Asquith & Asquith
[2021] FedCFamC2F 506
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Asquith & Asquith [2021] FedCFamC2F 506
File number(s): DGC 1052 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 10 December 2021 Catchwords: FAMILY LAW – PARENTING – dispute about best interests of children aged 12 and 9 – mother seeking nine/five arrangement in her favour and father seeking equal time – children possibly influenced by mother but nonetheless expressing satisfaction with current nine/five regime – family report recommending nine/five – orders made as sought by the mother.
PROPERTY – significant disputes about various cars – whether father disposing of valuable car at an undervalue – both parties seeking to manipulate aspects of the dispute to maximise their outcome – Court assessing contribution 52.5 to 47.5 per cent in favour of father as a result of greater initial contribution to the matrimonial home – future needs assessed 15 per cent in the favour of the mother – overall resolution 62.5 to 37.5 per cent in favour of the mother just and equitable
Legislation: Family Law Act 1975 (Cth) Cases cited: Chang and Su [2002] FamCA 156
Goode v Goode [2006] FamCA 1346
Jones v Dunkel [1959] HCA 8
Kennon & Kennon (1997) FLC 92-757
Kowaliw & Kowaliw (1981) FLC 91-092
Pierce v Pierce [1999] FLC 92-844
Walters & Walters [2007] FamCA 324
Division: Division 2 Family Law Number of paragraphs: 125 Date of last submission/s: 22 October 2021 Date of hearing: 21 & 22 October 2021 Place: Dandenong Counsel for the Applicant: Mr Moisidis Solicitor for the Applicant: Waters Lawyers Advocate for the Respondent: Mr Ng Solicitor for the Respondent: Pentana Stanton Lawyers ORDERS
DGC 1052 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ASQUITH
Applicant
AND: MR ASQUITH
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
10 DECEMBER 2021
THE COURT ORDERS THAT:
Property
1.Within 60 days of this Order, the husband pay to the wife the sum of $237,045 (“the payment”).
2.Contemporaneously with the payment the wife do all things necessary to transfer to the husband all of her right, title and interest in the property situate at B Street, Suburb C in the State of Victoria (“the real property”).
3.In the event the whole of the payment has not been made by the due date then the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of sale be applied:
(a)Firstly to pay all costs, commissions and expenses of the sale;
(b)Secondly so much of the payment as it then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the due date to the wife;
(c)Subject to (d) below, thirdly the balance to the husband;
(d)In the event that the real property is not sold for a net figure of $600,000, the wife is to receive 62.5 per cent of the amount over $600,000, or 62.5 per cent less of the amount by which the net sale proceeds are under $600,000, as the case may be.
4.Pending the payment or completion of the sale:
(a)The husband have sole right to occupy the real property and that during such right of occupation the husband pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party save for the husband applying for finance over the real property to facilitate the payment.
5.Unless otherwise specified in these orders and save for the purpose of enforcing monies due under these 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)Monies standing to the credit of the parties in any joint bank account are to be split equally between the parties;
(c)Each party hereby forgo any claim they may have to any superannuation benefits or other employment related benefits belonging to or earning by the other;
(d)Insurance policies remain the sole property of the life assures names therein;
(e)Each party be solely liable for and indemnify the other against liability;
(f)Encumbering any item of property to which that party is entitled pursuant to these orders any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
6.In the event that the husband or the wife refuses or neglects to execute a deed and/or instrument in compliance with the provisions of paragraphs of this Order, the Registrar of the Federal Circuit and Family Court of Australia at the Melbourne or Dandenong Registry is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all deeds and/or instruments in the name of the husband or the wife and do all acts and things to give validity and operation to the deeds and/or instruments.
7.The parties otherwise retain all assets and liabilities currently in their possession or control.
8.The parties have liberty to apply in respect of implementation of these Orders.
Parenting
9.The children, X born in 2010 (X) and Y born in 2012 (Y) (“the children”) live with the wife.
10.The children spend time with the husband as follows:
(a)Each alternate weekend from 6:30 pm Friday until commencement of school Monday;
(b)Each Wednesday from 6:00 pm until commencement of school Thursday: and
(c)Such further and other times as agreed between the parties in writing (including text messages).
11.The children spend additional time with the husband as follows:
(a)For one half of all school term holidays that fall during the academic year by agreement and in default of agreement, the second half;
(b)for the Christmas celebratory period:
(i)from 3.00 pm Christmas Eve 2021 until 3.00 pm Christmas Day in 2021 each odd numbered year thereafter;
(ii)from 3.00 pm Christmas Day 2022 until 3.00pm Boxing Day in 2022 and each even numbered year thereafter;
(c)for the long summer holiday period:
(i)for a week about periods consisting of seven consecutive nights, with the father to have the second week and each alternating week thereafter, unless otherwise agreed;
(d)on Father's Day (in the event the children are not in the father's care) from 10.00 am until 6.00 pm on Father's Day:
12.In the event that Mother's Day falls during a period of the father's time pursuant to these Orders, the children be in the care of the mother from 10.00 am until 6.00 pm on Mother's Day.
13.The parties immediately inform each other of any serious injury or illness sustained by the children or either of them while in that party's care.
14.The parties forthwith do all acts and things and sign all documents necessary to ensure that:
(a)both parties are listed on the children's school enrolment forms and other requisite documents and that both parties be listed as an emergency contact with the children's school facility and/or extracurricular activities:
(b)authorise the children's school to provide to both parties' copies of all notices, newsletters and reports as well as enrolment forms as may be provided by the school from time to time;
15.Each of the parties be at liberty to:
(a)attend all sport and extracurricular activities that the children or either of them attend, including extracurricular activities held at or by the school;
(b)attend all school events that parents are usually invited to attend;
(c)obtaining from the children’s school facility all information, newsletters, school photographs, reports and like correspondence usually provided to parents (at each party's own expense) including access to the school intranet system.
16.The parties separately enrol and attend a Parenting Order Program to assist in building skills to reduce conflict and support the co-parenting relationship, at D Families.
17.The parties by themselves and by their servants and agents, be and hereby restrained from:
(a)denigrating the other party, their friends or family to or in the presence or hearing of the children or allowing any other person to do so;
(b)discussing these proceedings with or in the hearing or presence of the children or allowing any other person to do so; and
(c)showing the children any Court document or other document relating to these proceedings or allowing any other person to do so.
18.The parties attend the Court ordered Parenting Orders Program.
19.Both parties attend a parenting program such as Tuning in to Kids to enhance parenting responses and insights.
SCHEDULE
Matrimonial home $600,000 (less mortgage $230,000) $370,000 Motor Vehicle 1 $20,000 Wife’s car $9,000 Motor Vehicle 2 $250 Wife’s superannuation $31,274 Husband’s superannuation $13,587 Total $444,111 Wife’s 62.5% $277,569 Less car $9,000 Less bus $250 Less superannuation $31,274 Total $237, 045
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Asquith & Asquith has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTION
This is a property and parenting dispute. So far as parenting is concerned, the applicant wife seeks that the two children, X born in 2010, and Y born in 2012, live in a nine/five arrangement in her favour as recommended by the Family Report. The father seeks equal time. For the reasons that follow, I will make the orders sought by the mother.
So far as property is concerned, the pool is not enormous. The former matrimonial home has an agreed value of $600,000 with a mortgage of about $233,000. The wife seeks to pay the husband $50,000 and that he retain various cars to a total of about $100,000 with an equalisation of what is a small amount of superannuation. The husband, conversely, seeks to pay the wife out $150,000.
Both these parties have sought to manipulate what should be included in the pool with a view to obtaining the maximum possible gain for themselves. In my opinion, there should be a division 62.5/37.5 in the wife’s favour, but I have excluded a number of the matters she has sought to have included within the pool.
AGREED UNCONTROVERSIAL MATTERS
The wife was born in 1981 and the husband in 1981. They commenced a relationship in 1999 when they were both very young and appear to have commenced formal cohabitation in about 2006. They were plainly seeing a lot of one another before then. They were married in 2008 and the children followed as earlier indicated. The parties separated on 8 March 2018. There have been three intervention orders taken out in the mother’s favour against the father in 2014, 2017 and December 2018. The father denies any wrongdoing.
The parties had little when they started and there is a dispute as to their initial contributions. The husband says he put in approximately $47,000 in total towards the land and the building of the former matrimonial home. It seems that the land was bought in 2004 and the build was complete, it would appear, towards the end of 2005. The wife by way of contradistinction says she provided all the furnishing and the like from her own savings likewise built up in the years prior to moving in.
During the relationship the husband worked as a tradesman and the wife worked as a beauty therapist, occupations which, subject to COVID, they propose to continue.
The children have lived most recently in a nine/five arrangement with the mother and, as earlier indicated, that has been recommended by the Family Report.
THE PARTIES’ AFFIDAVITS
Most of what the parties say in their affidavits is covered, at least to an extent, by the agreed matters above. The mother’s affidavits go into considerable detail about the events that gave rise to the intervention orders. In both the 2014 and 2017 intervention orders the wife says that her salon mirror and chairs were thrown out onto the front garden. The December 2018 incident involved the husband cutting her vehicle off on the highway, and him assaulting her to a point where a passer-by called the police. The wife has deposed to concerns about the father’s alcohol consumption and has much to say about the various vehicles either in his possession and/or disposed of, to which it will be necessary to return. The wife’s more recent affidavit material suggests that the communication between the parties has improved and that they are now able to communicate about the children via text. She complains of the children being returned home dirty. The wife presently works 3.5 days per week and will earn about $32,000 this year.
The wife has also filed an affidavit by Mr E who has given a value for a so-called Motor Vehicle 1 to which, once again, it will be necessary to return. The husband has deposed in his affidavit 20 October 2021 to having sold the Motor Vehicle 1 for $1,000 in March 2020. He has deposed that his income in the financial year 2020 was $49,359. He has also deposed to concerns about the mother having a relationship with a Mr F, whom he has asserted is a bad character.
THE FAMILY REPORT
Ms G’s Family Report was tendered as exhibit T1. It is sufficient for these purposes to quote paragraphs 47 and 48 which read:
47.It appears that Y and X have been exposed to parental and family conflict over a substantial period of their lives. It further appears that they continue to be exposed to adult views and criticisms with some comments made by the children mirroring parental concerns and preferences. It is of added concern that the children have been witness to conflict between their mother and maternal grandmother this further causing them distress. The parties continue to demonstrate limited insight into the full impact of this situation upon the children. Whilst parental love for Y and X is acknowledged, both parties impress as set in their views towards each other, quick to resort to verbal arguments when frustrated in the area of parental co-operation and communication. It is important that both parties reflect upon assessments and recommendations made by Family Consultants and formal orders in order to improve parental responses, understanding and co-operation.
48.On balance, it is considered to be in the best interests of Y and X to maintain their parenting relationships this reflecting primary maternal care and regular and planned time in paternal care. It is considered that the current parenting arrangements provide this opportunity. The paternal proposal to substantially change the children's living arrangements is not supported and likely to result in the children becoming unsettled. The children's expressed views and preferences are formally acknowledged. Both parties are encouraged not to continue to expose the children to adult issues, frustrations or conflict, this constituting emotional harm and clearly not in the best interests of Y and X.
The report went on to recommend equal shared parental responsibility, the continuation of the present arrangements as earlier described, and a number of ancillary orders including the parents attending the Parenting Orders Program and the Tuning in to Kids Parenting Program.
SUBMISSIONS MADE AND EVIDENCE GIVEN AT THE COURT
The matters recorded below are taken from my notes. They are not, obviously, a transcript, but record matters I found significant. I understand there are those who find such recitations unhelpful, but not only am I too old (retirement in less than 6 months), to be fashioning a new methodology, but it helps me significantly in fashioning my conclusions and giving parties the timely judgments they desire.
The Opening Evidence of the Mother
Counsel indicated the mother adopted the Family Report and wished to keep the status quo of nine/five. Counsel traversed concerns of the father’s binge drinking and the possibility of environmental neglect. The children returned dirty and smelly. There are poor communications and the father does not support the relationship with the mother.
The property pool is not great. The non-superannuation amounts to $450,000. The parties had little at the start of the relationship and the mother worked full-time until the children came, who are now eleven and nine. The mother’s income helped, but then she was the primary carer. Contributions should be assessed as equal during the marriage. So far as future needs were concerned, it was a small pool and the mother is still the primary carer of the children. The father’s tax returns show an income of $56,000 per annum as a tradesman. The mother works part-time for three and half days a week earning $32,000 per annum. The mother seeks 70 per cent of the pool, being $319,000 to her and $136,000 to the husband. The husband had sold the Motor Vehicle 1 for $1,000 when it could have been sold for $40,000. It was worth $10,000-$20,000 even in poor condition. The car revealed in the photographs was $40,000. A Motor Vehicle 3 worth $45,000 had been sold and the Motor Vehicle 1 should be taken at a value of $20,000. The lease on the Motor Vehicle 3 might have been worth $13,000. There is a Motor Vehicle 4, a boat and a jet ski at the home which the husband says are his parents’. The total add-back should be about $100,000.
The wife was called and adopted her affidavits and financial statement as true and correct. By leave, she gave evidence responding to the husband’s recently filed trial affidavit. The mother confirmed that following separation, she had moved to her own mother’s home, but she said the father only spent time with the children there on a couple of occasions. She said the husband did not know how much she paid for utilities, groceries. Gas, electricity and water bills were in her name. She said that the husband had thrown her mirror and chair from the salon onto the front garden and smashed them. She said that he binge drinks but not every day. She was adamant that when she picks the children up, they are filthy and smell, also, they tell her they do not shower for three days.
The mother responded to the father’s assertion at paragraph 38 that she tried to commit suicide. She said not so. She was under a lot of pressure and walked along the train tracks. She had not thrown herself under a train. This was in 2018. She was taken to hospital and dismissed after two hours. She saw a psychiatrist five times but has not done so since 2018.
She was asked about the Motor Vehicle 1. She said the car was not rusted or otherwise deficient. She had seen the photographs annexed to Mr E’s affidavit. She said they had driven it. Following some discussion, it emerged that she was prepared to take the Motor Vehicle 2 bus for $250 which resolved that aspect of the controversy.
The mother confirmed that they had a boat and jet ski. She was not aware they were registered to the father’s parents. They had a discussion when the boat was bought in Queensland. It was paid from his account. It has been in their backyard ever since. The husband pays the rego and insurance on the boat. His parents have never driven it and do not have a boat licence. They have only used it a handful of times with them. The husband bought the jet ski.
Counsel asked about the husband’s assertions as to expenditures on the property, including $11,500 for renovations. The wife conceded this, but said she bought all the furnishings. He saved up, but she saved up. They bought the property in 2006. They had been in a relationship from when they were 17. She had a glory box and saved for sheets and everything that goes into a house from 1999. She bought all the essentials for a home. She denied that the husband ever cooked, other than barbecuing. She did the cleaning. She conceded the parental grandmother helped with the children when the children were born. She was also asked about a car which she said she bought after separation and it blew up. The engine failed and she sold it for $1,000.
The Wife under Cross-Examination
The wife denied that after separation the husband had had alternate weekends and Wednesdays. The eldest son did want to go. The younger one did. It is still hard to make the older child go. There was nothing structured before Court orders, but it has been working well since. She conceded that she only wanted the father to spend six hours on Saturday and Sunday. Her son did not want to go, and the children were frightened at that point. There were then Court orders for three out of 14 nights with the father. She said that she conceded she told the section 11F reporter that things were working well. She had not wanted to extend time because the children had concerns. She accepted that X told the 11F reporter that he enjoyed time with the father. It was put that Y said he had no worries but wants more time, but the mother said he likes the time he has got but does not want more. She is happy with Wednesday nights and each alternate weekend. The children are very aware that the parents do not get on. They were frightened that day on the side of the road. It is very important they have a relationship with the father. When it was put that the children were not choosing sides, the mother said absolutely not. The son gave a statement to the police at H. It was put that X wants to support her, but she said no. Her answer was to the effect that her son has a very set view about things. She denied coaching him. She did not agree that the 11F report recommended five/nine (although it clearly did). Time has gone much better since Court orders. The children are well looked after with the father. There has been extra time this year, usually a couple of hours. They want to use their bikes and Xboxes. There has been no overnights, except one or two occasions. She had had to move out of her mother’s into a rental. She conceded the children had spent 16 August, 29 August and 7 September with the father. She conceded further time in September, also. When pressed about the amount of time the children had been with the father, the mother was clearly argumentative and defensive about it, and said that they had only spent extra time when it was necessary. It was not because the children wanted more time. She would always give time if the children asked, but they do not want to live primarily with him. Communications are more courteous because of the Court order. This is more than 90 per cent of the time. The children told the Family Report writer they enjoy their time with the father but do not want more. They come home and tell her that they have not been showered or fed properly. Y does not need assistance to shower. Both complain that there is mildew in the father’s shower. Her house is very clean, spotless. The children do not like dirt.
Counsel put it that she had had a falling out with her mother. The mother agreed but said they had patched things up. She left the children alone for 20 minutes and went to the shop and came back. The boys were on PlayStation. The shop was down the street from where she lives. There was an altercation between her and her mother. They have always had differences of opinion. It got out of hand. Her mum tries to control her. Her mother had not put hands around her neck. The children were there however, and that was why she left. She rang triplezero and got an officer. She had placed the children with the paternal grandmother.
It was put that the children still see her in conflicts. The mother agreed. The father was screaming at her and calling her names. This was a couple of occasions. He was calling her names on the telephone last weekend, and she hung up. Y was present. The children are not close to the father. They tell her everything, but they cannot trust the father. They do not tell him anything. For bike riding and sleepovers it is yes. The conflict is between adults. They have one father and one mother.
Counsel put it that the mother’s life had had some instability in the last few years. The mother said walking on the train lines was pressure from him. It was pressure of her life. It was put that she had changed the children’s school because of problems with the partner of the man she had had an affair with. The mother, as I understood it, denied this, but said that she had changed the schools. There was conflict with the maternal grandmother and aunts and cousins.
The mother said she was, (i.e. had been), in a relationship with Mr F. This was only on days when the children were with the father. She is aware that Mr F has a family violence history involving an ex-girlfriend. The children only met him three to four times. She is not going to put her kids in harm’s way. She is not now in a relationship with Mr F. All the friends she has had in the last few years, she is still friends with. She has no boyfriend now.
The mother confirmed that the husband was controlling. When asked how, she said since 17 they never had shared bank accounts. She never knew what he had. She agreed he had paid a deposit of $12,000 on the property. She said it was a government grant. She only remembered this the other day. The government grant was on top of the $12,000. The building costs were borrowed. He bought the land first and borrowed off the land to buy the house. When asked how she knew about the deposit when she did not know his finances the wife, tellingly, responded she did not know. She had paid more of the bills, which were in her name. She bought groceries. On a couple of occasions, she bought groceries on his credit card.
Counsel cross-examined about the Motor Vehicle 3. It was put that she had said it was a $50,000 vehicle with a loan of $50,000. The wife said it was brand new when bought. It was subleased and he bought it outright. It was a $90,000 car. She did not know if it was a loan or a lease. The Motor Vehicle 3 has gone, but he has bought a Motor Vehicle 5 and an Motor Vehicle 6.
Counsel cross-examined about the Motor Vehicle 1. The wife said she had previously said it was $6,000. It was sold for $30,000. The only thing missing was the stereo. It was originally bought for about $3,500 from New South Wales. He did it up over the years. A lot of things had just came home to her. She had read that he had sold it for $1,000, but it was in perfect nick. They went for drives in it and with the children in it. The boat and jet ski had been at the matrimonial home during the marriage. The only car registered in his mother’s name was because he was under 21. The purchases were all in her affidavits. She thought everything else was in his name. It was all brought home for them. She was never told what he was doing. He pays for the regos and fuel. The boat was bought in Queensland and thought it was all under his name.
Re-examination did not advance the matter.
The Evidence of Mr E
Mr E adopted his affidavit as true and correct. Under cross-examination he confirmed that he had not inspected the vehicle. He had prepared his report from the information provided by the solicitors. It was valued in August 2020. If repairs had been carried out it would change the value. Counsel put it that a clunking differential and a motor rebuild would affect the price. Mr E said the photographs did not look like a fresh motor. There was no damage to the bumper bars in the photographs he saw. He saw radio units within the vehicle, but not MP3. He does not accept that there was rust. There was no obvious recent painting. There was no rust in the photographs. The paintwork looked 10 to 15 years old. It was an older style repaint, but quite good. The husband’s assertions would not affect the value significantly. Even if it was not starting and was in poor condition, and if the father’s assertions were true, it was still worth between $10,000-$20,000.
In re-examination, which tended to have a somewhat leading quality to it, Mr E said that repainting the bumper bars would cost $1,500 to $1,700. It would drop the price by $1,000. V8 engines are usually refreshed frequently in drag racing type cars because of their enormous loads. A GM 308 engine would cost a maximum of $5,000. Replacement of a differential second hand would cost $1,250 to $1,500. You can repair or reskin the dashboards from $700 to $1,000. Everything could be repaired for under $10,000 and then the car would be worth $40,000.
The Opening and Evidence of the Father
Counsel indicated that the Motor Vehicle 3 was on a lease. The Motor Vehicle 3 vehicle had been sold for $1,000. The wife says it should be $20,000. There is a dispute about the ownership of the Motor Vehicle 4, the boat and the jet ski. The husband says the wife should get $150,000, being 45 per cent of the pool, reflecting his initial contribution. The wife should not get more than 10 per cent by way of adjustment.
The husband was called and adopted his affidavits and financial statement as true and correct.
Under cross-examination the husband conceded that the three intervention orders had been taken out by the police. He was taxed with a description of the events in 2014 in annexure 1 to the wife’s affidavit. He said it was a bit different. There was no damage. He had pushed a chair over. She was having an argument with him. He is five foot 10 tall, but she is more solid than him. He was frustrated. Obviously, he should not have pushed the chair over. When asked about the events in 2017, the husband said he threw a chair onto the grass. The children were at home, but they did not see anything. It was out the front, and the children were asleep. He was frustrated about clients having treatments done after 12.00am at night. He conceded the wife had been frightened but said that property was not damaged. He said this was in the morning at 8.00 am. They had a bit of an argument. He had had enough of it.
I interpose and note that the report suggests the events took place at 4.30 pm. It is clear that the husband was underplaying the severity of these two incidents.
When questioned about the events of December 2018 the husband said this was all fabricated. The wife had not swerved. They had an altercation on the side of the road and she smashed the mirror off the car. He invited the Court to hear the audio. The police heard it and it was dismissed. She was saying he hit her. The children saw the incident. He consented to an intervention order, he said it worked out well not to have her around. When questioned about sending her messages describing her as toxic, he said she was harassing him saying his girlfriend drinks. He was then cross-examined in detail about his drinking. He might have a beer or two on the weekends, six at the most at a barbecue. He drinks mid-strength beers. He does not have a barbecue every week. Sometimes on Fridays when he does not have the children, he might have a few beers. He might have a few more than six, maybe seven. If he has spirits at Christmas, it makes him sick. He might drink six over the whole weekend. He was then cross-examined about purchases of alcohol and the amount spent. He said if he goes to a friend, he drops off a slab. These were presents. He was on JobSeeker and people helped him with everything.
I interpose again and say that the husband’s answers about his drinking were prevaricating and evasive.
The husband said he thought the house was very clean. The shower is not filthy. He cleans up the house every week. Sometimes the dog goes next to the door. He does the cooking. He lost his licence two years ago for being over .05. He had an interlock for the first six months. The reading was .06. It was put to him that he has a negative view of the mother. He said he was a bit frustrated how she is carrying on. She would often threaten to call police during the relationship.
The jet ski is his parents’. The wife’s earnings did not go to pay the utilities. The bills were in her name, but he had to pay for it. Sometimes she paid for groceries. Most times she used his card. He asked her what she spent her money on, and she said she spent it on the family. He did not know how much she earned. The electricity bill was not paid and was cut off. She had said she would pay it. The husband was cross-examined about the allegation that the wife threw herself in front of a train. He said it was at the train station. The police were holding her down at the station. He saw her handcuffed at the station. It was not clear to me whether he was saying he was actually at the train station or merely had seen her later at the police station. When he was asked if she was saying that the mother was not fit to look after the children, he said he would hope so. His answer was evasive. He said he does not speak to her every day. He said communications were by text message. He does not speak to her because she becomes erratic. He does not want to talk to her about his day to day life. If he rings her, she says he is harassing her, so he does not.
The husband confirmed they met when they were seventeen and a half and had a relationship before they cohabited. The wife worked as a beauty therapist from 2004 to 2008 and stopped when she had the children. The wife has worked at a salon and at home since Y’s birth. He was not aware that she works three and a half days per week. He is a tradesman and subcontracts his services. He does more repairs. Rust damage is much more labour intensive. If it is structural, he is not qualified. If he wanted to get the car fixed, he would get it fixed.
The husband said he bought the block to begin with. He paid the deposit. There was also the homeowner’s grant. The wife had another house, but he did not understand it was held on trust. The $12,000 was not the homeowner’s grant. He bought the land three weeks before the build and it finished in 2006. He was not aware she was saving. He paid for the couch. She was paying off her car loan. Her wage was not that high. She bought some furniture. They borrowed to build, and they borrowed about $250,000. You have to pay 22 per cent, and he paid the deposits. When it was put that the wife was the primary carer, he said he thought it was equal, but it was not financially. She never did any gardening.
When asked about the Motor Vehicle 3, he said the lease ran out. He had sent pictures of the finance agreement to his solicitor. It was not a VX and it was not $80,000. It was a special edition costing $76,000. It was leased. A guy took over ownership of the dealership. He had paid up to the last payment before the balloon payment. The Motor Vehicle 3 went in March. It had mechanical issues. The car dealership paid this out. He took it to the dealership in Suburb C. He needed a car for work. They gave him $1,000 more than the balloon payment of $28,000.
I interpose, again, and say the husband’s answers were, again, evasive and unsatisfactory, but it seems clear that he has no longer possession of the Motor Vehicle 3, and it would seem the lease has been novated.
The husband was cross-examined about the Motor Vehicle 4. It is at his house, but it is his mother’s car. It was put that this was only because he was seventeen and a half when he obtained the car, but he said it was his mother’s car. His mother pays the rego. He is fixing it now. Sometimes he uses the car and sometimes his mother uses the car. It used to be her car. She is 65. Sometimes they come and visit. It is not always parked at his house. It has not been there for the last 20 years. It is worth $6,000 to $7,000 if perfect. A new engine would cost $3,500.
Cross-examination turned to the Motor Vehicle 1 vehicle. He said he sold it for $1,000 in 2020. It was the first week of COVID. The boot was rusted out. They had been around the block with it when it was first bought. He did not tell the wife he had sold it. He needed the space. He had to start working from home, so he sold it. He confirmed the receipt was the scrap of paper. The purchaser was not his mate. He sold it unregistered. Mr E saw the car as it was finished. He thought it was worth more. He does not have the purchaser’s address. The buyer is not holding the car for him.
It was put that the boat was bought in Queensland. He said he saw the boat, but his parents purchased it. He did not register it. His parents have not been on it only half a dozen times. They would say, “We will meet you at the beach.” The boat is at his home because it is closer to the beach. His parents bought the jet ski for the grandkids and for the family. He had not thought to call his parents as witnesses. When asked if he had finance to pay the wife $150,000 as he proposed, the husband said his parents would help him out. He has made a finance application to the CBA, and they will review this after COVID. At the moment, he is on COVID payments, but hopefully will be able to earn $100,000.
The husband said he bought his new Motor Vehicle 5 in June or July 2021. It is financed for $58,000 and he is paying $163 dollars a week. He has just registered a business and will do mobile work. It is hire purchase from Company J. He pays the child support that the authority tells him, and he agreed this was $144 per week. When asked about an Motor Vehicle 6, he said he had not bought one. He is fixing something on it. It is under his mother or father’s licence. He is trying to fix it, but if he cannot, it will have to be scrapped. When asked about his superannuation, he said he thought he had $15,000 but his lawyer had the figure. He was prepared to undertake the Parenting Orders Program.
The Evidence of Ms G
Ms G adopted her report as exhibit T1.
Counsel for the mother suggested that the husband’s position of week about meant that communications are very important. Ms G said that there needs to be a workable communication. They need the absence of open expressed conflict. Counsel put it the father has negative views of the mother. Ms G agreed. This would hinder effective communication. She had recommended the Parenting Orders Program and the Tuning in to Kids Program. Both parents need it. They had not enrolled and did not understand why they needed it. She understands the parents text each other. Her recommendations reflect the status quo and the established regime of time. Both children accepted the current arrangements. Neither wanted to change their current arrangements.
Under cross-examination by Counsel for the father, Ms G confirmed that she had read the 11F report. It was put that the 11F report had different recommendations to hers. Ms G accepted this. She said it was to do with the time involved. She saw the parties down the track. This is not uncommon. There was a general impression the children wanted time with their father. Y was a little critical, perhaps repeating the mother’s concerns. The bottom line was the children want to spend quality time with their father. Both boys felt they could ask their mother for more time and the mother would be accepting of that. She was aware the mother’s original position was day time only. She was aware this was the basis of the history of the matter. It was put that the children could adapt if there was more time with the father. Ms G said the children had spent some additional time, particularly during lockdown. The mother was open to that. The children did not think it was a big issue if they raised this with their mother. Both children commented that they were not comfortable with the parental fighting which makes them sad. Ms G said that we know enough about shared cared to know many situations are not perfect but need workable communications. The children say they are aware of raised voices. Both parents were frustrated and unhappy. This is still a concern for the children. Counsel asked why the children would be unsettled with equal time when twelve and nine years old. Ms G said that the children were used to the primary maternal care and used to time with their father. Neither child showed a strong desire to change. There are no risk factors that should cause change to the status quo. It was put in the alternative that a six/eight arrangement might be in the children’s best interests. The children feel the current arrangements work for them. They can ask for more time.
Final Submissions by Counsel for the Father
Counsel noted that it was an argument between five/nine and seven/seven. The holidays were agreed. Ms G says the status quo should continue. Nonetheless, the Court was required to consider the statutory pathway. The family violence was historical, and the alcohol issue was irrelevant given the mother’s five/nine proposal. There was a risk the children’s wishes were coloured by the mother. Counsel referred to the set dialogue observed by the 11F reporter. Y mirrored the mother’s views. The children enjoy their time with the father. The mother said the children were terrified. Increases in time were opposed by the mother. There was no confidence there would be extra time if the children asked for it. The communication is far from perfect, but it is workable. Texts have been civil for the last eight to nine months and the children have not reported denigration. There had been some instability in the mother’s life. There was a protective factor in an equal time regime. The mother had had a breakdown and moved the children’s school and had had a breach with her own mother. There was evidence of Mr F’s CCO. The mother said she was still friends with all her ex-partners and there should be an order that the father not leave the children alone with Mr F.
Turning to the issue of the property pool, Counsel submitted that in respect of the Motor Vehicle 3 the husband had not been represented throughout. Requests for documentation had been as recent as 14 October. The husband says there was a lease of $14,000 and a balloon payment of $28,000 which would be $42,000 in total plus $1,500 paid to the husband, which was close to the wife’s asserted figure. The wife says the Motor Vehicle 1 vehicle is worth $20,000, but the expert said it had not deteriorated in the 12 months. The husband says the boot, the floor and the engine bay were rusted and there was no radio, but a CD was put in for sale. It was not a wastage to sell for $1,000. He said he bought it for $500, and the wife says $3,500. The wife sold a car for $1,000 worth $9,000, and it was not asserted by the husband that this was wastage. The husband says he does not know Mr K. The boat, the jet ski and the Motor Vehicle 4, the registration documents show these belong to the parents. The wife was not present at the purchases. The usage of these chattels was neither here nor there. Counsel submitted the Court should not draw a Jones v Dunkel [1959] HCA 8 inference arising from the failure to call the parents. The husband was unrepresented. There is no evidence as to the value of the disputed items, in any event. The husband says the wife should get 42 per cent of the non-superannuation assets and he gets 58 per cent. This is predicated largely on the initial contribution. He brought the property in. He paid $12,000 for the land and $35,000 for the build, together with $11,000 in further renovations. The land was $126,000. The wife did not deny the deposit on the build but did not know how much. The husband said 22 per cent deposit which was $35,000 and the figures were consistent. There was no de facto relationship at the time. The parties were dating, but not cohabiting. There should be at least a five per cent adjustment to the husband. Counsel made reference to the well-known case of Pierce v Pierce [1999] FLC 92-844 in this regard. The husband does not seek a split of superannuation. The parties’ earning capacities are similar. There will be greater capacity to earn after COVID. The wife says she earns $819 per week or $42,000 per year. The husband earned $49,000-$58,000 in the last three years. The wife is working only three and a half days. If the time regime is not equal, there should be no more than 10 per cent adjustment to the wife. No Kennon & Kennon (1997) FLC 92-757 adjustments have been sort.
Final Submissions of Counsel for the Wife
In respect to parenting, Counsel submitted the wife had consented to extra time. She has been flexible and given more time. Counsel relied on Ms G’s report and evidence. The children have been living for three years with their mother. He denied that this was an accounting argument (as Counsel for the husband had suggested). The current arrangements work for the children and their best interests are paramount. The father will have substantial and significant time and the Court should be confident the mother will be flexible. The mother says the father abused her a week ago, but there is no case that the violence is relevant to the nature of the communications between the parents. Texts have been courteous, but speech is not there yet. The Tuning in to Kids and Parenting Orders Program should be made. The children have had three years’ time with the mother since 2018. Counsel then traversed the question of Mr F but appeared to not press the matter given, as I pointed out, that the wife had herself given evidence as to his criminal history.
Counsel turned to property issues. The husband says he has bought a vehicle for a car painting business. It is a very expensive lease and Counsel surmised as to how he would manage week about time if his business was successful. It is currently Friday to Monday and Wednesday nights. The Motor Vehicle 1 car was a classic exposition of the case of Chang and Su [2002] FamCA 156. The financial statement of 29 June 2020 valued the Motor Vehicle 3 at $20,000 with a liability of $14,000. Today’s evidence is $14,000 and a balloon payment. There were no documents at all. The husband’s evidence about the Motor Vehicle 3 should be rejected. He had sold a car for $1,000 in March 2020. Mr E’s evidence now says the car was repainted seven or eight years ago. It was not a rusted vehicle and was worth up to $40,000 less $10,000 repairs. Counsel sought the inclusion of the Motor Vehicle 1 car to the value of $30,000. Whether it had been disposed of or not, we do not know. The evidence was unsatisfactory. It is not known if the husband has the car. It is a matter for suspicion. This has been wastage and $30,000 should be added back. Counsel referred to Kowaliw & Kowaliw (1981) FLC 91-092 case in this regard. The boat, the jet ski and the car are all registered to the parental grandparents. The jet ski was purchased for the family. There is a presumption of advancement and no evidence to rebut it. They are all housed by the husband. The car has been there for 20 years. He bought the boat after the trip to Queensland and the jet ski was bought from the husband’s employer. There was a Jones & Dunkel inference. It would not have taken long to put the parents on affidavit and the Court should draw an adverse inference. It was a relationship from 2006 to 2018 of some 12 years. With regard to the house, the wife has to get 50 per cent at least. Substantial non-financial contributions were conceded. It was a classic partnership. The wife worked hard and had two emergency caesars. 45 per cent suggested by the husband was not in the range. Chang & Su and the deliberate non-disclosure should lead to a five per cent adjustment to the wife. There was wastage of $30,000. So far as earning capacity is concerned, the wife works three and a half days and earns $32,000 per annum. Counsel referred to Walters & Walters [2007] FamCA 324 at [21]-[25]. The husband in that case stopped working for the mines and cared for his children and this option was approved.
The husband bought a new vehicle. The husband earned double the wife’s earnings. If it is a small pool, it should be a sizeable adjustment to the wife. The Court should not concentrate on percentages. 70 per cent to the wife was reasonable. He conceded there were no valuations for the boat and jet ski.
In further brief submissions Counsel for the husband traversed the question of the Motor Vehicle 1 car again and its purchase price. It was submitted Chang & Su did not lead to any adjustment.
Brief Observations about the Credit of the Witnesses
The case was perhaps slightly unusual in as much as both witnesses at times were thoroughly unsatisfactory. The wife’s denial of the effect of the 11F report recommendations, on which I have already commented, was striking. She was at times, as I have said, argumentative and dogmatic. Her answers about the altercation, as she put it, with her mother, in which she sought to suggest they were simply both strong willed, was prevaricating and evasive. It plainly involved a major tumult. She was highly defensive at times and prone to self-serving answers. Her evidence presented as somewhat florid at times, albeit that her description of the husband assaulting her in 2018 was entirely believable.
It is a pleasure to record that Mr E was a quite tremendous expert witness. It was quite apparent from his answers that he knows his field from soup to nuts. He was an entirely credible and convincing witness.
The father, like the mother, had a number of weaknesses. He massively underplayed the incidents in 2014 and 2017 and his assertions that the evidence in 2018 was fabricated is plainly just wrong. As earlier indicated, his answers about his drinking were also unbelievable and I have no doubt that on occasions he has drunk far more than he is now prepared to admit. His view of the mother was much more heavily qualified than he tried to present it. His answers about the disposal of the Motor Vehicle 3 were almost impossible at times to follow, albeit that I have ultimately concluded, as I have indicated, that he no longer has it. His answers about the Motor Vehicle 4 were plainly untruthful. It is plainly his car. I will return to the Motor Vehicle 1 car when I come to deal with the various chattels but, once again, the husband’s evidence was eminently unsatisfactory.
PARENTING ISSUES
It is appropriate to follow the pathway as indicated by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
The parties agree there should be an order for equal shared parental responsibility, notwithstanding the family violence that has occurred in the past. It is recommended by Ms G, the parties want it, and it is plainly appropriate that there be such an order.
The Primary Spend Time and Communication Issues – The Primary Considerations
Both parties agree it is in the best interests of these two children to have a meaningful relationship with both of their parents.
Arguably, the parties’ positions would suggest that there might be a need to protect the children from the risk of physical or psychological harm from being subjected to abuse, neglect, or family violence. The father would have it that the mother is mentally unstable and the mother asserts that the father has problems with alcohol. She also makes what I find are well-founded allegations of family violence.
Nonetheless, given that the mother is proposing that the children spend five nights out of 14 with the father, and the father proposes that the children spend seven nights out of 14 with their mother, these criticisms must be seen as heavily qualified.
While of course I have regard to these matters, it is inherent in the parties’ positions that the children should indeed spend very significant amounts of time with each of their parents.
The calibration of that time is best addressed, in my view, by consideration of the additional considerations in section 60CC.
Section 60CC(3)(a)
The children have indeed, as Ms G recorded, indicated a general acceptance of current parenting arrangements. They described an established primary care relationship with their mother.
While the children are still relatively young, their views should be given some weight.
Section 60CC (3)(b)
The children clearly have a loving and closely bonded relationship with each of their parents. They plainly, as Ms G described, see their mother as their primary carer and indeed, she has always been so.
They appear also to enjoy the more physically active routine that appears to obtain in the home of their father. Little has been by either party as to relationships with more extended family members, but there is nothing to suggest there is anything untoward in this regard.
Section 60CC(3)(c)
As with a number of these additional considerations, this matter can be dealt with relatively briefly. Both of these parents have taken every opportunity available to them to participate in decisions, and to spend time and communicate with the children.
The father has prosecuted his case to judgment which speaks for itself.
Section 60CC (3)(ca)
The mother has always been the children’s primary carer. She has plainly fulfilled her obligations. The father pays child support as assessed and has, in my view, adequately fulfilled such obligations as he has been able to.
Section 60CC (3)(d)
The change that the father seeks would be a significant increase in the children’s time with him. Ms G’s view was that the paternal proposal to substantially change the children’s living arrangements was not supported and was likely to result in the children becoming unsettled.
Ms G acknowledged the children’s expressed views and preferences. Her recommendation was clear, and she was not in any way shaken in cross-examination. Indeed, she answered all questions put to her responsively and fairly.
Given that the children have been in the primary care of their mother with reduced time with their father for at least three years, and given their primary attachment to her, these are matters that militate strongly against the increase for which the father contends.
Section 60CC(3)(e)
There are no identified difficulties arising out of expense inherent in either party’s proposal. One matter that seems to me not to have been fully thought through by the father is his capacity to actually cope with a 7-7 regime. At the moment, he sees the children on Wednesday nights each week and each alternate week from Friday after school until Monday before school.
What is not immediately apparent is, when COVID relents and his business hopefully is as successful as he himself hopes, how he would cope with the routine of getting the children to school and collecting them after school for five days in a row.
Nonetheless, this matter was not explored in any great detail and I should make it clear that it is not a matter of overwhelming weight.
Section 60CC(3)(f)
Despite some periods of turbulence in her life, there is nothing to suggest that the mother is not, in a general sense, well able to provide for the children’s needs. It is a matter of note and concern that her somewhat volatile temperament has even relatively recently led to a major conflagration with her own mother with whom she was previously living. Her personality plainly has an element of volatility to it.
I have no doubt that on occasions, at least, that during the relationship, she engaged herself in bad language and arguments with the father.
Nonetheless, she has done what seems like a very good job thus far and will continue to do so.
In truth, the father’s capacity to care for the children, put in issue by the mother, must at the very least be adequate. If it were not, the children would not enjoy their time with him as they do.
The mother’s criticisms of poor hygiene are at least in part in my view likely correct. Her evidence about the children returning dirty and smelly was given with conviction, and I accept it. What she may perhaps overlook, however, is that children of this age being boisterous and active mean they indeed as young boys not be as sensitive to their hygiene themselves as they ought to be. The notion that the father’s household is a tip is not one I am prepared to accept.
This was, as I understood it, really the only significant criticism advanced of the father’s capacity to provide for the children’s needs, and the mother herself acknowledged that the children have asked for more time with the father on occasions of recent times.
Section 60CC(3)(g)
Both of these parents have their deficits, as indeed we all do. In the mother’s case, it would seem that her personality has, on occasion, somewhat surrendered to the pressures of life that she has led. She was wandering on train tracks in 2018. She has had an extremely turbulent relationship with her mother. From what she said, she appears to have had a not inconsiderable number of partners since separation (noting that this is not in any sense unlawful but rather reflects what seems to be a naturally volatile personality).
The father has a tendency to violence, which he underplays. Like the mother, he struck me as having a somewhat volatile personality. Nonetheless, neither of these parents have such deficits that substantial time is inappropriate and indeed, both seek it. Children are worn out by the parents’ quarrelling, and they are old enough to tell Ms G about it, but seem, notwithstanding this, to be well-adjusted and sensible young persons.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
Although important, in this matter, this subsection has already really been addressed above. Despite their deficits, these are two perfectly decent people who want the best for their children.
Section 60CC(3)(j)
The father’s breezy denials of any kind of violence are simply unbelievable. I have no doubt that incidents in 2014 and 2017 occurred as the mother described. They are consistent with the contemporaneous complaints made in the intervention order applications, and the mother’s evidence about this was given with conviction and I accept it.
The father’s assertion that he placed items out into the garden in a measured fashion devoid of anger is just not one I accept. But one point he said was to the effect that he just got fed up with it, and I have no doubt that he snapped and lost his temper both in 2014 and 2017. The disgraceful incident in 2018 speaks for itself. Things were so out of hand that a passer-by called the police.
I have heard the parties give their evidence about these matters, and I prefer that of the mother. Nonetheless, and notwithstanding these disgraceful episodes, the fact is that the mother is proposing 5-9 with the father, which once again speaks for itself.
Section 60CC(3)(k)
I think there is an intervention order in place, but it does not now add anything to the matter, given the parties’ proposals.
Section 60CC(3)(l)
It is plainly appropriate to make final orders, and everyone seeks that this be done.
Section 60CC(3)(m)
There are no other relevant matters.
CONCLUSION ON THE PARENTING ISSUES
Taking all of the above matters into account, it is immediately apparent that the regime sought by the mother is that which is in the children’s best interests. It is what the children are well used to. It reflects the mother’s role as the primary carer and attachment. It’s what the children themselves want, and it is what is recommended by the experienced family counsellor who wrote the family report. Plainly, these are the appropriate orders to be made.
PROPERTY ISSUES – STANFORD & STANFORD
Both parties seek that there be a property adjustment. The Court’s task is, of course, to ascertain the legal and equitable interests of the parties and determine whether a property adjustment is just and equitable. In circumstances where they both seek a property adjustment and their circumstances are now so markedly different to what they were during the marriage, it is plainly appropriate that there be one.
The Balance Sheet, Which I Have Marked for Identification as MFI-1
This sets out the parties’ competing positions. From this, it is apparent that the agreed pool consists of
(a)Former matrimonial home, B Street, Suburb C, $600,000;
(b)Motor Vehicle 2, $250.
The agreed liabilities are:
(c)B Street, Suburb C mortgage $230,000.
The parties’ superannuation is:
(d)Wife’s superannuation $31,724;
(e)Husband’s superannuation $13,587.
It should be noted, however, that neither the further amended initiating application nor the amended response seek a superannuation adjustment but equally, neither have suggested it be excluded from the pool.
I will now deal with the disputed items.
Motor Vehicle 3
As earlier indicated, the husband’s evidence about this aspect of the matter was thoroughly unsatisfactory. As earlier indicated, however, and notwithstanding this, I am of the view that the Motor Vehicle 3 has gone. It has been repossessed and the husband received $1,000 for it. I will allocate that $1,000 value in the pool.
Motor Vehicle 1
The husband’s evidence about this was again, in my view, implausible and unbelievable. According to him, it was sold in March 2020 totally rusted out for $1,000 to someone he did not know. There are two things which tell against this narrative decisively. First, it was for sale within a matter of months at a price of over $30,000.
Second, the husband was adamant that if nothing else, the bumper bars were damaged and required repair. Mr E’s evidence was that the repaint on the bumper bars was some seven to eight years old. This was evidence from an exceptionally and obviously knowledgeable expert, which I accept. Mr E did not accept that there was rust on any parts of the vehicle that he was able to observe, nor had there been any repairs to remove any such rust as might have been otherwise there. It is quite clear that this vehicle was in much better condition than the husband suggests now. Whether the purchaser is merely holding it for him as is very possible or whether this was simply a ridiculous act of spite, it is impossible for me to say. What I do accept is Mr E’s evidence that this vehicle would have been worth $10,000 to $20,000 even in poor condition.
In the circumstances, bearing in mind the price for which it was available to be sold, even if the sale asserted by the wife did, as the husband suggests, actually fall through, it is an item that should be brought back into the pool as wastage in the sum of $20,000. I adopt this value because it is possible, as Mr E conceded, that there may have been parts of the car that he simply was not able to observe.
Nonetheless, the parts that Mr E did observe appear to have been to a decent standard. This outcome is the best the Court can make of this unsatisfactory evidentiary dispute.
The Wife’s Car
This is said in MFI1 to be in dispute with the husband asserting a value of $9,000 and the wife asserting nil. However, the wife’s trial affidavit asserts a value of $9,000, and I will include it at that value as an indication against interest.
Motor Vehicle 4
As earlier indicated, I have no doubt that this is the husband’s car. It has not been the subject of any evaluation and it is therefore not possible to allot it any particular worth. There is simply no evidence on the matter.
The Jet Ski and Boat
These are conceded to be registered in the name of the father’s parents. I accept the wife’s evidence that the husband pays the registration for them. Her evidence about the use of these matters was given with conviction, and I accept it. Having heard what the husband had to say, insofar as it was relevant, it would appear that these two chattels are used for the benefit of the husband and his family more generally. Plainly, they will never be repossessed by the grandparents.
Nonetheless, and as with the Motor Vehicle 4, there are simply no valuations for them. It is not possible to allot them a value, in any event. Given the uncertainties as to their legal ownership, or more accurately their ownership in equity, and given the lack of valuations, I will exclude them from the pool.
The Issue of Contributions
This was a reasonably lengthy relationship and there is no suggestion of a Kennon case as Counsel for the wife made clear. Both parties undoubtedly did their best throughout the length of the relationship.
At the commencement, they had but little of any moment. One area where the evidence is clear, however, is the initial contributions to the matrimonial home which is their only real hard asset of any great worth. It is clear that the husband put in the deposit for the land. It is also clear that he put in some $35,000 more towards the build.
His earnings were, as I find, likely greater than the wife’s, since as a tradesman he was more likely to make more than the wife as a beauty therapist. There is no doubt that his initial contribution has had a real impact upon the parties’ capacity to own the property.
I accept that the wife put money by for what she described as matters in her glory box. By definition, however, this is such matters as linen, towels, and other household accoutrements. These are not matters to be set at nought by any means, but they were, as I find, lesser than the contribution made by the husband.
Counsel for the wife submits that in effect, any weight to be given to this initial contribution by the husband should be assessed in the light of the length of the relationship as a whole and refers to Kowaliw’s case in this regard. I accept the force of that submission as a general proposition, but in circumstances where the husband’s initial contribution was so significant to the ultimate outcome some weight should be given to it.
I also note that his evidence about the additional contributions he made to the renovation of the property were not convincingly challenged. Otherwise, plainly, both of these parties committed themselves to the earning of funds to support the family, and in the mother’s case, the primary role as a parent. This last matter is not to be assessed in a tokenistic way.
In all the circumstances, I would assess the contributions of the parties as 52 and a-half per cent to the husband, and 47 and a-half per cent to the wife.
The Future Needs Issues
The husband is in the process of re-establishing himself post-COVID in self-employment and has bought an expensive vehicle to do so, although it is very heavily leveraged. If things go well, he will make up to $100,000, although his optimism in this regard must be qualified by his $50,000-$60,000 earnings in years prior to COVID.
The wife, on any view of the matter, will not earn anything like as much. She has a reduced income of some $32,000 per annum.
Counsel for the husband was to an extent critical of her reduced working hours, but as I understand the matter, the wife has taken what she has available to her to take. It is possible her income may increase somewhat, but on any view of the matter, it will be nowhere near that of the husband.
The parties are similar in age and do not appear to have any identifiable health issues that are likely to impact upon their capacity to work into the future.
The wife has the primary care of the two children, albeit that it will be a 9-5 arrangement. That is, however, almost twice as much time as the father has them. The children are still young and she will have the primary care of these children and the responsibilities arising from that for years to come. In all the circumstances and noting the likely disparity in income, I think there should be a 15 per cent adjustment in favour of the wife.
CONCLUSION
In my opinion, an outcome that gives the wife 62 and a-half per cent of the property pool and the husband 37 and a-half is indeed just and equitable in all the circumstances.
I have attached a schedule indicating how I would see these findings operating on the pool as I have found it. The husband has indicated that he might seek to buy the wife out, but the wife seeks that the property be sold.
I have drawn draft orders to give the husband an opportunity to buy the wife out, but we will hear from the parties before making these final.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 10 December 2021
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