on nights actually spent with the husband. The wife appealed the issue to the Social Security Appeals Tribunal. There was no evidence that the SSAT had determined the appeal by the conclusion of the hearing before me.
The wife presently earns $1155 per week working four days per week as a [omitted]. There is no evidence to suggest the wife could not work full time. The wife also receives $70 per week family assistance and she said she receives $246 per week in child support.
There is no objective evidence on which I could resolve the conflict between the parties as to the level of child support payments.
Under both parties’ property settlement proposals, the husband will retain the Property M property. The husband works for a Government agency and has flexible working arrangements. He can commence work as late as 10 am and finish work as early as 3 pm, and under his flexitime arrangements can take one day off every four weeks, provided that overall he works the requisite number of hours for his full time employment. He has accrued annual and long service leave. He is able to take the children to and from school. He lives in a home in the area where the children have always lived and attended school.
The paternal grandparents live in a suburb nearby to the Property M home, as does the husband's sisters. The paternal grandparents are retired and available to assist the husband with child care if necessary.
Under both parties’ property settlement proposals, the wife will retain the former matrimonial home. At the end of the hearing, she was no longer suggesting, as she did at the commencement of the hearing, that it was untenable for her to continue living in the area of the former matrimonial home because of alleged harassment by female members of the group of families that formerly socialised together. Nor was she still contending, as she did at the commencement of the hearing, that she needed to move for financial reasons, although there was no evidence of any improvement in the wife's financial circumstances.
The wife proposed equal shared parental responsibility, but said she did not believe the parents would be able to cooperate on any matters about the children’s welfare in the future. When asked about how she would decide what high school [Y] would attend, she indicated she would make the decision. When I asked the wife how the equal shared parental responsibility order she sought would work, she could not say other than suggesting the parents communicate through solicitors. But the evidence shows that the wife habitually failed to instruct her solicitors to respond to letters from the husband's solicitors about parenting and other issues since the commencement of these proceedings.
The expert’s report
The Family Consultant interviewed the parents, the children and the maternal grandfather, and observed the children with the parents in turn, and with the maternal grandparents, on 20 February 2009.
The Family Consultant recommended that
·the parents have equal shared parental responsibility for both children;
·[Y] spend time with the father on one mid week night each week, on alternate weekends from after school Friday to before school Monday, and for half school holidays;
·[Y] have liberal telephone communication with both his parents;
·no specific orders be made in relation to [X] other than as to parental responsibility, but that the wife actively encourage her to develop a more positive relationship with the husband; and
·the parents attend a post separation parenting course.
The Family Consultant reported that the husband acknowledged that it would be impossible to force [X] to spend time with him but wanted family therapy for himself, the child and the wife to try to resolve the issues that had arisen, so that he could have an ongoing relationship with his daughter.
[X] told the Family Consultant that she did not wish to see her father and had nothing to say to him. While she nonetheless did not refuse to enter the room with her father, her attitude to him did not mellow during the brief interview the Family Consultant had with the husband and [X].
The Family Consultant gained the impression from both the husband and [X] that their argument “stemmed from a minor conflict over a mobile phone credit and [X]’s activity schedule for a weekend”, and escalated from there. There was in the expert’s opinion no indication of any significant difficulties in the father/daughter relationship before 2008.
In the Family Consultant’s opinion, [X] is much more aligned with her mother and her mother's family than with her father. [X] also expressed some negative opinions about Ms G to the Family Consultant, believing that the husband had an affair with Ms G before her parents’ marriage ended, and believing this is made worse by “the fact that they are cousins”.
Both these opinions mirror the wife's opinions, and, I am satisfied, more than likely originate from the wife’s exposure of [X] to her negative views about the husband. It is telling in my view that [X]’s negative opinion of the husband and Ms G’s relationship did not become apparent for over 12 months after that relationship commenced, and that for over 12 months after it commenced [X] happily continued to spend time with the husband and Ms G. This is not to set at nought the views of a 14 year old. She now holds these views too. Their expression seems to have coincided with what started as a relatively minor dispute between [X] and her father, during which the husband treated [X] inappropriately, providing the opportunity, and in my view considerable impetus, for [X] to “side” with her mother.
In relation to the rift between [X] and her father, the Family Consultant opined that “these conflicts are very common between adolescents and their parents, and do not cause lasting rifts in families (where) parents can respond in a united way to the young person’s behaviour. However, in situations of conflict the adolescent’s behaviour can easily play into the larger conflicts which exist within the family and not be resolved. In my opinion this has happened here.” I have come to the same conclusion.
In cross-examination the Family Consultant said that while she had no problem with the court ordering the parents and [X] to attend family therapy, there was no guarantee it would be successful. She said that while it may assist in a reconciliation between [X] and her father, if [X] chose to “dig her heels in”, a relationship with the husband could not be forced on her against her will. She said she could not recall whether she raised the option of attending family therapy with [X]. She believed some discretion would need to be left to the therapist, if in his or her judgment the intervention was not beneficial, not to unduly prolong it. Despite this, the husband sought an order for family therapy with a regime of spending time as determined by the therapist leading ultimately to [X] spending specified time with him regardless of her wishes. The husband's proposal therefore does not leave the therapist any discretion to discontinue the family therapy if it is not proving beneficial.
I agree with the Family Consultant’s opinion that at [X]’s age, she cannot be forced to reconcile her relationship with her father or to attend family therapy against her will. On the other hand, if [X] indicated a wish or willingness to have family therapy, the parents should promptly arrange it, there being a variety of suitable services available.
However, I am also strongly of the view that-
·the parents have a responsibility to lead by example and to model appropriate behaviour in dealing with conflict in interpersonal relationships and they are doing their children a grave disservice by not doing so;
·it is quite unreasonable to expect the children to behave in a more mature and adult way than either parent is acting; and
·unless and until both parents change their attitudes and dealings with each other as parents, there is little point in pressuring [X] to participate in family therapy.
The Family Consultant was of the opinion that [Y] has a good relationship with both parents and Ms G, and that he gets on well with Ms G’s children. The Family Consultant was of the opinion that while [Y] loves both his parents and enjoys spending time with each of them, he appears more closely attached to his mother than his father.
The expert reported [Y] saying he would like things to stay as they are because although he likes seeing his father, he also misses his mother and sister when he is away from them for any length of time. There is no indication that the Family Consultant tested this view of [Y]’s in light of the block school holiday time he had been spending with the father with nothing to suggest he was missing his mother and sister during these periods.
The Family Consultant indicated that “when ([Y]) was talking about his choice of after school activities in the winter season (she) formed the impression that he was aware that certain activities were aligned with each parent”. It appears this realisation inhibited [Y] freely expressing his sporting preference.
The Family Consultant commented that neither parent expressed any concerns about either child’s academic progress or behaviour, that the parents had been able to reach agreement over what high school [X] should attend, and that the Family Consultant’s assessment “did not highlight any concerns about the children’s behaviour or development”.
[X] is in Year 9 now. Thus, the decision about which high school the girl should attend must have been taken before 2007, that is before the parents’ relationship (as distinct from the parties’ relationship as spouses) broke down. Thus, the comment by the Family Consultant about the parents being able to agree on which high school [X] was to attend is not a reflection of current circumstances, and cannot form the foundation for assessing the parents’ ability now and in the foreseeable future to cooperatively parent their children. In any event, the wife's unchallenged evidence was that she alone made the decision about which high school [X] would attend.
The evidence of both parents was that they do not believe they will be able to communicate and reach agreement about any parenting issues in the future, and the Family Consultant said in cross-examination that the parents cannot cooperate over anything. When I asked her if there was anything she wished to add at the end of her cross-examination, the Family Consultant said that the parental conflict is compromising the children's best interests.
The import of the comment that the assessment did not highlight any concerns for the children's behaviour or development is unclear where one child is alienated from the husband, and the other is reluctant to freely express his sport preference because of fear of appearing to prefer one parent over the other. As already mentioned, these matters clearly indicate the children are exposed to the parental conflict in ways that already have had adverse effects on the children’s emotional, and one would expect psychological, wellbeing, and which are impacting adversely on the children’s development by impeding the children having normal relationships with both parents.
I am concerned that these matters do not appear to have been fully addressed or acknowledged in the Family Report.
The Family Consultant said that “the level of conflict between (the parents) is clearly not in (the children’s) best interests”. She also said:
“34. As recent research indicated (McIntosh and Chisholm Vol 20 no1 Australian Family Lawyer) the capacity for the parents for ‘passive cooperation’ and the containment of acrimony are extremely important in enabling children to develop meaningful relationships with both their parents. (The parents) are still working to achieve these goals after nearly three years of separation.”
There is no evidence that the parents are in fact working to achieve the goal of less conflictual parenting. The parents have not been prepared to act on my exhortations during the hearing that they do so. While each has said they will attend any program I may order, neither parent has given any indication they accept any responsibility for the current situation or believe they have any ability to change the current situation. Both believe the other solely responsible for current problems and believe the other alone able to change the current situation.
I am satisfied neither parent has a genuine commitment to a process of attitudinal change and developing constructive problem solving techniques, and neither has any genuine belief in the efficacy of any program designed to achieve those outcomes. For the children’s sake, I again urge each of the parents to seek professional help to look first at his and her own responsibility for the present situation, and to seek ways to address his and her role in the creation of the current problems, so that genuine positive change in their parental interaction may then occur for the benefit of the children. Notwithstanding my considerable pessimism at the prospects of positive change, I will order the parents to attend a post separation parenting program.
The Family Consultant was of the opinion that an equal time arrangement was not in [Y]’s best interests “because it has already proved very difficult for the parents to agree on after school activity schedules, which occur on one or two days per week, yet alone over the course of a full week”. The Family Consultant was of the opinion that “a week about option is only practical with younger children if there is good communication and cooperation between the parents and this is clearly lacking here”. The Family Consultant supported [Y] spending more time with his father particularly on a regular day during the week.
The applicable law – parenting issues
The parenting issues fall to be determined under Part VII of the Family Law Act 1975.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about these children, so s.65DAB is not relevant.
Section 60B sets out the objects and principles of Part VII in the following terms:
“60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). Section 60CC indicates how the court determines the children's best interests. It is as follows:
“60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
Sections 65DAC(2) and (3) requires that where under a parenting order two or more persons are to share parental responsibility for a child, decisions about major long-term issues in relation to the child must be made jointly by those persons, and those persons must consult each other about the decision and make a genuine effort to come to a joint decision about the matter. These parents have not been able to do this under the equal shared parental responsibility provisions of the 2007 interim orders. They have not been able to confer and make consensus decisions about their children for the past three years, and there is no indication that situation will change in the foreseeable future, although it is to be earnestly hoped that it will. That would seem to render an equal shared parental responsibility order unworkable. For this reason, I have serious doubts that an equal shared parental responsibility order would be in the children's best interests.
But I am also concerned at the effect of an order that one parent alone have parental responsibility for either child. This would in my view fuel the conflict between the parents, giving one parent significantly greater power which I am satisfied would not be used solely based on the children’s best interests, but also as a further weapon in the parental conflict.
Making no order for parental responsibility would leave the children subject to the risk of total parental anarchy if both parents concurrently had full parental responsibility. An interim equal shared parental responsibility order and an interim restraint on committing the children to activities that clash with the other parent’s time have not stopped each parent making unilateral arrangements contrary to those court orders. No limitation of the parental responsibility of each parent would be likely to lead to even worse outcomes for the children.
Therefore, despite my pessimism about the ability of the parents to be able to exercise it, I am satisfied that an equal shared parental responsibility order is likely to be less detrimental to the children's best interests than the options of a sole parental responsibility order or no order at all as to parental responsibility, for the following reasons:
a)Both parties seek equal shared parental responsibility, in the case of the husband as his first and thus preferred alternative;
b)The Family Consultant recommended equal shared parental responsibility;
c)Equal shared parental responsibility will not empower one parent with greater authority than the other in a way that may be used as a weapon in the parental conflict rather than for the children's benefit;
d)In time, hopefully an equal shared parental responsibility order may provide an impetus to the parents to seek more constructive and less conflictual techniques of co-parenting their children.
The clear inference from the husband's proposals for [X] is that he does not oppose the wife's application that [X] live with her. I am satisfied this is in accordance with [X]’s wishes and in her best interests. I will therefore order that she live with the mother.
Having regard to [X]’s views about spending time and communicating with the husband, her age and level of maturity, and the opinion of the Family Consultant that her views should not be disregarded, I am satisfied it is in her best interests that no specific orders be made about spending time or communicating with the husband. I am satisfied that neither an equal time order nor a substantial and significant time order, alternatives s.65DAA mandates that I consider, are in [X]’s best interests, for the foregoing reasons.
I hasten to add that I do not consider loss of her relationship with her father to be in [X]’s best interests. I am fully conscious not only of s.60B(1)(a) and (2)(a) and (b), but also of s.60CC(2)(a). However, I am satisfied that the breakdown of the relationship between [X] and her father was significantly contributed to by exposure of the children to the toxic relationship between the parents. I am satisfied that until the parents change their mode of interaction as parents and commence to model appropriate problem solving behaviour for their children, and provide an atmosphere that permits each child to freely pursue a relationship with both parents without fear of being seen to take sides in the parental conflict, there is little prospect of [X]’s relationship with the father being reinstated. However, it would be in [X]’s best interests that the wife be required to:
a)ensure that correspondence and gifts received at her home for [X] from the husband are given to [X] unopened;
b)periodically encourage [X] to communicate and spend some time with the husband, and to seek professional counselling assistance to attempt to resolve the issues that have arisen in [X]’s relationship with her father; and
c)immediately facilitate any wish expressed by [X] to communicate or spend time with the husband, or to have professional counselling assistance to attempt to resolve the issues that have arisen in [X]’s relationship with her father.
In my view, until both parents change their mode of interaction, that is, as much as the court can usefully do to try to leave open the prospect of a rapprochement between [X] and her father.
The appropriate living and spending time arrangements for [Y] are far from clear on the evidence. The prior arrangement of living with the wife and spending time with the husband has been productive of a close relationship between the boy and both parents, despite the level of parental conflict, and thus appears to have served the boy’s interests well. [Y] has indicated a preference for the current arrangements to continue, expressing to the Family Consultant some reticence about spending any more time with the husband because he would miss his mother and sister. But that view does not appear to have been tested by the Family Consultant in light of [Y] apparently accepting with equanimity significant absences from his mother and sister during block school holiday time with the husband since [X] stopped seeing the father in July 2008.
As I intend to make an equal shared parental responsibility order for [Y], Section 60DAA requires that I must first consider an equal time arrangement. The husband's first alternative arrangement for [Y] is an equal time arrangement, dividing each fortnight during school term on a 5/5/2/2 basis, and dividing school holidays equally. An alternative equal time arrangement would be week about care in school terms and half school holidays with each parent.
The advantage for [Y] of an equal time arrangement is that he would have a greater opportunity to develop his relationship with his father, a relationship that is under threat from exposure to the wife's, and now [X]’s, negative views of the father. The disadvantages are that it would increase the risk to the boy’s relationship with his mother by increasing his exposure to the husband's negative views of the wife, and it may be contrary to his views, although as previously explained, I am satisfied there are reasons for treating his stated views with caution. It would also reduce the boy’s time with the parent with whom he has the closer parental bond, and reduce his time and therefore inhibit his relationship with his sister.
On balance, I am satisfied that providing the greatest opportunity for the child to continue his relationships with both parents is the most important consideration, and I am satisfied that an equal time arrangement will best foster this. I am not satisfied that the overall exposure of the child to the parental conflict, and thus exposure to emotional abuse, will increase under an equal time arrangement, although there may be less from the wife and more from the husband by dint of the altered times with each parent. While an equal time arrangement may have some impact on [Y]’s relationship with [X], I am not satisfied it will be significant, noting their age differences and therefore their different levels of maturity and interests. Nor am I satisfied that having [Y] spend more time away from the parent with whom he has the closer parental bond will be a significant detriment to him, again considering his age, his close bond with his father, and the fact he has been spending more than a week of block time with the husband during school holidays already without any suggestion of problems arising.
I would also observe that while highly conflictual parenting is often said to contraindicate an equal time arrangement, both parents propose equal shared parental responsibility despite their inability to communicate. If it is in the children's best interests for parents who cannot communicate to have equal shared parental responsibility, as both parents and the Family Consultant suggest it is in this case, I cannot see why an equal time arrangement cannot work adequately, despite the problems with the parents’ attitudes to each other. While there will be some problems under such an arrangement because of the parents’ lack of communication, I am satisfied that the potential benefit to [Y] of a reduction in the erosion of his relationship with his father that I am satisfied will flow from spending less time with the wife outweighs the inconvenience and difficulties that the parents’ lack of communication may cause under an equal time arrangement.
Therefore, I am satisfied that an equal time arrangement is in [Y]’s best interests. The proximity of the parents’ homes means such an arrangement is eminently practical.
However, I am not satisfied that breaking up the school week in the way the husband proposes is the best way of implementing an equal time arrangement, because of the hostility and lack of communication between the parents. A week about arrangement will halve the number of moves for [Y] between the parents’ households, and will give the child continuity in the one household during the whole of each school week, reducing (though not eliminating) the risk of [Y] needing school or other items that are in the other household, and having to negotiate the minefield between his parents to get what he needs. I am satisfied a week about arrangement is more suitable than a split week arrangement as proposed by the father, and I will so order.
I will also order the parents to attend a post separation parenting program, as recommended by the Family Consultant, in an attempt to assist them to modify their interactions as parents for the children's benefit. The wife said she was prepared to attend, as did the husband, and the husband sought such an order. As I have repeatedly said during the hearing, and in this judgment, the parents must improve their mode of interaction as parents to avoid further emotional abuse of their children, and if there is to be any hope of [X]’s relationship with the husband being resumed.
Both parents sought an order restraining the parents from committing either child to activities that may impinge on the other parent’s time with the child. Such an order has been in force since August 2007 and both parties have ignored it. I see little purpose in making such an order now, as neither party gave any indication they appreciated they were culpable in breaching the order, and hence I have no confidence either party would abide by such an order in future. It is simple common sense and courtesy, to say nothing of being obviously best for the child, that neither party commit either child to any activity that would impinge on the other parent’s time with the child. In light of both parents’ disrespect of court orders in the past, one can only exhort the parents to put the children's interests first, and to begin acting towards each other with common sense and courtesy. If they do so, no orders are necessary.
Property settlement issues
The pool of divisible assets, liabilities and resources
There are two issues to be resolved in determining the pool of divisible assets, liabilities and resources, namely-
a)Should a sum of $30,000, or any other sum, be written back as a notional asset of the husband's, in relation to the excess funds borrowed when the Property M property was purchased?
b)Should there be one pool of assets, or separate pools for superannuation and non-superannuation items?
Write back of $30,000
It was the wife's case that a figure of $30,000 should be written back into the pool of divisible assets against the husband because of his dealings with the surplus funds borrowed when the Property M property was bought. The husband opposed any write back.
The bank account records show that on 26 August 2005, the loan funds were drawn down and on 28 September 2005, a sum $56,444 less than the loan funds was withdrawn from the account and used to settle the purchase of the Property M property. Subsequently, it is agreed about $20,000 was repaid to the mortgage account, and a little over $3,000 was added to funds received when the husband cashed a policy for the children’s education and placed in an account he still holds in trust for the children. The difference of about $30,000 is the sum in contention.
As mentioned, the husband produced some receipts, totalling under $15,000, that he said related to expenditure on the Property M property and to the purchase of items for that home. Otherwise, he could not now recall what specific withdrawals from the account holding the surplus borrowed funds were for.
The Full Court’s decision in Townsend & Townsend, (1994) 18 Fam LR 505, (1995) FLC 92-569 is authority for the proposition that funds or property in which one party has a legitimate interest, which are expended or disposed of by the other party after separation, may be brought to account as part of the pool of divisible assets. However, subsequent Full Courts have emphasised that parties are entitled to meet their own reasonable needs from moneys and property available to them, and that writing back assets dissipated since separation should be the exception rather than the rule (Marker & Marker [1998] FamCA 42, unreported, 1 May 1998; C & C [1998] FamCA 143, unreported, 8 October 1998; NHC & RCH [2004] FamCA 633 at [24], (2004) Fam LR 518 at 523, sub nom NHC & RCH (2004) FLC 93-204 at 79,314, citing both Marker and C & C with apparent approval).
The wife bears the onus of proving the facts that would warrant the court finding that the husband's expenditure of $30,000 of the borrowed funds was appropriate in circumstances that warrant the inclusion of an equivalent amount as a notional asset in the pool of divisible assets. However, the wife cannot prove the purpose of expenditure that the husband himself is unable to explain. Thus, it is sufficient for the wife to raise at least an arguable case for the sum to be written back for her to show that the surplus existed, and that the husband can give no, or no satisfactory, explanation of the use of the funds.
In my view, that is the situation in this case. There is no issue a surplus of about $30,000 from the jointly borrowed funds was spent by the husband alone after separation. The husband provided receipts for a little less than half that amount. In cross-examination he was unable to explain a series of withdrawals from these funds.
The husband said some of the funds were spent on renovations before he occupied the Property M property. He said that most of the renovations were completed before he occupied the home in December 2005. The bank records indicate that between the deposit of the borrowed funds and 13 December 2005, a total of $13,196.29 was withdrawn from this account, of which $4350 represented repayments on the mortgage, leaving at most $8,846.29 spent on the renovations. There was no evidence from the husband suggesting any large expenditure on renovations to the home after he occupied it. Nor was there evidence from the husband suggesting expenditure on furniture, furnishings and appliances for the home that might account for a significant portion of the balance of the $30,000.
In those circumstances, I am satisfied it is more likely than not that while some of the $30,000 was spent appropriately, some was not. Having regard to the receipts produced by the husband, noting that some of them seem most unlikely to have been paid for from the borrowed funds, and allowing for the fact it was not disputed that the husband did renovation work on the home and it was not suggested his expenditure on furniture, furnishings and appliances for it was unreasonable, I am satisfied that about half of the surplus funds were appropriately spent by the husband broadly in the manner suggested, but that the balance was not reasonable spent by him and should be written back as a notional asset in his hands.
Two pools or one?
It was submitted on behalf of the husband that there should be one pool of assets, including the superannuation interests of the parties, while it was the wife's case that there should be two pools.
As will appear, the parties’ superannuation interests are quite significant. If combined with the other assets and liabilities, they would represent a little over 24% of a combined pool. They are most unlikely to vest in the parties for many years. Thus, to equate them with presently realisable assets in the one pool may produce a distorted picture. It was the case of both parties that each should simply retain their current superannuation interests, although in the husband's case, the conceded adjustment in the wife's favour would have included an adjustment in effect in respect of superannuation interests to be made out of presently available assets.
Having regard to the comments of the majority of the Full Court in C & C, above, I am not satisfied that in the exercise of discretion I should adopt a single pool method. I am satisfied two pools is a more appropriate means of achieving a just and equitable result in this case.
The parties assets, liabilities and resources
I am satisfied that the parties’ assets and liabilities are-
Item Description Title Amount 1 Former matrimonial home at Property C Joint $680,000.00 2 Property M property Joint $390,000.00 3 AXA shares Husband $2,526.00 4 Jointly borrowed funds spent by husband Husband $15,000.00 5 Husband's credit union account Husband $1,095.00 6 Toyota Landcruiser Husband $6,600.00 7 Household contents Husband $2,000.00 8 Wife's savings Wife $210.00 9 Nissan Pulsar Wife $8,000.00 10 Household contents Wife $5,000.00 11 Mortgage on Property C Joint -$420,000.00 12 Total $690,431.00
It is agreed that the husband's superannuation interests are worth a total of $113,261, and the wife's $105,098.
The assessment of contributions
At the commencement of cohabitation, the wife had a one half interest in a property gifted to her by her parents. The husband had savings of not less than $7,690, being the sum he received as an inheritance. I am satisfied both parties had modest further savings, which the evidence does not enable me to quantify, and which the parties contributed to assist with the costs of the wedding, and to pay for their honeymoon.
The wife's parents made a number of significant contributions on her behalf, namely-
a)they sold the parties their first home without a deposit;
b)they gave the parties in interest free loan to purchase the first home;
c)they forgave about $80,000 of the loan for the first home;
d)they gave the parties $80,000 towards the purchase of the land and the construction of the second home; and
e)they allowed the parties to live rent free in homes the owned from marriage until the parties bought the [S] property, a period of about eight months, and for about three months while the second home was being completed.
In addition, the wife contributed $102,500 from the realisation of her one half interest in the property she owned at marriage to the mortgage on the second home soon after the parties occupied it.
In the scheme of things in this case, these are very significant financial contributions by or on behalf of the wife to the acquisition of the parties’ first two homes. The loan moneys forgiven by the wife's parents represent 53% of the purchase price of the first home. The gift from the wife's parents and the money from the wife's one half interest in the property owned at marriage, contributed to the costs of the second home, represent about 47.5% or 51% of the cost of the land and house, depending in which party’s evidence as to that cost is correct.
Both parties contributed their income earned during the marriage. The wife was the primary carer of the children, although I am satisfied the husband was significantly involved in child care as well. Similarly, the wife was primarily responsible for household chores, significantly assisted by the husband, who also was primarily responsible for maintenance of the lawns and gardens of the homes the parties owned, and was responsible for maintaining the parties’ cars.
In addition, the husband performed significant work on the wife's parents’ home in consideration of the rent free accommodation they provided to the parties, and on the Property C and Property M properties, as set out earlier in these reasons.
Since separation, the children have lived primarily with the wife and spent regular time with the husband until July 2008, when [X] stopped spending time with the husband.
Each of the parties occupied one of the two jointly owned homes. The husband initially paid the whole of the parties’ housing loan. He ceased these payments when a child support assessment issued against him for the two children. Thereafter, the wife met repayments of interest only, but in relation to a joint loan where both of the parties had exclusive occupation of a home.
In my view neither the fact the mortgage loan was secured only on the home the wife and children occupied nor the fact it related only to the purchase of the home the husband occupied is a matter that affects the way mortgage repayments by the parties after separation should be assessed. In my view, both parties had exclusive occupation of a jointly owned property, and they had a joint housing loan. Prima facie, each should have contributed equally to the mortgage repayments, as each was equally benefiting from the houses the parties owned. For the period the husband paid all the mortgage payments and paid no child support, I am satisfied he was making a payment in lieu of child support. Once he commenced making child support payments and paid nothing towards the housing loan and the wife made the only repayments that were made on it, I am satisfied the wife made greater direct financial contributions to the preservation of the former matrimonial home, and indirect financial contributions to the preservation of the Property M home.
In relation to the parties’ superannuation interests, both parties have two interests. They are all in the accumulation phase.
It was submitted on behalf of the husband that the parties’ contributions overall should be assessed as 55/45 favouring the wife. As mentioned, that was in relation to a single pool of divisible assets and resources. The wife's case was that contributions in relation to the non-superannuation items should be assessed as 65/35 favouring the wife, while the contributions to the superannuation should be assessed as equal.
I am satisfied contributions to the parties’ superannuation interests should be assessed as equal. The significant capital contributions by and on behalf of the wife have not affected the acquisition, conservation or improvement in value of any of those interests. Nor have the contributions by the husband in working to improve the parties’ homes. Excluding those matters, I am satisfied that broadly the parties’ contributions overall are equal, and where as here there is very little evidence specifically in relation to the superannuation interests, an assessment of equality of contributions is appropriate.
The most significant contribution issue in relation to non-superannuation items is the relative weight to be given to the capital contributions by and on behalf of the wife, which very greatly outweigh the inheritance that the husband brought into the marriage. As mentioned, they represented very significant proportions of the acquisition costs of the first two properties. However, especially where there are such significant non-financial contributions as here, the assessment of contributions cannot be an exercise in mathematics.
Against the undoubted very significant capital contributions by and on behalf of the wife must be weighed other financial contributions by both parties from income, including to the support of the family in ways that do not result in the acquisition or accumulation of wealth. Also to be included in the balance are very significant non-financial contributions by both parties, in the care of the children and performance of household chores, and by the husband in renovating and maintaining the parties homes, on which no dollar value can be placed. These contributions continued over a significant period, the parties having married over 19 years ago.
The effect of placing these other contributions in the balance with the capital contributions by and on behalf of the wife is to reduce the relative significance of those contributions, and the longer the marriage, and the greater the other contributions that accumulate, the greater is the deflating effect on the significance of these capital contributions.
Taking all these matters into account, I am satisfied that the parties respective contributions should be assessed in relation to the non-superannuation assets as favouring the wife in the proportions 62.5/37.5.
In relation to the parties’ superannuation interests, I am satisfied that the parties’ contributions should be assessed as equal.
These findings would result in the pool of non-superannuation assets being divided as to $431,519 to the wife and $258,912 to the husband. For the wife to retain the former matrimonial home and the husband Property M, the husband would need to pay the wife $158,309 and the wife would have to discharge the joint mortgage of $420,000. It would leave the husband with superannuation interests $8,163 greater than the wife's despite a finding of equality of contributions.
The assessment of non-contribution considerations
It was submitted on behalf of both parties that a 5% adjustment should be made in the wife's favour for non-contribution considerations. However, in the husband's case that was on the basis of a submission that the wife was entitled to a 55% contribution based entitlement to a combined pool of assets and resources.
Both parties are in good health. Both are in employment and have many working years ahead of them barring unforeseeable circumstances intervening. While the wife works four days per week, there is no evidence to satisfy me she does not have a presently exercisable capacity for full time work. The parties have similar full time earning capacities, based on their financial statements and extrapolating the wife's income from a four day week to a five day week.
The wife will have the full time care of [X], presently 14, with little prospect of [X] spending time with the husband. Based on the parenting orders I intend to make, [Y], aged nine, will spend equal time with both parents. I also note, although relatively minor, that the husband will retain a slightly greater superannuation interest than the wife's despite my finding of an equality of contributions to both parties’ superannuation interests.
Taking all these matters into account, I am satisfied an adjustment of 5% should be made to the contribution based entitlements in the wife's favour.
Decision on property issues - a just and equitable order
The result then is that the wife is to receive 67.5% and the husband 32.5% of the non-superannuation assets, and each party is to retain his or her superannuation interests. Both parties agree the wife should retain the former matrimonial home and the husband should retain the Property M property. Thus, it will be necessary for the husband to make a payment of $192,830 to the wife to effect this division of the assets, with the wife to discharge the joint mortgage.
Notwithstanding both parties presenting their cases on the basis that the funds advanced by the wife’s parents during cohabitation were gifts or were loans that were subsequently forgiven, the evidence of the wife's father that the parties still owe the wife's parents $160,000 means it is appropriate that the wife be required to indemnify the husband against any future claim by her parents for moneys said to have been lent to the parties.
There then remains the trust account in the husband's name for the children, and the contents of the former matrimonial home, some of which the husband seeks.
In relation to the trust account, as mentioned the wife sought that half of it be paid to her to be held by her on trust for the children. The husband opposed this as he said it would reduce the interest earned on the funds. He was not opposed to an order that both parents be required to sign to operate the account. However, as mentioned, cooperation for the benefit of their children is one thing these parties have shown themselves incapable of. Decisions as to the reinvestment of the funds will need to be made from time to time in the future. I am concerned the parties may not be able to make those decisions in the best financial interests of the children, and may simply use investment decisions as a new field of combat. I am therefore not satisfied any order should be made in relation to these funds.
The husband sought orders for the delivery to him of specific items of personalty from the former matrimonial home. In cross-examination the wife indicated that she had no objection to the husband receiving most of the items he sought.
The husband sought access to photo albums containing family photos, and all photos, videos and DVD’s of the family to copy them and return the originals to the wife. The wife indicated she would agree to an order providing for the photos being made available to the husband for a period of two months on the proviso that thereafter they be returned to her in the same condition as they were in when he received them.
The wife objected to the husband receiving a computer and LCD screen as the children use them, and said the records had been thrown out. She did not understand what some of the items were, but if they were described so that she could identify them, she had no objection to the husband having them. In relation to some items the husband said belonged to his employer, the wife said that if the husband could satisfy her that the items did in fact belong to his employer, she was happy to return them to the husband. However, there is no indication what proof of ownership the wife would accept.
I do not intend to make any order in relation to the items the husband described as belonging to his employer. As they are not the property of either party according to the husband, they can be dealt with under the general law as the instigation of their rightful owner.
In relation to the remaining items I will make orders for their delivery to the husband, subject in the case of the photos, videos and DVD’s to them being returned to the wife in the same condition within two months. In the absence of any indication of the number of photos, etc that may be involved, and the apparent concession that a catalogue of the photographic items may be prepared by the wife before any are provided to the husband, I am unable to determine a reasonable period in which the wife should provide the photos to the husband.
I certify that the preceding two hundred and twenty-four (224) paragraphs are a true copy of the reasons for judgment of Halligan FM.
Associate: Deanne Bush
Date: 25 May 2009
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