ADRIANOS & PANOS
[2018] FCCA 2228
•21 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADRIANOS & PANOS | [2018] FCCA 2228 |
| Catchwords: FAMILY LAW – Property – date of cohabitation disputed – initial contributions – partial property settlement – add-backs sought – disputed contributions – superannuation split. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 75, 79, 90SF |
| Cases cited: Bangi & Belov [2014] FamCA 8 McMahon & McMahon (1995) FLC ¶92-606 Pierce & Pierce (1999) FLC ¶92-844 |
| Applicant: | MR ADRIANOS |
| Respondent: | MS PANOS |
| File Number: | MLC 8074 of 2016 |
| Judgment of: | Judge Baker |
| Hearing dates: | 14, 15, 16 and 18 May 2018, 12 June 2018, 24 July 2018 |
| Date of Last Submission: | 24 July 2018 |
| Delivered at: | Hobart |
| Delivered on: | 21 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr MacFarlane of Counsel |
| Solicitors for the Applicant: | JH Legal Pty Ltd |
| Counsel for the Respondent: | Mr Mellas of Counsel |
| Solicitors for the Respondent: | Sayer Jones |
ORDERS
The mother have sole parental responsibility for the children [X] born 2008 and [Y] born 2011 (“the children”).
In exercising sole parental responsibility the mother will inform the father, as soon as is practical, of any major decisions made regarding the children’s health, welfare and/or education.
The children live with the mother.
The children spend time with the father as follows:
(a)Each alternate week from the conclusion of school on Wednesday (or 3.30pm if a non-school day) until Sunday 5.00pm.
(b)During one half of term school holidays, with the father to have the first half in even years and the second half in odd years.
(i)The time shall commence at the conclusion of school on the last day and conclude at 6:00 p.m. on the last day of the holiday period. The midpoint of the holiday period is 6:00 p.m. on the middle day of the holiday period.
(c)During one half of the long summer holidays, with the children to spend time:
(i)With the father in the first half and with the mother in the second half in all even numbered years; and
(ii)With the mother in the first half and the father in the second half in all odd numbered years.
(iii)For the avoidance of any doubt, the long summer holiday period commences at the conclusion of school on the last day of school term and concludes at 6.00pm on the last day of the holiday period. The midpoint of the long summer holiday period is 6.00pm on the middle day of that period or if the parties cannot agree on which day that is 6.00pm on the 19th day of the holiday period. The usual cycle for care periods pursuant to order 4 (a) shall be suspended during the long summer holiday period and resume in accordance with the usual cycle as if the holiday period had not intervened.
(d)Over the Greek Easter weekend the children shall spend time:
(i)With the father from 9.00am Sunday until 9.00am Monday in 2019 and each alternate year thereafter and 9.00am Saturday until 9.00am Sunday in 2020 and each alternate year thereafter.
The children’s time with the father be suspended on Mother’s Day weekend, such that they spend time with the mother from 5.00pm on the Saturday before Mother’s Day until 9.00am on the Monday following Mother’s Day.
The children’s time with the mother be suspended on Father’s Day weekend, such that they spend time with the father from 5.00pm on the Saturday before Father’s Day until 9.00am on the Monday following Father’s Day.
If the children’s birthdays fall on a day when in the mother’s care, the mother’s time be suspended and the children spend time with the father for not less than 3 hours at times to be agreed between the parties, and failing agreement, from 3.30pm until 6.30pm if a school day and from 10.00am until 1.00pm if a non-school day.
If the children’s birthdays fall on a day they are in the father’s care, the father’s time be suspended, and the children spend time with the mother for not less than 3 hours at times to be agreed between the parties, and failing agreement, from 3.30pm until 6.30pm if a school day and from 10.00am until 1.00pm if a non-school day.
The children’s time with the father be suspended and they remain in the mother’s care from 24 December until 26 December and the children spend time with the father over the Christmas period:
(a)From 5.00pm on Christmas Eve 2018 until 1.00pm on Christmas Day 2018 and each alternate year thereafter; and
(b)From 1.00pm Christmas Day 2019 until 10.00am Boxing Day 2019 and each alternate year thereafter.
The parties shall agree to any other arrangements for the children’s care from time to time in writing.
In the event that the father is unwilling or cannot care for the children overnight, he shall give the mother first option to care for the children for that period of time.
In the event the mother is unwilling or cannot care for the children overnight, she shall give the father first option to care for the children for that period of time.
Unless otherwise provided for in these orders or as otherwise agreed, all changeovers not occurring at the children’s schools shall take place as follows:
(a)At the commencement of the children’s time with the father, the father shall collect the children from the mother’s home; and
(b)At the conclusion of the children’s time with the father, the mother shall collect the children from the father’s home.
The children communicate with the father by telephone or electronic device such as FaceTime or video conference, between 6.30 and 7.30pm every Monday, Wednesday and Saturday when they are not in his care.
During term time, the children communicate with the mother by telephone or electronic device such as FaceTime or video conference, between 6.30 and 7.30 pm on Friday when not in her care, and during school holiday time every Monday, Wednesday and Saturday between 6.30pm and 7.30pm.
For the purpose of telephone and electronic communications, the other parent shall ensure that the children or either one of them are afforded privacy and that any mobile or electronic device used for such communication is fully charged and switched on.
The parties communicate directly by text message or email (or in urgent circumstances by telephone) in relation to any issues concerning the care and welfare of the children.
Insofar as reasonably practicable, the parties shall make reasonable efforts to ensure the children attend their agreed extra-curricular activities on times and days when the children or either of them is in that party’s care.
The parties each be at liberty to:
(a)Liaise with any medical, educational or other professionals involved with the children and obtain all information and documents ordinarily make available to parents; and
(b)Attend all significant medical, educational and other appointments and events concerning the children at which parents are ordinarily in attendance with no less than 24 hours’ notice to be provided where the parent without the care of the children intends to attend.
The parties keep each other informed of:
(a)All significant medical issues concerning the children and any appointments relating to same; and
(b)Any significant injury suffered by the children whilst in their care.
Each party shall ensure the other party is kept advised of their current residential address and phone number and notify the other party in writing of any respective changes to them within 7 days of such change taking effect.
Each party shall sign all necessary documents and to all other things as may be required for the children to be issued Australian passports and they shall be kept current and the expenses for doing so are to be shared equally.
The passports issued in the names of the children shall be retained by the mother.
The parties shall not remove the children from the State of Victoria or the Commonwealth of Australia unless they have:
(a)Provided the other parent with 14 days written notice for travel within Australia and 30 days for overseas travel, including flight itineraries and all accommodation details, including telephone numbers and websites where available; and
(b)The other parent has provided their written consent to the travel, with such consent not to be unreasonably withheld.
The mother to provide to provide to the father the passports of the children 14 days prior to the travel and the father to return to the mother the children’s passports within 14 days after travel.
Both parties be and are hereby restrained from:
(a)Discussing these proceedings with or in the presence of the children or each of them;
(b)Discussing parenting issues in dispute with or in the presence of the children or each of them; and/or
(c)Denigrating the other parent in the presence of the children or each of them.
Both parties:
(a)Attend and complete, as soon as practicable, a Post Separation Parenting Program.
(b)Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.
(c)Pay and otherwise be responsible for all costs associated with the program.
(d)Provide evidence to the other party’s solicitor that they have enrolled in the program.
(e)Provide evidence to the other party’s solicitor that they have successfully completed the program.
PROPERTY ORDERS
Within 28 days the parties do all such acts and things and sign all necessary documents for the funds held in [A] and [B] trust account to be paid to the Father.
Within 60 days, the Mother shall pay the Father the sum of $107,151.
the father shall retain all of his right, title and interest in the following to the exclusion of the mother:
(a)the property known as an situated at Property A and any liability attached thereto;
(b)any funds in bank accounts in his name;
(c)his interest in the Adrianos Family Trust;
(d)his Motor Vehicle 1;
(e)his businesses including but not limited to Mr Adrianos (Sole trader) and Business 1 and any liabilities attached thereto;
(f)any chattels in his possession.
The mother shall retain all of her right title and interest in the following to the exclusion of the father:
(a)the property known as and situated at Property B and any liability attached thereto in the father shall, at his expense, sign all documents and do all necessary things to withdraw the caveat secured against the property within 28 days;
(b)the property known as and situated at Property C and any liability attached thereto, and the father shall, at his expense, sign all documents and do all necessary things withdraw the caveat secured against the property within 28 days;
(c)any funds in bank accounts in her name;
(d)her Motor Vehicle 2 and any liability attached thereto;
(e)her Motor Vehicle 3 and any liability attached thereto;
(f)any chattels in her possession.
The father shall indemnify the mother in respect of all debts, liabilities, interest, costs or outgoings in relation to any of his creditors, and/or his related entities, any and all of his borrowings and/ or those of his related entities, and any and all of his taxation liabilities and/or his related entities.
The mother shall indemnify the father in respect of all debts, liabilities, interest, costs or outgoings in relation to any of her creditors and/or her related entities, any and all of her borrowings and/ or her related entities, and any and all of her taxation liabilities and/ or those of her related entities.
Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.
(c)Insurance policies remain the sole property of the owner/beneficiary named thereon;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
The base amount of $25,916 be allocated to the Father out of the interest of the Mother, being Member No: in the Super Fund K (“the Fund”), with the Trustee of the Fund being Australian Financial Service Licence (“the Trustee”).
This order is binding on the Trustee.
Pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest held by the Mother in the Fund:
(a)The Father is entitled to be paid, and the Trustee of the Fund shall pay him, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
(b)There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders;
(c)This Order has effect from the operative time;
(d)The operative time for the purpose of these Orders is the fourth business day after the date of serve of a sealed copy of these Orders on the Trustee of the Fund; and
(e)The Mother be hereby restrained by herself, her servants, or agents from executing and/or giving to the Trustee of the Fund, a binding death nomination in favour of any person, doing any such act or thing, which would render any part, or payment from, her superannuation interest in the fund a ‘non-splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 such as would defeat the Mother’s entitlement, pursuant to this Order.
(f)The Father, the Mother and the Trustee of the Fund have liberty to apply in relation to the implementation of the Orders insofar as they relate to superannuation.
(g)That, after service of the payment split notice pursuant to regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Father shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising his request pursuant to regulation 7A.05 of the Superannuation Industry (Supervision) Regulations 1994 for the creation of a new interest in his name in the Fund;
(h)The Court notes:
(i)The value of the transferable benefits to be transferred from the Mother’s interest to the Father will be calculated by the Trustee in accordance with Regulation 7A.11 of the Superannuation Industry (Supervision) Regulations 1994; and
(ii)Pursuant to regulation 14F of the Family Law (Superannuation) Regulations 2001, any payments from the Mother’s superannuation interest in the Fund made after the Trustee has created a new interest in the Father’s name in the Fund, as contemplated by paragraph 3 (g) of these Orders, are not splittable payments.
IT IS NOTED that publication of this judgment under the pseudonym Adrianos & Panos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
MLC 8074 of 2016
| MR ADRIANOS |
Applicant
And
| MS PANOS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property proceedings commenced by the father.
The parties commenced cohabitation in 2006, according to the father, and in 2007, according to the mother. They married on 2009 and separated on 24 April 2016. They have two children, [X], born 2008 and [Y], born 2011.
At separation the mother vacated the former matrimonial home at Property D (‘the Property D property’) with the children, and lived with her parents until mid-June 2016. She then commenced living with the children at her Property C property, which was previously tenanted. She is employed as a (occupation omitted) and earns a gross income of $1,543 per week. She also receives rental income from a property that she owns, Property B (‘the Property B property’). She has an adult son, Mr J, from a previous relationship.
The father is currently unemployed and receives payments for loss of income from the Transport Accident Commission (‘TAC’) regarding a motor vehicle accident that occurred in June 2016. He receives $879 per week. His driver’s licence was suspended after the accident, due to a suspected medical condition, until the suspension was lifted in November 2016. The father has an adult daughter, Ms M, from a previous relationship.
On 14 October 2016, interim orders were made that provided for the children to live with the mother and spend time with the father each alternate weekend, from the end of school on Thursday until 5:00 p.m. Sunday in one week; and on the other week, from the end of school on Thursday to the commencement of school on Friday.
Documents Relied Upon
The father relied on his affidavits sworn 9 October 2017 and 3 May 2018; his financial statement filed 9 October 2017; the affidavit of Ms M sworn 3 May 2018; and the affidavit of Ms G filed 10 May 2018.
The mother relied on her affidavit filed 2 May 2018; her financial statement filed 2 May 2018; the Family Report of Ms J dated 24 February 2017; and the Family Report of Ms B dated 2 October 2017.
Credit of the Parties
At times, it was difficult to believe the evidence of either party.
The father was an unimpressive witness. He was not clear at times. As observed by Ms B, he provided disjointed and at times unintelligible accounts of events, for example about a fee issue regarding the Suburb M School.
His evidence about not receiving income from his Business 2 working as a (occupation omitted) was not credible. In his affidavit, he deposed that the funds paid into his bank account are for work done by his daughter and others he referred work to.
When he was asked why he continued to receive funds into his bank account, he said:
… It was – it was a deposit to secure the date, and that’s all they left. That’s just the formality …and…that bank account was printed on a pre-printed job sheet. They were printed job sheets…the other person gets the money…When you’re…in this industry, with the people that I work with, we don’t – we don’t take cuts from each other. It’s, “You take this job”, “You give me this job”, and that’s how it worked...it’s not an issue…of just monetary. It’s an issue just to try to get back into the workplace, and – and – and, if anything, I would love to be working.
His evidence about the withdrawal of $47,291.05 from his Bank 1 account on 24 December 2014, and his explanation that he withdrew this sum to take home to keep in a safe with a broken lock, to use for living expenses, was not credible.
His evidence about receiving cash from his pensioner parents of six amounts of $10,000, and of these sums being handed to him at the dinner table was also not credible.
The mother was also an unimpressive witness. She was unresponsive and argumentative. She was unable to control her emotions and her hostility towards the father was palpable. She called him ‘a monster’ at least four times on the last day of the trial. She embarked on a tirade of abuse about him, until I intervened. She called him ‘a moron’ in a text message to him in February 2018. She agreed during her evidence that she believes he is ‘a moron’.
She was evasive or could not recall evidence when it suited her. An example of this was her evidence that she could not recall that the father facilitated telephone time with [X] for her when he was staying with him for 27 days in September 2016.
The mother’s evidence about contributions to the Property C property was unsatisfactory. She said that the first time she knew that the Property C property was an issue was at the commencement of the trial. This was despite the father having deposed in his affidavits that he contributed financially to this property.
She firstly denied that the father paid the deposit. When it became apparent to her that there was documentary evidence about this, she asserted that she paid him back. Her evidence was that:
Mr Adrianos was being really nice and offered to pay… I thought he was really nice at the time, and so I then transferred the money back. He just happened to have his cheque-book and was all organised… I didn’t understand why he did this. I thought he was being nice.[1]
[1] Transcript of Proceedings 16 May 2018, 243.
After a lengthy examination of her bank accounts, she then asserted that she had not wanted the father to assist her. She asserted repeatedly that she had sufficient funds in her five bank accounts to pay the deposit herself. She then stated that the father was laundering money through her accounts.
The mother’s impersonation of the father’s medical practitioner to the TAC demonstrated her capacity to be deceitful. During cross-examination, she agreed that on 14 September 2016, she telephoned the TAC stating that she was trying to arrange medical appointments for the father and asked for his medical reports to be sent to her. She agreed that she was told that TAC did not have the father’s consent to speak to her, and they could not disclose this information. She then agreed that she subsequently telephoned TAC and impersonated the father’s medical practitioner, Dr M. She agreed she was asking for information about his accident. Her explanation for impersonating the father’s doctor was, ‘I panicked… Mr Adrianos had passed out at the wheel, and he’s done it many times with the children in the car… And I had a concern.’ She agreed that she was prepared to lie to the TAC.
She also wrote a letter to the TAC in September 2017 about the father’s hypertension and about him fainting while driving. Her explanation for taking one year to do this was because she was ‘traumatised by losing my house…my marriage, relocating…changing schools…’
The mother asserted that the father did not make full and frank disclosure during the proceedings. There was a dispute about the extent of documents requested by the mother over many years. There is correspondence from the father’s lawyers referring to numerous disclosed documents, including but not limited bank statements, income tax returns, superannuation statements, credit card statements, home loan statements, and correspondence from the liquidators of Business 1.[2] The father had produced his income tax returns for the years 2013-2016 in March 2017. He requested the ATO to provide him copies of his returns for 2006-2013 in December 2017 after an order for disclosure was made in respect of both parties on 27 October 2017.[3] He had not received these from the ATO at the time of this hearing.
[2] Exhibits H2, H3 and H5.
[3] Exhibit H13.
The father also asserted the mother did not make full and frank disclosure. He subpoenaed Bank 2, Bank 3 , Bank 1 and Bank 4, in respect of her accounts. He was required to subpoena Medical Centre.
I consider there were problems of disclosure in respect of both parties. This made the matter more difficult than it should have been. The way the litigation was conducted, and with the mother changing lawyers and using three different firms, I am unable to find whether one party was more at fault than the other.
This is a matter in which both parties gave evidence which suited their own purposes and they were both untruthful. This is not a matter where I am able to make a finding that I prefer one party’s evidence to that of the other party wherever it conflicts on the disputed issues. Instead, I shall consider and make findings on the facts in relation to disputed issues.
Evidence of Ms G
Ms G is the father’s former wife and the mother of his daughter Ms M, who lives with her.
During cross-examination, Ms G said that she and the father separated in 2006. She became aware that the father was having a relationship with the mother on 2006. The father moved out of their home at the beginning of 2006. The father told her that he had moved in with the mother in around 2006.
Ms G said that the father had businesses in Suburb N and Suburb O. She cannot recall anything about the store at Suburb P as that was set up towards the end of their marriage.
Ms G was a credible and impressive witness and I accept her evidence.
Date of Cohabitation
One disputed issue was the date of the start of cohabitation. The father asserted that the parties commenced cohabitation in early 2006. According to the mother, the parties commenced cohabitation in around 2007. Her evidence about the date of cohabitation was not credible. She accepted the evidence of Ms G, but said that the father must have been lying to Ms G about living with her in 2006. She said that at that time the father was staying overnight with her about three times each week.
I do not accept the mother’s evidence that she did not ask the father where he was living at the time because she had to focus on university and her son.
I prefer the father’s evidence and consider that cohabitation commenced in 2006.
Proposals of the parties for parenting orders
The father proposed that the parties have equal shared parental responsibility for the children; that they live with the mother and spend one block of time with him each alternate week from the conclusion of school on Tuesday until 5:00 p.m. Sunday (five nights per fortnight). He also proposed that the children spend one half of each school holiday period with each party and time on special days. He proposed that the mother be in substantial attendance when the children are in her care.
The mother essentially proposed that she have sole parental responsibility for the children; they live with her; they spend time with the father:
a)In week 1:
i)from the end of school on Thursday until the commencement of school on Friday;
b)In week 2:
i)from the conclusion of school on Friday until 5:00 p.m. Sunday.
This is equivalent to three nights per fortnight. She also proposed that, on condition the father is available, the children spend time with him for one half of all school holiday periods. She also proposed special day arrangements. She proposed that the father be in substantial attendance during the children’s time with him.
Both parties proposed various restraint orders and travel orders.
Dr J’s Report dated 24 February 2017
Dr J prepared a psychological assessment in respect of the family. She gave a detailed history of the parties.
Dr J assessed the personalities of the parents. She described that the mother’s results of the personality assessment inventory:
tend to be associated with narcissistic features where others perceive them as somewhat arrogant and lacking in self insight. Ms Panos’ results suggest personality features tending towards denial of any problems or flaws.
Dr J found the mother a woman with strong views and beliefs about her superiority. She wrote, ‘her estimation may be accurate, however I wondered at how others might experience her and I suspect they might describe her as somewhat arrogant.’
Dr J wrote that the father’s scores:
represented a classic style of repression where people who score this way tend to function well, but do not easily deal with problems or criticisms of them. In these type of situations, they can become rigid and sanctimonious towards others. Mr Adrianos’ results indicate a personality style towards self-enhancement but also suggest that he was influenced by the context and sought to provide a positive impression.
Dr J wrote that the father ‘was somewhat self-absorbed. He spoke in a superficial way and used much jargon. His account often seemed unreliable.’
Dr J described [X] as an eight-year-old boy who impressed as very confident.
Nevertheless, he showed signs of internal disturbance and that he was often immature in his responses and sometimes glib. At times, he became silly and I observed that conversations about his family situation appeared to make him uncomfortable. He showed intense discomfort at the thought of his parents meeting at my assessment.
Dr J described [Y] as a five-year-old girl, who took a considered approach. ‘She was also most confident and very self-possessed.’
She wrote:
the observations found that both parents have similar parenting style with high levels of indulgence and few controls or boundaries around the children’s behaviour. The children present as having supreme confidence in their abilities but do not easily deal with adversity (and in this context, not winning at a game). The parenting style exhibited by both parents is not likely to provide the children with a sense of security and satisfaction. Neither child appeared content and they were disturbed and easily upset.
Dr J was of the view that the arrangements for the children at that time appeared to be the most appropriate, and she could not recommend any significant changes. At that time, the children were living with the mother and spending time with the father each alternate weekend, from after school on Thursday until 5:00 p.m Sunday, and each alternate Thursday overnight from after school until the commencement of school the following day (four nights per fortnight).
Dr J’s evidence was not challenged and neither party required her for cross-examination. I accept her evidence.
Family Consultant Ms B’s Evidence
Ms B prepared a Family Report dated 2 October 2017. She was cross-examined by counsel for both parties. She did not change her recommendations during cross-examination.
Ms B recommended that the mother have sole parental responsibility, the children live with the mother, and the children spend time with their father from Friday to Sunday in one week and one overnight in the other week (three nights per fortnight). She wrote that if the parties agree to block time, that the children should spend time with the father from Thursday to Sunday or Friday to Monday in alternate weeks. She recommended that the children spend half the holidays with the father, conditional on him being able to be with the children. She recommended that orders should make provision for special occasions with times clearly specified.
Ms B’s recommendation to reduce the children’s overnight time with the father was based on the children spending overnight times at other people’s homes, which from the children’s account to her was sufficiently frequent to create disturbance and confusion for them. She wrote, ‘if it does occur frequently as indicated by the children, it is better to reduce the number of overnights they spend with him and thus limit the extent to which the children feel displaced.’
Ms B considered that Dr J’s report summarised her conclusions about the family. Ms B found during her interview with the father that he was preoccupied by his criticisms of the mother. She wrote:
the theme that emerged from Mr Adrianos’ need to revert to recounting his version of events, was his feelings of humiliation of being wrongly exposed as having had an affair and of rejection. Issues about the separation were conflated with the issues surrounding the choice of schools and the children’s exclusion and enrolment at Suburb Q. They also related to power and control issues and capacity to prevail. These factors form part of the foundations of the dysfunctional dynamics between the parties and are strongly predictive of their inability to reach mutually agreed decisions. The question of the children’s welfare becomes irrelevant or forgotten as occurred in example of [X]’s school enrolment.
Ms B wrote about the mother’s reasons about the children not living with the father for longer periods. The mother considered him not to be an overly capable parent. The children are rarely showered when in his care, [Y]’s hair plaits are not done, homework is not done, the children are frequently taken out, and he is reliant on his family and friends for the care of the children, including frequently overnight. She was concerned that the father did not have an epi-pen for [X] at his home, nor had he provided one for the school.
Ms B wrote that the mother was quite receptive to feedback about the management of the children and how better to assist them in their development and in their capacity to cope with a parent separation and ongoing conflict.
Ms B concluded that since Dr J’s assessment, some of the party’s and family’s dysfunctional dynamics have continued whilst others have changed. She wrote that the parties’ relationship has not improved, nor has their capacity to make joint decisions or cooperate to make decisions in the best interests of the children. She wrote: ‘the power relationship and tussle for dominance remains and there were many examples of the destructive impacts of it…’
Ms B’s evidence was helpful, although it is not determinative and must be weighed against all other evidence.[4]
[4] Hall & Hall (1979) FLC ¶90-713.
Relevant law
In respect of parenting proceedings under Part VII of the Family Law Act 1975 (‘the Act’), s.60B sets out the objects of Part VII, and the principles which underlie those objects. They are as follows:
(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).
Section 60CA of the Act provides that, when a court is determining whether to make a particular parenting order in respect of a child, the child’s ‘best interests’ is the paramount consideration.
In determining the child’s best interests, a court is required to consider the matters under s.60CC of the Act, informed by s.60B.
Section 61DA provides a presumption, that if a court makes a parenting order, it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of child abuse or family violence and may be rebutted if not in the best interests of the child. If the presumption of equal shared parental responsibility applies, a court is required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests, and is reasonably practicable. If a court does not make an order for equal time, it is then required to consider whether it is in the child’s best interests, and whether it is reasonably practicable, for the child to spend substantial and significant time with each of the parties.
I turn to consider the relevant matters pursuant to s.60CC of the Act.
Primary considerations
Section 60CC(2)
(a) ‘the benefit to the child of having a meaningful relationship with both of the child’s parents’
The term ‘meaningful’ is not defined in the legislation but has been the subject of a number of judgments.
In McCall & Clark,[5] the Full Court of the Family Court said that the preferred approach to this consideration is to consider the ‘prospective approach’ to the child of having a meaningful relationship with their parents. That is:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.[6]
[5] (2009) FLC ¶93-405.
[6] Ibid [118].
I consider that the children will benefit from having a meaningful relationship with both parents. Both parents have acknowledged this.
Section 60CC(2)
(b) ‘the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.’
Pursuant to s.60CC(2A), when applying the considerations set out at ss.60CC(2)(a) and (b) the Court is to ‘to give greater weight to the consideration set out in paragraph (2)(b).’
The father has expressed concerns that the mother’s son, Mr J is a drug user. Although the father told Dr J in February 2017 that Mr J’s alleged methamphetamine use ‘is not an issue,’ he sought an order that the mother be restrained from leaving the children in his sole care or allowing him to live with the children. The mother asserted that Mr J does not use drugs and that he has a close sibling bond with the children and does not pose a risk to them.
The father has also sought an order that the mother be in substantial attendance when the children are in her care. He asserted that she left the children unattended by themselves in the early morning to go to the gym. He asserted that the children were being left alone each morning from 5.30 a.m. until 7.15 a.m. This was denied by the mother. I accept her evidence that she does not leave the children alone unsupervised.
The mother sought an order that the father be in substantial attendance when the children are in his care, due to him leaving the children overnight with family members or close friends. The father gave evidence that he has taken on board the recommendations of Ms B that the children should not frequently stay overnight at other people’s houses. He said that the children have slept overnight at Ms M’s house on two occasions over the last seven months. Ms G gave evidence that during 2017, the children visited and stayed overnight at her home on around four or five occasions until October 2017. They stayed on around two occasions after that until the end of the 2017. During 2018, they stayed overnight on several occasions. She said that they have wanted to stay because they like spending time with Ms M, and they have fun playing games and interacting with her. They also like her cat.
I accept the father’s evidence that he has reduced the number of nights the children stay with family or close friends.
I am not persuaded by the evidence that that any of these orders need to be made to protect the children from risk of harm.
However, the children need to be protected from exposure to conflict by their parents. In her report dated 24 February 2017, Dr J wrote that [X] showed anxiety about his parents meeting at the assessment with the expectation that they each contribute to open conflict. [X] conveyed that he has long been exposed to a volatile relationship between them, ‘they are like each other when they are together they fight.’ He told her that ‘being divorced’ was much better and ‘they don’t fight as much anymore.’ Dr J did not doubt his estimations. She said:
unfortunately, the children’s behaviour suggests that they have had very poor models of behaviour in relation to conflict resolution… [X] and [Y]’s parents appear eager to argue over anything and invent conflict as a reflection of their competitive natures… neither parent shows insight about the need to protect children from conflict.
In her Family Report dated 2 October 2017, Ms B wrote:
the personalities of the parties and the extent of their differences lead to a pessimistic outlook about the party’s capacity to co-parent and the potential for re-litigation. The children’s behaviour and exposure to family conflict was a concern as was the parents’ indulgence and perpetuation of it… The power relationship and tussle for dominance remains and there were many examples of the destructive impact of it: the children’s school enrolment, the debacle surrounded [X]’s ultimate change of school and non-payment of fees despite court orders, stand-offs about when holidays shall commence, and whether the father has an epi-pen and if so, whether he is sufficiently diligent in all the children’s care needs…
The father complained to Dr J that the mother screams at the children and hits them. The children reported to Ms B that their mother ‘yells less’, than when Dr J completed her assessment.
I agree with Dr J’s assessment of the parties and their argumentative and competitive nature. This was evident from their oral evidence and attitudes towards each other.
The children need to be protected from psychological harm from exposure to the parties’ conflict in the future.
Section 60CC(3)(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
The father gave evidence that the children have repeatedly expressed their view that they wish to spend more time with him.
Dr J interviewed the children in December 2016. She wrote that [Y] ‘shows some satisfaction with the current Court orders to allege that they have given her consistency and have reduced the parental conflict.’
Dr J took [Y] through a Likert scale with 10 being most happy. She told her that spending more time with her father would make her 9 out of 10 happy, less time with him would make her 0 out of 10 happy; more time with her mother was given as 8 or 9 out of 10 and less time with her as 0 or 1 out of 10.
[X] told Dr J that he would feel ‘10 out of 10’ about spending more time with his father, and ‘4 out of 10’ about spending less time with him. In respect of his mother, he said ‘8 out of 10’ about more time with her, and ‘3 out of 10’ for less time with her.
Ms B interviewed the children in September 2017. [Y] told Ms B that ‘being at Dad’s it confuses me…and I don’t want to see that much…because we basically sleep at Ms M’s and at our cousins and at our Nonna’s and sometimes at Dad’s.’ In contrast, [X] told Ms B that she feels settled and happy with her mother and wants to be more with her.
[X] told Ms B that satisfaction with his life with his mother was between 8.7 and 8.9. He could think of nothing to improve his life. He described his life with his father as being 8.8. Most of all he wants his parents to resolve their differences. He said ‘I just want all this to be over.’ He confirmed that things were ‘getting complicated’ for him that he felt under some pressure and it was ‘messing with my head’.
The children are young. I take their views into account but do not place weight on them.
Section 60CC(3)(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);
The children have close and loving relationships with both parents.
The mother told Ms B that the children enjoy spending time with the father and love him. She also told Dr J that [X] has close relationships with both parents. She said, ‘he loves his mum and dad evenly. He adores us both.’ In respect of [Y], the mother told Dr J that she believes that [Y] has a closer relationship with her than with the father, and she shows a clear preference for her (‘she is clingy on me . She wants me.’)
Dr J observed that at the end of the session with the mother, [Y] made a show of having difficulty separating from her mother, ‘but her behaviour was exaggerated and not sincere. Ms Panos reassured [Y] before leaving. [Y] made a token protest and said, “mummy” in a regressed voice but smiled through her complaints.’
Ms B wrote that the father loves his children and they love him.
The children enjoy aspects of their time with their father and particular activities in which he actively participates and directly involves himself with the children. Their relationship with their father is different to that with their mother and is more distant.
Ms B described their interactions with the mother as having greater warmth and physical affection, especially by [Y]. She wrote that the relationship between them appeared normal with evident warmth, love and trust.
The children have a close relationship with their sister Ms M and with the father’s extended family. They have close relationships with the maternal grandmother and their brother Mr J.
Section 60CC(3)(c)
the extent to which each of the child’s parents 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;
The mother prevented the father from spending time with [Y] from around June 2016 until consent orders were made in October 2016.
Dr J observed that the mother:
showed a level of defensiveness when asked about the period after separation and whether the children had seen the father. She said “he saw [X] at school and my solicitor was a bit slow off the mark to get things going. I was the main caregiver. He was out at nights and… He had never bathed [Y].” She said that Mr Adrianos had come to the school to see [X] but suggested that [Y] had not wanted to see her father (“[Y] she was quite attached to mum and still is”). She said in an oblique way that Mr Adrianos had telephoned her repeatedly, presumably to talk about seeing the children.
During cross-examination, the mother justified [Y] not spending this time with the father on the basis that it was a volatile time, her marriage crumbled and everything was in disarray. She was stressed and not in the right frame of mind. She agreed that she did not want [Y] to go because [Y] was clinging onto her and was not comfortable to leave her. Because [Y] did not want to go, she ensured that she did not go.
The mother also did not allow telephone communication. I accept the father’s evidence that on 25 September 2016, she pretended that [Y] was not at home, even though the father could see her on FaceTime and could see the mother pushing [Y] away from the screen. The father could hear [Y] say, ‘I want to talk to daddy and Ms M.’
The mother allowed [X] to spend time with the father on the Father’s Day weekend, and from 2 until 29 September 2016. Her reason for that was that she was trying to be accommodating. She said she did not have a problem with the father caring for him because ‘I knew that they would be cared for by Ms S and his sister and Ms G and Ms M and his mother and everyone else.’
I accept the father’s evidence that the mother did not allow [X] to spend time with the father on [X]’s birthday this year, and that she has not facilitated telephone communication between the children and him.
Section 60CC(3)(ca)
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother is maintaining the children. The father pays child support of $58 per month.
Section 60CC(3)(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;
There are not likely to be any substantial changes in the children’s circumstances. They will continue to live with the mother and spend time with the father.
Section 60CC(3)(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;
This sub-paragraph is not relevant.
Section 60CC(3)(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;
I consider that both parents are limited in their capacity to provide for the children’s emotional needs.
As already discussed, Dr J observed that both parents have similar parenting styles with high levels of indulgence and few controls or boundaries around the children’s behaviour. She noted that this ‘is not likely to provide the children with a sense of security and satisfaction. Neither child appeared content and they were disturbed and easily upset.’
Dr J also noted that the parents’ disputes demonstrated ‘the deficits in each parent’s capacity to appreciate the children’s perspectives.’ She was of the opinion that they each show little insight into the children’s needs, and the need to protect them from conflict.
When Ms B interviewed the children, they had settled down into a routine and had been exposed to less conflict. Ms B was of the view that the mother appeared to have begun to emotionally disengage from the conflict of the relationship and ‘is now commencing to make psychological progress along the separation process.’ She wrote that she was able to give an intelligible account and gave good consideration to the children’s needs when making decisions. However, she noted that there is room for improvement in her needing to have a better understanding of the impact of conflict and of the parents’ behaviour on the children, and developing better boundaries about the information shared with the children.
The mother’s attitude to the father during her evidence did not demonstrate that she had begun to disengage from the conflict of the relationship. She was hostile and derogatory about him. I do not accept her denials that she does not denigrate the father to the children. I am of the view that her capacity to provide for the children’s emotional needs has been affected by her hostility towards the father and her lack of insight about being derogatory about him in their presence.
I accept the father’s evidence that [Y] has told him that the mother says such things as, ‘mum always screams I hope dad drops dead.’ I accept his evidence that [X] has told him his mother says, ‘dad’s a moronic bastard, he’s a liar, why does he still drive Ms M’s car?’ The mother needs to be restrained from being derogatory about him in the hearing or presence of the children. The father has proposed a mutual order in this regard.
The mother raised numerous concerns about the father’s capacity to parent. She was concerned that he did not have an epi-pen for [Y], but agreed that he was familiar with its use, as his daughter Ms M had one for many years. She complained that he did not attend properly to [Y] when she had an ear infection, but then conceded that he had acted appropriately and taken her to the doctor.
I agree with the submission of counsel for the father that the mother ‘toned down’ her concerns about the father’s capacity to parent during her evidence. She was not concerned about his capacity to parent when she allowed [X] to say with him for a period of 27 days in 2016. She has also proposed that the children spend one half of all school holidays with the father.
Ms B was of the opinion that the father’s description and perception of the children was limited and he appeared to have less understanding of their circumstances, their feelings or needs than the mother. He did not have insight into the children’s need to spend more time with him overnight than in other people’s homes.
Although I consider that the mother is more attuned to the children’s needs than the father, and has a better capacity to provide for their physical and intellectual needs, I am of the view that the father has the capacity to provide for these needs.
Section 60CC(3)(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
The father was born in (country omitted) and migrated to Australia when he was 4 years old. He seeks that the children spend time with him over the Greek Easter weekend each year.
Section 60CC(3)(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;
This sub-paragraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
At times both parties have demonstrated an irresponsible attitude to parenting by exposing the children to their conflict.
The mother has been irresponsible in refusing [Y]’s time with the father for several months in 2016, and also for refusing telephone communication with the father.
The father was irresponsible by not paying any child support until the start of 2018.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
An interim intervention order was made on 28 September 2016 against the father. This order included the children as affected family members. The mother discontinued the application. The father made an application against the mother for an order, but subsequently withdrew it.
Section 60CC(3)(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;
It would be preferable for the children for the Court to make orders least likely to lead to the institution of further proceedings. However, I agree with the assessments made by Dr J and Ms B that, due to the personalities of the parties and their inability to agree about anything, and the hostility of the mother towards the father, it is likely there will be further proceedings. I agree with Ms B that the capacity for insight, for taking responsibility or for mutual understanding is absent. This is unfortunate, as any further proceedings are likely to impact on the children.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the court thinks is relevant.
Parental Responsibility
An order for equal shared parental responsibility requires consultation by the parents in relation to any relevant major long-term issue and requires genuine efforts to come to a joint decision.[7]
[7] Family Law Act 1975 (Cth) s.65DAC.
‘Major long-term issues’ is defined in s.4(1) as follows:
…issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s arrangements that make it significantly more difficult for the child to spend with a parent…
If the parties are incapable of making joint decisions, consulting and attempting to reach agreement in order to do so, it is unlikely to be in the best interests of the child to make an order for equal shared parental responsibility.
An order for sole responsibility in favour of a party means that the other party has no rights, responsibilities or authority in respect of major long-term issues for the children, save as expressly ordered.
I consider that this is a matter which involves such ‘a degree of mistrust, lack of communication, disrespect and dysfunction’[8] between the parents that it is in the best interests of the children for an order for sole parental responsibility to be made in favour of the mother. The father acknowledged to Ms B that ‘co-parenting is not something that this family can do.’
[8] Oscar & Traynor [2008] FamCAFC 158.
I do not agree with the submission of counsel for the father that the hostility was only coming from the mother. The father was very critical of the mother during his interview with Ms B and was preoccupied by his criticisms of her. Ms B was of the view that the father’s need to recount his version of events, issues of separation, issues about the need to prevail, ‘…form part of the foundations of the dysfunctional dynamic between the parties and are strongly predictive of their inability to reach mutually agreed decisions. The question of the children’s welfare becomes irrelevant or forgotten…’
I consider that there will be further conflict between the parents if they are required to consult with one another in respect of long-term decisions for the children. Their incapacity to reach agreement was highlighted by Ms B in respect of the debacle surrounding [X]’s ultimate change of school and non-payment of school fees deposit, standoffs about when school holidays should commence, and whether the father has an epi-pen.
However, I will make appropriate orders that require the mother to keep the father informed about the arrangements for the children.
Live with and Spend Time Arrangements
I consider that it is in the children’s best interests that they live with the mother, with whom they have a close and loving relationship. I consider that it is in their best interests to spend substantial and significant time with the father. This means the father will be involved in the children’s daily routines and occasions and events that are of particular significance to the children and to the father.
I am of the view that it is in the children’s best interests that they spend term time with the father in a block period, to reduce the number of changeovers, and to be less disruptive for the children.
I do not agree with Ms B that the number of nights they spend with the father should be reduced. The children enjoy their time with him. He has taken on board what [Y] told Ms B about not wanting to spend numerous nights away from him. However, I do not agree with his proposal that their time with him should increase to five nights per fortnight. I consider that four nights per fortnight with him will enable them to continue to have a meaningful relationship with him, and they will have the stability of a home base with the mother, whom I consider can better provide for their needs.
I consider that the children should spend one half of the school term holidays and Christmas school holidays with both parents. I do not consider that the Christmas school holiday time should occur on a week about basis, but should occur in one block period. This will enable each party to take the children on a holiday and will limit the contact between the parents.
I consider that the children should spend time with the father on the Greek Easter weekend, as proposed by him.
The children also should have telephone communication with the other parent at the times proposed by the father. I do not consider the communication should occur at any reasonable time, as proposed by the mother. This could interfere in the other parent’s time with the children and cause further conflict.
I prefer the mother’s proposals for time on birthdays, as the time proposed gives the children a more reasonable amount of time with the other parent than the father’s proposals.
I also consider that her Christmas Day proposals are in the best interests of the children and give the children time with both parents.
The changeover was not in dispute. Both parties sought an order for first option for the other to care for the children overnight. Both parties sought mutual non-denigration orders. Both parties sought notification orders about medical emergencies, change of address or other details. I will make such orders.
In respect of the travel and passport orders, I will order that the mother retain the passports, as she has the majority care of the children. I will make the other orders in respect of travel in accordance with her proposals.
I do not intend to make the order sought by the father to restrain the other from blocking the other parent from devices. The communication order requires the time to occur and I do not consider such an order necessary.
I consider that both parties should attend a post separation parenting program, so I will make an order about this.
I consider the orders that I intend to make are in the best interests of the children and will enable the children to have a meaningful relationship with both parents.
Property
Proposals
The father sought a division of the non-superannuation pool on the basis of a 55/45 per cent division in the mother’s favour. He sought an equal division of the superannuation pool.
The mother sought a division of the non-superannuation pool on the basis of an 80/20 per cent division in her favour. She sought an order that each party retain his or her superannuation entitlements. This means that the mother sought an amount equal to 79 per cent of the total superannuation.
Relevant Law
Section 79 of the Family Law Act 1975 (Cth) (‘the Act’) provides that the Court may make orders in property settlement proceedings to alter the interests of the parties to the marriage in the property.
Section 79(2) of the Act requires that any such order must be ‘just and equitable’. Section 79(4) provides the matters which are to be taken into account when considering what order should be made. This sub-section provides as follows:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The Court must satisfy the requirement of s.79(2) before it examines what order should be made pursuant to s.79(4).[9]
[9]Stanford & Stanford (2012) 247 CLR 108.
Consequently, in order to determine whether it is just and equitable to make an order, the existing legal and equitable interests of the parties in the property must be identified. Having determined that it is just and equitable to make an order, consideration will then be made about what order should be made assessing the factors in s.79(4).
The Parties’ Interests in Property
The father’s counsel tendered a list of property, liabilities and superannuation, some of which was agreed and some disputed.[10]
[10] Exhibit H1.
Property in Dispute
The mother asserted that the father is the owner of a Motor Vehicle 1 worth $26,600. She deposed in her affidavit filed 2 May 2018 that she has seen the car parked in his driveway at changeover. She has not received any documents evidencing payment for the vehicle, despite her requests.
During cross-examination, the mother agreed that the car is owned by the company, (omitted), of which Ms M is a director and shareholder. She reiterated that the father drives the car every day, he has it during school holidays and when he collects the children. She said that he posted on his Facebook page, ‘the Easter Bunny bought this. Guess what the Easter Bunny has bought me for Easter…Easter Bunny was generous to me,’ with a picture of the Motor Vehicle 1.[11]
[11] Affidavit of Ms M affirmed 2 May 2018, Annexure HA13.
In his affidavit sworn 3 May 2018, and in his oral evidence, the father did not respond to the mother’s evidence about the Motor Vehicle 1. He relied on an affidavit of his daughter, Ms M. In her affidavit, she deposed that she is the owner of the Motor Vehicle 1, which is registered under her company’s name, ‘(omitted)’. She occasionally lends the car to her father, as he does not have a car. Although counsel for the father informed the Court that Ms M would be attending the Court to give evidence, she did not attend.
Counsel for the mother submitted that an adverse inference should be made that her evidence would not have assisted the father. He did not give evidence to contradict the mother’s evidence. His daughter did not attend the Court to contradict the evidence. I agree that an inference should be made that the father is the beneficial owner of the Motor Vehicle 1. I will include it in the list of property.
The father asserted in his affidavit sworn 3 May 2018 that the mother’s Motor Vehicle 3 is valued at $14,000. He annexed to his affidavit a red book valuation indicating this value. The mother asserted in her affidavit sworn 2 May 2018 that it was worth E$3,000, but she provided no evidence of its value. In the joint list of assets the father reduced its value to $11,000. I will include it in the pool at $11,000.
The mother asserted that the father retained a wine collection. The father asserted that the parties divided it. There was no other evidence about this, and neither party attributed a value to it. I will not include it in the pool.
The mother estimated the value of her engagement ring at $10,000 and asserted that it is in the father’s possession. The father’s counsel submitted that the mother could have it. Part of the insurance funds received by the father were claimed for repair of the ring. He gave evidence that he took it to a jeweller to have it repaired. He did not produce any receipt for its repair.
The father deposed in his October 2017 affidavit that he owns a coin collection worth about $10,000. He believes that the mother removed it from the home when she vacated it in June 2016. During cross-examination, he gave evidence that the coin collection was contained in a green folder and had a value in excess of $10,000. He said:
… I kept them together, and towards the end I put the green folder in… a gym bag… Mr J’s collection was expensive as well and was probably worth more than $10,000… Mr J’s coin collection was in a big gym bag, and… towards the end, I hid it under the house and I put my green folder - which had plastic sleeves and I had the coins in. I had old coins. I had English sterling coins, and three coins were worth over $9,000, $10,000… The agreement was at the end that I would keep mine, and… Ms Panos would take Ms J’s, and when Ms Panos left on 11 June, she took both folders. She took the bag and the folder.
The mother did not give any evidence in answer to the father’s evidence that she retained his coin collection. She gave evidence only about Mr J’s coin collection. She deposed in her May 2018 affidavit that Mr J was given a coin collection by her father, and he retained the coin collection after separation.
I accept the father’s evidence that he had a coin collection and that the mother retained it after separation.
As the engagement ring and the coin collection are asserted to have the same value, each party can retain what he or she has, unless it is agreed that there be an exchange of the items. Neither party sought an order in respect of the return of the items. Both sought an order that each party retain what he or she has in his or her possession.
In respect of the father’s credit card debts, the mother did not dispute the amounts outstanding, or that the debts were incurred during the marriage. Her position was that, because the parties had separate finances, the father should be responsible for debts that he incurred during the marriage. She also asserted that because the father had previously taken the view that the Bartercard debt was a business debt, she should not be responsible for any of it.
The Bartercard account was originally in his personal name and he subsequently requested the transfer of the account into the business name.[12] The father gave evidence that most of the parties’ entertainment expenses were paid through the Bartercard, although the business used it also. A statement dated 31 October 2015 includes personal household expenses.[13] In September 2016, the father personally paid the Bartercard debt, notwithstanding he regarded it as a debt of the company.[14]
[12] Exhibit W3.
[13] Exhibit H4.
[14] Exhibit H3.
The father has also paid a Bank 5 liability of $15,000 with a loan from his brother. As at May 2016 there was $24,708 outstanding.[15] The July and November 2010 statements includes overseas holiday expenses.[16]
[15] Ibid.
[16] Exhibit H17.
The mother had the benefit of the parties’ lavish lifestyle and numerous holidays. In 2006 they went on a six week trip to (country omitted). In 2010 they went to (country omitted). In 2012 they went to (countries omitted) and they also went on trips to Sydney. The trip to (country omitted) in 2010, for example, cost $10,000 for airfares and accommodation. They went out to restaurants regularly, around four times per week, and they had a busy social life. I consider that the liabilities incurred by the father during the marriage should be shared. The father has Bank 1 Visa and Bank 3 Visa debts incurred during the marriage. The mother has a current Bank 1 Visa debt.
I will include the liabilities in the pool, in the amounts agreed outstanding.
I find the property and superannuation is as follows:
Property
Proceeds of sale of the Property D property (joint) $270,000
Property A
(‘the Property A Property’) (father) $540,000
Property C
(‘the Property C property’) (mother) $950,000
The Property B property (mother) $865,000
Motor Vehicle 2 (mother) $25,600
Motor Vehicle 3 (mother) $11,000
Motor Vehicle 1 (father) $26,600
Total property $2,688,200
Mortgage - the Property A
property (father) $297,000
Mortgage - the Property C
property (mother) $275,892
Mortgage - the Property B
property (mother) $94,423
Motor Vehicle 2 finance (mother) $32,638
Mother’s credit card liabilities (mother) $9,080
Father’s credit card liabilities (father) $19,731
Total Liabilities $728,764
Total net property $1,959,436
Agreed Superannuation
Super Fund L (father) $38,848
Super Fund K (mother) $146,193
Total Superannuation $185,041
Is it just and equitable to make a property order?
I consider it is just and equitable that a property adjustment order be made. The parties’ relationship was of 10 year’s duration. They have accumulated property together. They need to finalise their financial relationship.
Approach to be taken
In property proceedings, the Court may make such order as it considers appropriate. The usual approach is for the Court to consider the property of the parties as an overall pool. However, it is also open to the Court to consider the assets of the parties on an asset-by-asset approach. In Norbis v Norbis,[17] Mason and Deane JJ, with whom Brennan J agreed, said:
…Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient.[18]
[17] (1986) FLC ¶91-712.
[18] Ibid 75,168.
Generally, the asset by asset approach has been adopted by the courts in those cases where the marriage is of a short duration, or where the parties have strictly separated their assets.[19]
[19] McMahon & McMahon (1995) FLC ¶92-606.
In respect of superannuation, there was no agreement about the approach. The father adopted a two pool approach. He is seeking a splitting order in respect of the mother’s superannuation entitlement. The mother’s position was that the superannuation should be included in one pool and each party retain his or her entitlement.
There was no evidence that the mother’s superannuation is property within the definition of s.4 of the Act. A superannuation split is being sought by the father. I am of the view that it is appropriate for the superannuation to be included in a separate pool.
Insurance proceeds
The father made a claim to (Insurance Company) and received into his Bank 3 bank account the sum of $16,878 on 25 May 2016. He also received from (Insurance Company) the sum of $9,920 on the same day, for damage to the mother’s engagement ring and watch.
The father gave evidence that he used the insurance proceeds by giving the mother $3,000. He paid for the cost of repairs to Property D. He also paid the cost of removing garbage and painting Property A. He paid for truck hire, car repair, clothes for the children, appliances and a washing machine.
He said that the mother left the home at Property D on 11 June 2016 and he left the home on 11 July 2016. He was left to clean up. I accept his evidence that he and the mother agreed about how the funds were to be used.
A further payment was made to the father on 4 August 2016 in respect of his car accident which occurred in June 2016. He said that the sum of $28,649.25 received by him reflected the net proceeds after the car finance payment was made to (Finance Company). He said that the funds were applied to day-to-day expenses, but did not give any details.
I will take into account that the father had the use of the amount of $28,649.25 for his own benefit under s.75(2)(o).
Partial property settlement
On 4 July 2016, the parties sold the former matrimonial home. On 11 October 2016, a consent order was made that provided for each party to receive the sum of $50,000 by way of partial property settlement. On 1 February 2017, a consent order was made that the father receive $13,000 by way of partial property settlement. On 21 June 2017, a consent order was made that he receive $25,000 by way of partial property settlement. On 19 March 2018, a consent order was made that he receive $25,000 by way of partial property settlement. All the funds came from the sale proceeds of the former matrimonial home.
The father therefore received a total sum of $113,000 and the mother received the sum of $50,000.
In the decision of Eldred & Eldred,[20] Bennett J discussed distributions to the parties, which were referred to as ‘monies received as part property settlement’ or ‘by way of interim property.’ Justice Bennett disagreed with the mother’s case that monies which no longer exist can be treated as notional property or property for the purpose of s.79 of the Act. Justice Bennett said:
the reasoning in Bevan indicates that interim payments which no longer exist ought to be taken into account pursuant to s75(2)(o) rather than notionally added back into the property to be divided between the parties…[21]
[20] [2015] FamCA 61.
[21] Ibid [308].
In Bevan & Bevan,[22] the Full Court discussed the practice of courts making ‘notional add-backs’ to property to account for the unilateral disposal of assets. At paragraph 79 Bryant CJ and Thackeray J stated:
we observe that “notional property” which is sometimes added back to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them” and thus is not amenable to alteration under s.79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage-and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s.79(4) and in particular s.75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
[22] (2013) FLC ¶93-545.
Justice Finn stated that it may well be that the current practice in respect of the treatment of property which no longer exists but which one party has had the use of (the so called ‘add-backs’) and perhaps also the unsecured liabilities should more strictly be considered in making findings under s.79(4)(e) (i.e s.75(2)).[23]
[23] Ibid [160].
In other single instance decisions of the Family Court, the Court considered that the preferred mechanism for dealing with add-backs is under s.90SF(r) or s.75(2)(o) in respect of married parties.[24]
[24] See Watson & Ling (2013) FLC ¶93-527 and Bangi & Belov [2014] FamCA 8.
In Bateman & Bowe,[25] Murphy J noted that add-backs are ‘the exception rather than the rule’,[26] and existing legal and equitable interests in property should be valued at the date of trial save in ‘exceptional circumstances.’[27]
[25] [2013] FamCA 253.
[26] Ibid [50].
[27] Ibid [35].
Following the approach of the Full Court, proper consideration must be given to existing interests in property when exercising the discretion to ‘add-back’ property.
It was conceded by the mother by her counsel in closing that the father has expended all the funds received by him. There was no dispute that the mother has expended the funds she has received. She spent $30,000 on legal costs and $20,000 towards improvements on the Property C property.
From the 1 February 2017 distribution, the father used $8,000 to pay a tax debt and legal costs of $1,500. He spent $5,401 on rates, water and corporate body fees in respect of the Property A property.[28] The father paid a Bartercard debt of $20,981.80 from the 21 June 2017 distribution. These sums total $35,882. He deposed that of the $113,000 received by him, the majority has been applied to the debts described.
[28] Affidavit of Mr Adrianos sworn 3 May 2018 [12].
The father has had lawyers throughout these proceedings. Counsel appeared during the hearing on his behalf. I infer that he has also had considerable legal costs to pay.
I do not consider that there are exceptional circumstances for property which no longer exists to be added back.
I do not intend to take into account the receipt of the funds of $50,000 by both parties.
However, the father has received funds of $63,000 more than the mother by way of partial property settlement. Although he said that he used the funds for day to day living expenses, he gave no details about what he spent them on. He did not pay the Suburb M school fees for [X] of $13,000. There was no credible explanation given by the father about this expenditure. I intend to take into account that he had the use of these funds for his own benefit under s.75(2)(o) of the Act.
Contributions
I have found that cohabitation commenced in 2006.
At the commencement of cohabitation, the father owned a business called Business 1. He had two stores at that time, Suburb N and Suburb R. The store at Suburb P started in early 2006. The business did well financially until around 2008, when (Company) changed its policy to eliminate trailing commissions. The business started to decline in 2008 and was not viable by the end of 2014. The company was wound up in October 2015. The father also worked in his Business 2, and from 2014 this was his main source of income.
At cohabitation, the father also owned the Property A property and a property at Property E. The Property E property was sold in 2007 for approximately $640,000. The proceeds of sale were used to pay the liabilities of the company. I do not attach any weight to the contribution of this property.
Between 2006 and 2009, the parties lived at the father’s Property A property. He paid for household and living expenses and mortgage loan repayments. He deposed that, during this period, the mother lost her job with (employer) and was pregnant with [X]. He purchased home entertainment equipment to the value of $30,000 during this time.
At the commencement of the relationship, the mortgage secured on the Property A property was $150,000. It was increased by the father to assist the purchase of the Property D property. The property was rented when the parties were not living there.
The parties purchased the Property D property in 2009. The mother withdrew $65,800 from the loan secured against the Property C property for the deposit, and took out a $600,000 loan for the purchase. The father repaid the mother for his half of the deposit, and they agreed to pay an equal share of the mortgage repayments. They took turns in paying the bills for the Property D property.
In 2014, the father again refinanced the mortgage on the Property A property from $202,983 to $300,000. The sum of $77,828 was paid into his Bank 1 account. On 24 December 2014, he withdrew $47,291.05. On 8 October 2015, he withdrew $16,000. He said that he used the funds for living expenses, including mortgage payments, which were around $4,000 per month.
At that time he said that money was very tight and the business was not going well. He could not explain why such a sum as $47,291.05 was withdrawn. The mother deposed that it was possible the funds may have been applied to service mortgage repayments.
I consider that it is possible that the funds were used for mortgage payments and living expenses, although the sum of $47,291.05 is an unusual sum to withdraw. I am unable to make a finding about this.
There was no evidence to persuade me that the father used mortgage funds to purchase other properties, other than the Property D property.
The father still owns the Property A property and lives in it. It currently has equity of $243,000.
At the commencement of cohabitation, the mother owned the Property B property. There was a minimal mortgage secured on the property at this time. She subsequently increased the mortgage to pay for various expenses. The property was rented during the marriage. The father claimed that from their savings, he and the mother paid for expenses for it. He further claimed that he paid for repairs and council rates. The mother still owns this property. It currently has equity of $770,577.
The mother purchased the Property C property at the commencement of cohabitation. The father assisted her by paying the deposit, which was later repaid to him. The father’s counsel extensively cross-examined the mother about the purchase of this property and the extent of the father’s contributions to it.
The father asserted that this was a joint purchase and that he contributed to the deposit. He asserted that the property was in the mother’s sole name to minimise potential risks associated with his company. He said they did the same thing with the matrimonial home. The mother denied that the father contributed to this property. She deposed that she paid a deposit of $33,000 and paid the remaining amount owed plus stamp duty, by way of a bank loan. She said, ‘there are no deposits made by Mr Adrianos prior to settlement in my bank statements…’
During cross-examination of the mother, the evidence demonstrated that the father arranged for a cheque of $33,300 to be paid by Business 1 for the deposit on the Property C property.[29] The mother also received from the father deposits of $30,000 and $21,500 on 28 April 2006 (a total of $84,800). The mother gave evidence that she repaid the father these monies. She denied that there were further deposits made by him to her. The father did not have bank statements to persuade me that further amounts were provided by him to the mother.
[29] Exhibit W4.
The father’s Bank 3 bank statements demonstrate that the mother deposited $58,800 into his account between 6 June 2006 and 11 August 2006.[30] The amounts she repaid the father are shown on his Bank 3 statements as ‘deposit Ms Panos.’ The mother said that she repaid a further sum of $6,000 on 25 May 2006, but did not have the bank statements to prove this. She also claimed that she repaid $10,000 on 4 August 2006 and $10,000 on 18 September 2006. There is no deposit on the father’s Bank 3 statement on 4 August 2006. I am not persuaded that she paid him the sum of $10,000 on this day, or that she paid him the sum of $6,000 on 25 May 2006. The sum of $10,000 repaid to him by her on 18 September 2006 was conceded by the father. I am persuaded that the mother repaid him the total sum of $68,800. He therefore contributed some funds to the Property C property. He also assisted the mother with a deposit at a time when she did not have sufficient funds to provide the deposit.
[30] Exhibit H15.
The Property C property was leased to tenants during the marriage. The rental income was used towards the mortgage secured on the property. The mother still owns this property and lives there with the children. Currently it has equity of $675,000.
During the relationship, the father contributed his income to the benefit of the family from his Business 2 as a (occupation omitted). Prior to 2008 he was earning approximately $350,000 per annum. In 2008, due to a change in (company) policies, ‘there was a significant down turn in earnings’.
He also contributed his income from his Business 2 as a (business omitted), which was his main source of income from 2014 until his accident in 2016, when his capacity to work frequently was reduced. He commenced receiving weekly payments from TAC in June 2016.
An examination of the financial statements of the Adrianos Family Trust indicates drawings made by the father of a total sum of around $246,000 over the 2011, 2012 and 2013 financial years.
His income reduced between 2013 and 2016. The mother’s counsel tendered the father’s income tax assessments only. His taxable income was $2,289 for the 2013/2014 financial year; $0 for the 2014/2015 financial year; and $9,330 for the 2015/2016 financial year. On 7 October 2015 his business, Business 1, was ordered to be wound up.
The father’s parents gave him money during the relationship. He deposed that they gave him $3,500 in January 2016, $9,000 in 2014, and $10,000 after [Y] was born. I do not accept his oral evidence that his father gave him further large cash sums over the dinner table.
During the relationship, the mother was employed in various full-time positions and earned approximately $70,000 to $80,000 annually. She contributed her income to the benefit of the family.
Both parties contributed towards the mortgage payments and expenses on the Property D property during the relationship. The mother contributed more during 2015, due to the father’s income reduction.
The mother gave evidence that they ‘rotated’ all the bills. For example, the father paid for dinner out and she paid the water bill. The father agreed they took it in turns to pay the utility bills. He said that they shared the cost of food and their entertainment was paid by Bartercard.
The mother paid for [X] and [Y]’s childcare fees. She said there was an agreement that she would pay [Y]’s childcare fees and the father would pay for [X]’s schooling at Suburb M School. The father got behind with the school fees. On 19 July 2016, the mother received a letter from Suburb M School notifying that the fees were in arrears of $13,874.
I consider that the mother was the primary carer and homemaker during the relationship. She contributed to the care of the father’s daughter, Ms M, and took her to (sports), bought clothes for her, and took her shopping and to beauty appointments. Since 2013, and especially since the business ended in 2015, the father has been more involved with the care of the children.
The parties separated on 24 April 2016. The mother vacated the matrimonial home with the children and moved in with the maternal grandparents. They moved into the Property C property in mid-June 2016.
Since separation, the mother has contributed by being the primary carer of the children, with minimal child support paid to her by the father. She has had the main financial burden of supporting the children. The father did not pay child support until early 2018, although he could afford to go out to restaurants and bars regularly. For example, he agreed that during May 2017, he went out on at least 12 occasions.
Since separation the father has contributed by paying the Bank 5 credit card debt, from a loan from his brother.
In respect of the parties’ initial contributions, the way they are to be treated was considered in the decision of the Full Court in Pierce & Pierce,[31] in which the Full Court said:
In our opinion, it is not so much an erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the father and the mother. In considering the weight to be attached to the initial contribution, in this case of the father, regard must be had to use made by the parties of that contribution. In the present case that use was a substantial contribution of the purchase of the matrimonial home.[32]
[31] (1999) FLC ¶92-844.
[32] Ibid [28].
In Williams & Williams,[33] the Full Court stated:
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus, where the pool of assets available for distribution between the parties consists of say an investment portfolio of a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so, it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.[34]
[33] [2007] FamCA 313.
[34] Ibid [26].
The Full Court referred to another Full Court decision of Hunt & Zuryn,[35] in which the court, in allowing an appeal in a property case where a pool of assets of $1.12 million had been assessed for contribution purposes as 75% in favour of the father and 25% in favour of the mother, stated:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the father at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.[36]
[35] (2005) FLC ¶93-226.
[36] Ibid 79,730.
The weight to be attributed to initial contributions and other contributions is not required to be a mathematical or a counting exercise. In Clives & Clives,[37] the Full Court said:
We accept that the task to be undertaken by a trial judge in assessing weight to be attached to initial contributions, and other contributions, is not always an easy one and not discharged by a strict accounting exercise…[38]
[37] [2008] FamCAFC 172.
[38] Ibid [44].
I attach weight to the mother’s initial contribution of the Property B property. It had a minimal mortgage secured on it at cohabitation. The mother increased the mortgage to assist with expenses. The Property B property has increased in value.
I attach weight to the father’s initial contribution of the Property A property. The parties lived in it before they purchased the Property D property. The father used the property to assist in the purchase of the Property D property, by increasing the mortgage. He has subsequently increased the mortgage. The property has increased in value.
I attach weight to the mother’s initial contribution of the Property C property, and take into account that the father made some contribution to the acquisition of the property. The mother increased the mortgage to assist with the purchase of the Property D property. The mother and the children live in the property. It has increased in value.
The initial contributions must be considered in the context of a 10 year relationship with two children, and two years post-separation, and the parties’ subsequent contributions.
Having regard to all the contributions of the parties, I am of the view that contributions favour the mother on the basis of 60 per cent and 40 per cent in favour of the father.
Section 79(4)(e)
The father is 53 years old. He is in receipt of TAC payments of $879 per week. He gave evidence that the payments continue for 18 months, but his payments have been extended.
The father lives in the Property A property, so he does not receive income from it.
The father deposed that he has been unable to return to work in the (employment omitted) industry as a result of injuries sustained in the car accident. He gave evidence that he has been looking for formal employment, without success. He has been looking for work in the area of (employment omitted).
I am of the view that he has continued to receive some income from his Business 2 business. I consider that he has the capacity to earn income from this pursuit in the future. I do not accept his evidence that the funds he received in his bank account for 10-12 functions were forwarded to (industries omitted), and also do not accept that he has not done the work. Nevertheless, I consider that the mother has a much greater income than him.
The mother is 49 years old. She is employed as a (occupation omitted) and earns an income of around $1,543 per week. She receives rent from her Property B property of $245 per week. She does not need to re-house the children, as they live in the Property C property.
The mother will have the children in her care for 10 nights per fortnight. She has the main responsibility for their maintenance. She receives minimal child support from the father of $58 per month.
The parties have the expenses set out in their financial statements. The father has borrowed funds for living expenses. He has borrowed $20,000 from his father in November 2016 and $27,200 in April 2017. These sums have not been repaid. His brother also lent him $20,000 in November 2016, which was used to pay off a Bank 5 debt.
The father received $63,000 more than the mother by way of partial property settlement. He also received the benefit of insurance funds of $28,649.25 for his own benefit. The funds have been expended. Although he said that he used the funds for day-to-day living expenses, he gave no details about what he spent them on. I am not persuaded that he has expended the funds reasonably. In these circumstances, I intend to take into account that the father has had the benefit and use of the funds as a factor under s.75(2)(o).
As a result of contributions, the father will receive property to the value of $783,774 and the mother will receive property to the value of $1,175,662. There is a large disparity of property between the parties.
I consider that balancing the above factors, there should be an adjustment in the mother’s favour of 8 per cent. This will result in the father receiving property to a total value of $627,020 and the mother will receive property to a total value of $1,332,416.
Superannuation
There was little evidence about the parties’ superannuation.
The father deposed that he had superannuation of $37,000 as at September 2016. The superannuation at 1 December 2017 was $38,848. There is no other evidence about his superannuation. The mother made indirect contributions to the father’s superannuation by contributing towards family expenses and mortgage payments. She has made an indirect contribution to its small increase after separation by maintaining the children.
The mother deposed that, at the commencement of cohabitation, she had superannuation of approximately $42,177. At separation she had the sum of $126,000, so it increased during the relationship by around $83,828. At 31 December 2017, she had the sum of $146,193.
In her financial statement sworn 2 May 2018, she deposed that she contributes E$138 per week to the fund. I therefore do not agree with her counsel’s submission that most of the superannuation relates to her pre-marital superannuation. She must have been contributing towards the superannuation during the relationship and post separation for it to have reached its current value.
The father did not make any direct contribution to the mother’s superannuation. He made some indirect contributions during the marriage by earning an income and contributing towards family expenses and mortgage payments. He did not make any contributions since separation.
I do not consider the mother’s proposal, that each party retain his or her own superannuation. is just and equitable. The mother’s superannuation has increased in value during the relationship.
I also do not consider that the father’s proposal, to split the mother’s superannuation to result in an equal amount for each party, is just and equitable.
In my view, doing the best I can on the limited evidence from both parties, I consider that the contributions favour the mother 75/25 per cent.
In respect of section 79(4)(e), the mother has a better capacity to increase her superannuation having regard to her regular employment, higher income and younger age.
As a result of contributions, the father will receive superannuation to a value of $46,260 and the mother will receive superannuation to a value of $138,780. There is a large disparity.
I consider that, balancing the above factors, there should be an adjustment in the father’s favour of 10% so that the superannuation is divided on a 65/35 per cent basis in favour of the mother. This will result in a split of the mother’s superannuation of $25,916.
The father will retain the following property:
The Property A property $540,000
Motor Vehicle 1 $26,600
Total Assets $566,600
Mortgage - the
Property A property $297,000
Credit card liabilities $19,731
Total Liabilities $316,731
Net Total $249,869
Plus the Property D property proceeds $270,000
Plus Cash payment from mother $107,151
Total retained by father $627,020
The mother will retain the following:
The Property C Property $950,000
The Property B Property $865,000
Motor Vehicle 2 $25,600
Motor Vehicle 3 $11,000
Total Assets $1,851,600
Mortgage – the
Property C property $275,892
Mortgage – the
Property B Property $94,423
Motor Vehicle 1 Finance $32,638
Credit card liabilities $9,080
Total Liabilities $412,033
Net Total $1,439,567
Less Cash payment by
mother to father $107,151Total retained by mother $1,332,416
The father will receive superannuation to a total of $64,764. The mother will retain superannuation of $120,277.
The parties will receive property and superannuation. I consider this is a just and equitable division.
I certify that the preceding two hundred and forty-five (245) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 21 August 2018
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