B and B
[2003] FMCAfam 278
•8 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B | [2003] FMCAfam 278 |
| FAMILY LAW – CHILDREN – Planned relocation of wife – husband applying for residence – evaluation of parties’ competing proposals. PROPERTY – Small asset pool – most substantial asset husband’s superannuation acquired prior to marriage – prospective needs of both parties – whether appropriate one party has all liquid assets. Family Law Act 1975, ss.60B, 65E, 68F, 75, 79 U & U [2002] FLC 93-112 |
| Applicant: | P L B |
| Respondent: | D G B |
| File No: | DNM 2475 of 2001 |
| Delivered on: | 8 August 2003 |
| Delivered at: | Darwin |
| Hearing dates: | 9 & 10 July 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr D Story |
| Solicitors for the Applicant: | David C Story |
| Counsel for the Respondent: | Ms M Allan |
| Solicitors for the Respondent: | Sivyer & Associates |
ORDERS
That the children of the marriage Z A B born 31 July 1998 and T K B born 2 August 1999 live with the wife and she have responsibility for their day to day care, welfare and development.
That until the 15th of January 2005 the wife be restrained and an injunction issue restraining her from moving the residence of the said children from outside of the municipal boundaries of either Darwin or Palmerston without the written consent of the husband but thereafter the wife be permitted to live with the said children in Brisbane, Queensland.
That pending the relocation of the wife and the children as envisaged in order 2 hereof, the husband have contact to the children as follows:
(a)Each alternate weekend from 5.45pm on Friday until 5.30pm the following Sunday;
(b)Each Wednesday night from 5.45pm until 8.00am the following Thursday;
(c)For one half of the Northern Territory June/July school holidays commencing with the first half in the year 2004 and each alternate year thereafter and with the second half in 2005 and each alternate year thereafter;
(d)For one half of the Christmas school holidays being the first half in the year 2003/2004 and each alternate year thereafter and the second half in the year 2004/2005 and each alternate year thereafter save that on each Christmas Day that in the event that the children are in Darwin the parties shall have equal time with the children on Christmas Day.
(e)For the third term school holidays in the year 2003 and each alternate year thereafter;
(f)For the whole of the first term school holiday in 2004 and each alternate year thereafter;
(g)Where Father’s Day falls on a non-contact weekend the father have contact with the children from 9.00am until 5.00pm on Father’s Day;
(h)Where Mother’s Day falls on a contact weekend the father return the children to the wife’s home at 9.00am on Mother’s Day;
(i)On each of the children’s birthdays for a period of two hours if their birthday falls on a week day and for a period of four hours if such birthday falls on a weekend when the children would otherwise be living with their mother;
(j)By telephone each Monday evening at 7.00pm;
(k)At any other time and on whatever other conditions the parties may agree from time to time.
That upon the wife and children’s relocation to Brisbane as envisaged by order 2 the husband have contact to the said children as follows:
(a)For one half of the December/January Queensland school holidays;
(b)For the whole of the mid year Queensland school holidays;
(c)For all of either the April or September/October Queensland school holidays in any year at the husband’s election upon him giving eight weeks written notice to the wife;
(d)By telephone at all reasonable times.
That the parties share equally all the children’s travel costs for the children to travel between Brisbane and Darwin and return for the contact as set out in order 4(a) and (b) above and with the husband to pay all the travel costs associated with the children’s travel to Darwin from Brisbane and return as envisaged by the contact in order 4(c) above.
That in the event that the husband moves from Darwin to Brisbane and lives within 50 kilometres of the wife he shall have contact with the children in accordance with the contact as set out in order 3(a) to (k) herein.
That the husband and wife each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as practicable of the name of each treating doctor or like professional attended by the children.
That each of the parties be and are hereby restrained from denigrating the other parent or discussing any aspect of these proceedings and the judgment delivered herein in the presence or hearing of the said children.
That each party keep the other informed at all times of his or her current residential address and telephone number.
That the wife authorise the Principal of each school attended by the children from time to time to send to the husband:
(a)A photocopy of each school report about the children;
(b)An order form for each school photograph of each of the children.
That the husband be at liberty to visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.
That the proceeds of sale of the former matrimonial home situated at 2/2 C C, Malak currently held in trust be divided equally between the parties.
Pursuant to section 90MT(4) of the Family Law Act the base amount of $14,796.20 be allocated to the wife in respect of the husband’s superannuation interest in the Colonial Mutual Life Association policy number **** and that pursuant to section 90MT(1)(a) whenever a splittable payment becomes payable in respect of that interest the wife is entitled to be paid the amount calculated in accordance with the Family Law (Superannuation) Regulations in respect of that base amount and there is a corresponding reduction in the entitlement of the husband.
That the husband retain for his sole use and benefit the furniture and contents of the former matrimonial home currently in his possession.
That the husband retain for his sole use and benefit the Toyota motor vehicle and trailer currently in his possession.
That the husband retain the contents of the bank account in Kupang.
That the husband retain the Telstra shares and the wife within 28 days of today’s date execute all necessary documents to ensure that the said shares are transferred into the husband’s name.
That the wife retain for her sole use and benefit the Ford Festiva motor vehicle currently in her possession.
That the wife retain the shares in the Commonwealth Bank and that within 28 days of today’s date the husband execute all necessary documents to transfer the said shares into the wife’s name.
That the wife retain for her own use and benefit the shares in AMP standing in her own name.
That unless specified in these orders, and save for the purposes of enforcing the payment of 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 all claims he/she may have to any superannuation or work related benefits belonging to or earned by the other, other than the order referred to in order 13 hereof;
(c)assurance policies remain and/or become the sole property of the life assured named therein;
(d)each party be solely liable for and indemnify the other against all liability howsoever kind and nature and howsoever arising, encumbering any item of property to which that party is entitled pursuant to these orders;
(e)all joint tenancies whether in real or personal estate be expressly severed.
That the applicant serve a copy of these orders on the trustee of Colonial Mutual Life Association superannuation fund and the trustee is given leave to be heard in respect of the splitting order referred to in order 13 hereof within 7 days of being served with these orders
That all other applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 2475 of 2001
| P L B |
Applicant
And
| D G B |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a difficult and problematic case. It is what is commonly called a “relocation case”. The parties to the proceedings are P L B “the wife” and D G B “the husband”. The parties are the parents of two children, Z A B born 31 July 1998 and T K B born
2 August 1999.
Both parties have lived in Darwin for many years. They met and subsequently married in Darwin on the 18th of July 1998. Both of the children were born in Darwin.
The parties have been separated for sometime now, since September of 2001 and since that time, the children have lived principally with the wife. Orders were made in this Court on the 25th of February 2002 formalising arrangements for the care of the children. Pursuant to those orders, Z and T continued to live with the wife and have regular contact with the husband, each alternate weekend and overnight on each Wednesday. Provision was also made for the husband to have extended periods of holiday contact with the children.
It is now the wife’s position that she wishes to live in Brisbane with the children. The husband opposes such a move. It is his position that he himself is unable to move readily from Darwin, where he is well settled and has long-standing ties. Accordingly, he believes that if the wife and children do live in Brisbane, given the ages of the children concerned, it will inevitably disrupt the close bond he enjoys with Z and T, to their long-term detriment. He also believes that the wife has significant difficulties in adequately parenting the children, particularly Z. He also believes that he is better equipped than the wife to deal with the challenge of parenting two lively and demanding children. For that reason, he seeks orders from the Court that would result in both children living primarily with him in Darwin, regardless of where the wife chooses to live in future.
It is the wife’s position that she is unhappy living in Darwin, where she has no family support. Her closest relatives, A and S J, her stepfather and wife respectively, live in Brisbane and will be available there to give her emotional support. In addition, she believes that, in the long run, Brisbane will offer her and the children significantly better educational opportunities and she herself will be better off financially there. In the New Year, she wishes to commence a Bachelor of Education course and in time become a teacher. Mr and Mrs J will be available to help her, not only emotionally, but also in a practical sense, in caring for Z and T, while she attends the necessary courses. Above all in Brisbane, she will be able to fashion her own destiny and inevitably this will make her happier.
The wife will not countenance a change in the residence of the children at this stage. It is her position that of the two parties, she has been more intimately involved in the provision of their daily care, particularly of late, since the parties separated. Accordingly, if she is unable to move to Brisbane with the children, she would seek to remain the parent principally responsible for providing for their care in Darwin. In other words, she would not consider living outside of Darwin without the children. However, she is prepared to make the concession that she would remain in Darwin for the next fourteen months, to enable the children to consolidate their bond with the husband, before she departs for Brisbane in October of 2004.
At the same time as the children’s issues are determined, it will be necessary to make orders for the division of the parties’ matrimonial property. The marriage between the parties was comparatively short. Regrettably, in material terms, there is not a large amount of property available to be divided between them. At the present time, neither party is in a robust financial position. One of the consequences of the end of the marriage between them, is that inevitably both parties will suffer a decline in their standard of living for the foreseeable future, from that that they previously enjoyed whilst married. At this stage, neither party has re-partnered.
There is a significant discrepancy in the ages of the parties. The husband is some 18 years older than the wife. He has been married before and brought significantly greater assets into the marriage than the wife did. In particular, he accumulated a significant amount of superannuation, which relates to a previous period of employment he had with the Northern Territory Government, from which he was made redundant prior to meeting the wife. This is a significant factor in determining in what proportion the matrimonial assets should be divided between the parties. Obviously the other significant factor is with whom of them Z and T will live in future.
During the marriage, the husband bought for the wife a gold and diamond ring. In the context of the pool of matrimonial assets available to be divided between the parties, the ring has a significant value. It is the wife’s position that she left the ring behind in the former matrimonial home, shortly prior to the parties’ separation. It is the husband’s position that the wife retains the ring and accordingly it should be added back into the parties’ pool of assets and entered on the wife’s side of the ledger, when the final division of property is made. It is the wife’s position that the ring has gone and therefore no account should be taken of it in these proceedings. At first blush, it would seem that the only way to resolve this difficult issue, is by means of my assessment of the parties’ credit.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of children have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
In U & U[1] Hayne J said:
“What have come to be known as “relocation cases” present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parent’s lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) (“the Act”) makes plain, the Family Court “must regard the best interests of the child as the paramount consideration”, but that does not deny the fact that there are at least three persons who will be affected by the order that will be made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.”
[1] U & U [2002] FLC 93-112 at 89,102
Australia is a free and democratic society, whose citizens enjoy the right to live where and how they wish. For that reason, Ms B need not demonstrate compelling reasons as to why she wishes to move Z and T from Darwin to Brisbane. Nor am I permitted to determine the case in a way in which residence on the one hand, and relocation on the other, are dissected into discrete issues. Although, in deciding this case, Z and T’s best interests remain my paramount consideration, their interests are not my sole consideration. I must not lose sight of the fact that both Mr B and Ms B have a right to freedom of movement, both within Australia and indeed outside of it. In essence, it is a significant thing to curtail any person’s right to freedom of movement. In determining this case, it will be necessary for me to compare and evaluate each of the parties’ competing proposals, according to the legislative directions as set out in section 60B and section 68F of the Family Law Act, to arrive at the result that I believe will best serve Z and T’s best interests. This is the ultimate issue in the case and to the extent that the freedom of a parent to move impinges upon those interests, then it must give way. If the decision of the Court is that the children should live with the wife in Brisbane, it will be necessary for me to consider the arrangements that each party proposes for Z and T to maintain contact with Mr B and, if necessary, devise a regime which I believe will adequately fulfil Z and T’s right to regular contact with the husband, in the context that they are no longer living permanently in close physical proximity to him.
In this case, it is clear that Z and T are much loved children, by all who are involved with them. I appreciate that not only the parties themselves and Z and T will be affected by the orders that will be made in this case, but so too will be many of their relatives, particularly those who have given evidence in this case, namely their paternal grandmother K B and their maternal grandparents, Mr and Mrs J. Although, Z and T’s best interests are my paramount consideration, I am well aware of the painful ramifications which will inevitably flow from the decision that I will make in this case for all who have been involved intimately in their care.
In this case, the Court was assisted by a family report that was prepared by an experienced psychologist, Christine Martins. I have found her report and the evidence she gave to the Court of great assistance in the matter. In her report, Ms Martins identified the following issues as being relevant:
“(i)The most suitable residency arrangements to best meet the best interest of T and Z.
(ii)The concerns each parent has regarding the other parent’s ability to perform their parental duties adequately.
(iii)The capacity of both parents to care for Z and T in a manner that best meets their interests.
(iv)Whether a move interstate with their wife is in the interests of the children’s welfare and development.”[2]
[2] See Family Report paragraph 10
This is a case which presents no ready solutions. Neither party is willing to compromise his or her position to any great degree. In particular, the husband will not consider moving to Brisbane, in order to accommodate the wife’s wish to live in that city, and so ensure that the children have regular contact with both their parents. Similarly, apart from her concession that she would remain in Darwin for the next 60 weeks, the wife is not willing to consider living in Darwin for any longer period. However, I should not assume that there are no other resolutions possible to the matter. The fact that Mr B could move to Brisbane on the one hand and, on the other, the fact that Mrs B could continue to live in Darwin, are both possibilities that can be explored, although each of those possibilities is not the preference of the parties concerned. At the end of the day, it may be unreasonable for one of the parties to hold the other a virtual hostage, to his or her desires and wishes, when he or she is not prepared to make any sacrifices in respect of the best interests of Z and T.
The parties each have serious criticisms of the other’s abilities as a parent. However, I have no reason to believe that both Mr B and Ms B are motivated in these proceedings by anything other than their love for Z and T and their hope for the best outcome for them in these proceedings.
The applications
At the outset, it is appropriate to set out the competing proposals of the parties. The wife is the applicant in these proceedings. In a case outline document[3], the wife indicates that she seeks the following orders:
[3] Case outline filed by the wife the 9th of July 2003
(1)That the children Z A B born 31st July 1998 and T K B born 2nd August 1999 live with the wife and she have responsibility for their day-to-day care and welfare.
(2)That the husband have contact with the children in accordance with the minutes of consent order dated 25th February 2002 whilst the children remain in Darwin.
(3)That the wife be at liberty to relocate with the children to the state of Queensland.
(4)That the wife receive all the funds presently held in the interest-bearing account created pursuant to the order of this Honourable Court and made the 14th day of February 2002.
(5)That the wife retain the motor vehicle presently in her possession.
(6)That in the event that order three hereof be granted. Then the husband retain all his interest in his superannuation funds and the wife retain all her interest in her superannuation fund or funds. In the event that order three hereof be refused then such adjustment of the husband’s superannuation be made in favour of the wife.
(7)That the husband transfer to the wife 50% of his shares in Telstra 2 and Colonial.
(8)That the husband transfer control of the Australian scholarship group trust to the wife.
(9)That upon the wife relocating to Queensland the husband have contact with the children as shall be agreed upon but in default of such agreement as follows:-
(a)For two two-week brackets of contact each year until the children shall each have attained the age of five years or commenced their first year of primary school whichever shall be sooner and after that for half the school holidays each year.
(b)That the husband and wife contribute equally to the cost of travel for the purpose of contact.
(c)Unrestricted telephone contact to take place at reasonable times.
(d)In the event that the husband should relocate to Queensland and reside in close proximity to the wife and children then contact job in accordance with the order of this Honourable Court made the 14th day of February 2002 save that the Wednesday night contact shall cease.
As has already been indicated, although it was not her position at the outset of the case, during submissions, the wife’s counsel indicated that she would be prepared to delay her departure for Brisbane for a period of 60 weeks, in order to allow the husband to consolidate his relationship with the children. She also indicated that she was prepared to quarantine the sum of $3,000.00, from whatever amount she received by way of property settlement, in order to defray some of the husband’s expenses in having contact with the children, either in Brisbane or Darwin.
In his case outline document[4], the husband indicated that he seeks the following orders:
[4] Case outline filed by the husband the 8th of July 2003
(1)That the children of the marriage Z A B born
13 July 1998 and T K B born 2 August 1999 live with the respondent husband and that he be responsible for their day to day and long term care, welfare and development.(2)That the applicant wife have contact with the said children:
(a)Each alternate weekend from 5.45pm Friday until 5.30pm Sunday,
(b)Overnight each Wednesday evening from 5.45pm until 8.00am Thursday morning,
(c)For one half of the Northern Territory June/July school holidays commencing with the first half in the year 2003 and alternate years thereafter otherwise the second half,
(d)For one half of the Northern Territory Christmas school holidays being the first half of the 2003/2004 holidays and alternate years thereafter otherwise the second half of the said holidays save that on any Christmas Day that the children are in Darwin the parties share equally time with the children on Christmas Day,
(e)For the Northern Territory third term school holidays in 2003 and alternate years thereafter and in other years for the Northern Territory first term school holidays,
(f)Where Wife’s Day falls on a non-contact weekend the wife have contact with the children from 9.00am until 5.00pm on Wife’s Day,
(g)Where Husband’s Day falls on a contact weekend the children return to the husband at 9.00am on Husband’s Day,
(h)Telephone contact at all reasonable times; and
(i)At other times as agreed.
(3)That for the purposes of contact the wife collect the children from and return the children to the husband’s residence but not enter the husband’s residence without the express invitation of the husband.
(4)That the wife provide 48 hours prior notice by telephone if she is unable to exercise contact on any occasion.
(5)That in the event that either party takes the children on a holiday to a destination more than 100 kilometres from the Darwin GPO that party provide the other party with an itinerary and the address and telephone number of any place where the children will be staying.
(6)That each party keep the other informed at all time of his or her current residential address and telephone number.
(7)That each party is restrained from and an injunction be granted restraining each of the parties from denigrating the other party to or in the presence of either or both children of the marriage.
(8)That in the event that either of the said children is hospitalised the party having care of that child shall forthwith notify the other party who shall be permitted to visit the child in hospital.
(9)That by way of property settlement:
(a)That in the event that the children of the marriage will continue to live with the wife:
(i)The proceeds of sale of the former matrimonial home presently held in trust be divided by paying to the husband the sum of fifteen thousand seven hundred dollars ($15,700.00) and by dividing the balance equally between the parties; and
(ii)That the husband transfer all his right title and interest in 1000 Telstra shares to the wife.
(b)That in the event that the children of the marriage will live with the husband that:
(i)The whole of the proceeds of sale of the former matrimonial home presently held in trust be paid to the husband for his own use and benefit absolutely; and
(ii)That the wife transfer all her right title and interest in 1000 Telstra shares to the husband.
(c)That otherwise each party retain all the assets and financial resources currently in his or her possession including their entitlements to superannuation and the husband retain his Commonwealth Bank shares.
The documents relied upon
The wife relied on the following documents:
i)An affidavit of herself filed on the 17th of March 2003;
ii)
A statement of her financial circumstances filed on the
8th of July 2003;
iii)An affidavit of her stepfather A W J filed the 8th of July 2003.
In addition, the wife called oral evidence from her mother, S L J.
The husband relied on the following documents:
i)Three affidavits of himself filed on the 27th of June 2002, 30th July 2002 and the 8th of July 2003;
ii)
A statement of his financial circumstances filed on the
8th of July 2003;
iii)An affidavit of his mother, K M B filed on the 8th of July 2003;
iv)An affidavit of P A C filed on the 8th of July 2003;
v)An affidavit of J C filed on the 8th of July 2003.
Both parties were represented by counsel at the hearing before me, which took place on the 9th and 10th of July 2003. Both parties were extensively cross-examined by counsel for the other party, as were each of the other deponents of the affidavits relied upon, as well as Mrs J.
Ms Martins was required for cross-examination by both parties. She was unable to be in Darwin at the time of the hearing and gave her evidence by way of a telephone link from Jabiru.
The evidence
The parties are both critical of the other’s ability to care appropriately for the children. At the heart of this dispute are their different backgrounds and personalities and above all, their different approaches to parenting. The husband is an orthodox and somewhat old fashioned parent, who requires definite boundaries to be set, so far as the children’s behaviour is concerned. The wife adopts a less interventionist approach to parenting. The parties are in dispute as to whether or not this difference in approach is having consequences for the children, particularly Z. The husband believes that Z is currently manifesting a number of disturbing traits, particularly aggression, which flow from the wife’s failure to set proper limits on his behaviour. The husband’s mother, K B and Mr and Mrs C support his position to some extent and it is an issue that was addressed in some detail by Ms Martins. On the other hand, the wife asserts that both the children, especially Z, are lively and happy children and her care and discipline of them are appropriate. However, her stepfather, Mr J, does believe that she finds Z’s behaviour challenging from time to time, and this is one reason he puts forward in support of the wife’s proposal to move from Darwin to Brisbane, where she will have more familial support.
Both parties assert that during the marriage, he or she was more actively involved in the day to day caring of the children than the other. The wife portrays the husband as essentially disinterested in the children, preferring to pursue his business and computer interests. The husband portrays himself as playing an active role in caring for both children, in particular attending to their needs at night. As is common with many cases that come before this Court, there is a high level of tension and hostility between the parties and, as a result, each has tended to reconstruct their lives together and assess the other’s motives and proposals, through a prism of hostility. I consider the evidence, when taken as a whole, indicates that both have been extensively involved in the care of the children and as a result each of them has a close bond with them.
The husband presented as an honest and emotional witness, deeply affected by these proceedings and often moved to tears. His evidence, in particular in regards to the children, was considered and thoughtful. I do not think he is motivated in these proceedings by any malice for the wife. He does however, view her with suspicion and essentially regards her as being flighty and irresponsible. I believe there is some basis for his concerns in this regard. Of the two parties, I consider that the husband is, to some extent, the party more capable of putting the children’s needs before his own. He is however quite emotionally vulnerable and was severely wounded by the end of his marriage and its consequences for him. At the present time, he is not in such a state of mind that it is easy for him to think flexibly or consider long-term proposals in respect of his life generally and the children specifically. He has reached an age where it is not easy for him to consider change.
I also consider that the husband has a more conservative attitude towards money than the wife. As a result he is likely to have a more reliable recollection of how the parties allocated their funds during the marriage. Certainly he seems to have had access to more financial records than her.
I thought the wife was generally an honest witness, but I did not always believe her evidence. In particular, I did not believe her when she said that she was not motivated, in any way, in her reasons for wishing to move to Brisbane, by a desire to live further away from the husband. The major concern I had about the wife’s evidence was the lack of consideration in it, in respect of the long-term needs of the children, particularly their need to maintain a relationship with their father. Other aspects of her plans were vague and not particularly well thought out. In many ways, she seemed to be the type of person who responded to her immediate wishes, without much consideration for their long-term consequences, both for herself and others. There is a gap in ages of 18 years between the parties and inevitably this factor alone makes the husband liable to be less flexible and more conservative in his outlook and the wife more adaptable and open to change.
In this case, findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of each of the witnesses concerned. In what follows, statements of fact constitute findings of fact.
a) Background
The husband was born on the 3rd of June 1956 in South Australia. However, he came to Darwin, with his family, when he was 10 years old. As a result, he has spent most of his life in Darwin. His mother continues to live in Palmerston. He is a television and radio technician by trade. After completing his apprenticeship, he was employed by the Department of Transport and Works for a period of 15 years. However, he was made redundant from this position in 1992. Thereafter he worked for a company called Navcom Electronics and more recently he has been employed, on a part-time basis, by Darwin Amusements. He works 30 hours per week for Darwin Amusements and, in the main, services electronic amusements machines, such as jukeboxes and pinball machines.
The wife was born on the 26th of July 1974. Her stepfather was a member of the Armed Forces and, as a result, her family regularly moved around Australia. She spent two or three years living in Brisbane in her early teens and then lived in Sydney for a time. Her stepfather was posted to Darwin around the time she began her last year of High School. She completed year 12 in Darwin and has lived in the town ever since. She has lived the past 12 years in Darwin.
Although the wife completed year 12, she does not have any specific vocational training. In the past, she has obtained unskilled positions and has worked as a shop assistant and waitress. She has also been in the Naval Reserve. Briefly, she worked at an escort agency, where she met the husband. The parties began to live together in July of 1997 and were married on the 18th of July 1998. The marriage between the parties was dissolved by order of this Court on the 2nd of December 2002.
The parties separated on the 28th of September 2001. When the parties separated, the wife took the children with her from the former matrimonial home situated at 2/2 C C, Malak and moved into a unit in Nightcliff. The wife had raised the possibility of the parties separating in July of that year. However, the husband was shocked to discover that the wife and children had left the home in September.
In mid October of 2001, before any formal orders had been made in respect of the children, during a period of time of agreed weekend contact between the parties, the husband took both children with him to Brisbane, on a holiday with his mother. The husband did not provide any forewarning of his intention in this regard and, as a result, on the 16th of October 2001, the wife commenced proceedings in this Court, seeking interim residence of the children and a recovery order. An ex parte order was issued on the 16th of October 2001. The children where subsequently returned to the wife and, on the 14th of November 2001, orders were made, on an interim basis, that the two children should live with their mother and have contact with their father, each alternate weekend and on each Wednesday evening from 5.30pm until 9.00am the following Thursday. In addition, an order was made restraining the husband from dealing with any of the matrimonial property, in particular the former matrimonial home at C C, Malak and any shares held in his name.
Subsequently, in February of 2002, the parties agreed that the Malak property should be sold and the proceeds placed in trust pending the outcome of their competing property applications. Of more importance, on the 25th of February, 2002, the parties reached agreement in respect of final arrangements regarding the care of the children and this agreement was formalised in an order of the Court made on that day. Pursuant to the orders, the children were to continue living with the wife and the husband was to have contact with them each alternate weekend from 5.45pm on Friday until 5.30pm on Sunday; on every Wednesday night from 5.45pm until 8.00am the following Thursday; and for half of the mid year and Christmas school holidays in each year; as well as for defined portions of the other school holidays. At that time, the wife had not indicated any desire to relocate to Brisbane. The circumstances surrounding the recovery order and the ensuring residence proceedings were extremely traumatic for the parties concerned and exacerbated tensions between them. In these circumstances, it was greatly to the credit of the parties that they were able to resolve issues regarding the care of the children in February of 2002.
However, arrangements between the parties were not without difficulties. An incident occurred in late June of 2002, which serves as a useful example of the differences between the parties in temperament and outlook. The wife had made friends with a couple, who had made plans to purchase a yacht in Perth and sail the vessel back to Darwin over a three week period. She was invited to join the trip. She herself has little sailing experience and her maritime knowledge is confined to 15 foot aluminium fishing dinghies. She was desirous of including Z and T in this extended sailing trip. Given the children’s ages and the lack of sailing experience of the wife, the husband objected. I can well understand why the husband would think that such a venture was foolhardy. I made orders preventing the wife from taking the children on the proposed sailing trip, after the husband made an application to prevent it. In any event, the trip came to nothing. In my view, this incident is indicative of a propensity on the part of the wife to give into impulse and not consider the long-term implications of her plans, either for the children or for others. Overall my impression is that the wife does not have a great deal of regard for the husband and particularly for what he has to offer the two children concerned.
At this stage, in mid 2002, the parties wished to see if they could resolve the property issues between them by way of mediation. However this was not possible. The property proceedings were fixed for final hearing in February of 2003. However, the hearing did not proceed on the date allocated because around this time, the wife indicated that she wished to move with the children to Brisbane. This precipitated the husband to seek orders that the children live with him. Both parties considered it appropriate that a family report be prepared and this could not be done in the time frame available, prior to the February hearing.
At the present time, the wife is living in accommodation rented from the Northern Territory Housing Commission, situated at 12 C C, Gray. She is presently in receipt of a sole parent pension and some child support from the husband. From time to time, she works on a casual basis at the Gray Childcare Centre. The husband is living in rented accommodation at 9 H S, Nightcliff. This is a small one bedroom unit. Z is currently attending pre-school and T will start pre-school later this year. Both children are in good health.
b) The financial history of the parties’ relationship
There is no dispute between the parties that at the outset of the relationship between them, the husband was significantly better off financially than the wife. The husband was employed by the Northern Territory Government between 1981 and 1992. Initially he was entitled to membership of Comsuper, that is the Commonwealth Governments Employees Superannuation Scheme. He contributed to this fund between March of 1981 until the 25th of December 1986. At that time he was given the option of deferring his benefits or rolling them into the Northern Territory Government Employees Scheme. He elected to defer his benefits and, at the present time, he is entitled to receive the sum of $33,602.00, when this fund vests. He has not contributed in anyway to this fund since he deferred his benefit, which has grown as a result of interest generated by the fund. However, the corpus of the investment was acquired prior to the time the parties met.
Between 1987 and 1992, the husband contributed to the Northern Territory Government Employees Superannuation Scheme. When he was made redundant, he elected to vest his superannuation with this fund. He received a redundancy package from the Northern Territory Government, worth approximately $80,000.00. He used part of this package to establish a Colonial Mutual Life Insurance and Superannuation policy. As at the 30th of June 1997, again prior to the time he met the wife, he had the sum of $11,895.00 in this fund. Between 1992 and 1996, both the husband and his then employers Navcom Electronics, contributed to this fund. The husband stopped making voluntary contributions to the fund in 1997, but since that time his employers have made the required compulsory payments. At the present time, the Colonial Mutual fund has grown to $43,270.00. The growth in the fund relates to the period of time during which the parties formed their relationship.
In 1992, the husband used part of his redundancy package to purchase a five acre plot of land at Humpty Doo. Subsequently, he constructed a house on the property, borrowing $25,000.00 from his mother to assist with the construction costs. The husband’s first marriage ended in 1993, after a period of 8 years. He owned the Humpty Doo property in his sole name and it was unencumbered. He borrowed the sum of $50,000.00 to pay out his first wife her entitlements pursuant to the marriage. He subsequently borrowed other sums to complete improvements on the property. When the parties commenced their relationship, the husband owned the Humpty Doo property; a motor vehicle; some furniture; a tractor and had his entitlements with Comsuper and Colonial Mutual. All this property was valued at a sum in excess of $250,000.00. The wife owned a motor vehicle of modest value and some furniture. When the parties began their relationship, she moved in with the husband at his property at Humpty Doo. Previously she had been living in rented accommodation in Darwin.
When the parties began their relationship, the wife was working as a part-time sales person at Target. She stopped this work prior to the birth of Z. Following Z’s birth, the wife suffered postnatal depression. Z himself was a difficult child to nurse as he suffered from reflux. The wife felt isolated in the Humpty Doo property and the parties decided to sell it. It was sold in September of 1999, shortly after T’s birth. After repayment of the various loans associated with the property, the parties received the sum of approximately $70,000.00 from the sale. Thereafter, they lived in rented accommodation in Nightcliff.
The wife was engaged in the full time care of Z and T and the husband worked on a full-time basis for Darwin Amusements. He also became involved in the selling of Amway Products and established two internet businesses. The husband never made any significant sums of money from Amway and both internet businesses were unsuccessful and resulted in the husband losing his capital of $8,000.00.
The parties purchased the former matrimonial home at 2/2 C C, Malak for the sum of $127,000.00. The purchase was financed by way of $40,000.00 from the proceeds of the sale of the Humpty Doo property and the rest was borrowed. Another $4,000.00 was used to complete improvements to the property. The parties also bought Telstra shares worth $7,500.00. Again the purchase of these shares was financed by the proceeds of the Humpty Doo property.
Around this time, the husband purchased the gold and diamond ring for the wife, to which reference has already been made. Again it was purchased with part of the proceeds of the sale of the Humpty Doo property. The purchase price of the ring was $10,300.00. A valuation certificate was obtained in June of 2000 by the parties, which indicated that the ring was valued at $11,500.00. Given the extent of the assets available for distribution between the parties, this is a significant sum. However, no up to date valuation of the ring has been obtained and, accordingly, in my view, there is uncertainty about its exact value. However, the far greater difficulty in respect of the ring is its current whereabouts.
It is the wife’s position that in July of 2001, when she had decided to leave the marriage, she took the ring off her finger and left it in the bathroom of the former matrimonial home. She deposes that she does not know what happened to it thereafter. The husband denies that the ring was left there and he believes that the wife still retains it and, accordingly, it should be added into the parties’ pool of matrimonial assets and accounted in favour of the wife.
Again, the issue of the ring is indicative of the high level of suspicion between the parties. The husband points to the wife’s initial statement of financial circumstances, which was filed by the wife on the 9th of November, 2001. This document indicates that the wife had in her possession a personal asset that is described as a “diamond”, worth $3,000.00. In her evidence, the wife had no satisfactory explanation for what this item was, however, she asserted that it most certainly was not the gold and diamond ring.
Given the uncertainty about the whereabouts of the ring at present, the exact value of it, and my concerns that to include it in the pool of assets would, due to smallness of the pool, potentially distort the outcome of the property proceedings, I do not believe that it is appropriate to add back the ring into the parties’ pool of assets. I do however, have grave suspicions regarding the wife’s explanation as to what happened to the ring. However, the potential consequences of including the ring in the parties’ pool of assets, given the uncertainty about its current whereabouts, are such that, in my view, it would be unfair to include it, notwithstanding my suspicions. I have also borne in mind the fact that the ring was essentially a gift from the husband to the wife.
As has already been indicated, the husband found the consequences of the parties’ separation very difficult to deal with. In September of 2001, he decided to leave his employment with Darwin Amusements. He consulted a doctor and was provided with a medical certificate that indicated that he was unfit for work. The husband described himself as feeling “very down”. He was prescribed a mild sedative and sleeping tablets. Due to his unemployment, the husband had no income. As a result, he drew down the sum of $19,500.00 from the mortgage secured against the former matrimonial home. He used this sum in order to meet his living expenses; pay the recurrent mortgage payments due on the Malak property; and pay child support. The wife is deeply suspicious of him in respect of this matter and it seems that this was the catalyst for her obtaining the injunction from the Court in November of 2001, restraining him from further dealing with the property and other items of matrimonial property. I can well understand the wife’s suspicion of the husband at this stage. Up to this time, the husband had been acting on his own behalf in the proceedings and appeared deeply affected by them. His behaviour, at the time, appeared to lack reason and the tenor of much of the material he filed at this time can only be described as venomous, so far as the wife was concerned. However, I accept his evidence that he was not able to work at this time because of his emotional reaction to the separation. As I indicated earlier, I believe him to be a somewhat sensitive person.
In May of 2002, the parties agreed that the Malak unit could be sold. However, the proceeds of sale, a sum of $22,995.12 have not been distributed between the parties and are currently being held in the trust account of the conveyancer concerned. These proceeds have produced a modest amount of income.
The husband failed to submit tax returns for the financial years ending 30th of June 1995 to the 30th of June 2001, at the time the returns were due. In 2002, he lodged all his outstanding tax returns. As a result of his default in this regard, he was assessed to pay back tax in an amount in excess of $13,000.00, payable in May of 2002. At the present time, the tax liability has been reduced to $10,204.00.
Apart from the issue of the gold and diamond ring, there is no great dispute between the parties as to the value of the various items of matrimonial property that are available for distribution between them. However, the parties differ as to the approach that is to be taken to those items. The wife seeks to include the husband’s Comsuper entitlements as well as his entitlements to superannuation pursuant to the Colonial Mutual Scheme in the parties’ pool of assets. It is the husband’s position that all the superannuation that he accrued prior to the commencement of the relationship, but particularly the Comsuper, should be quarantined from the pool of assets. He also asserts that the full extent of the taxation debt should be added back as a liability against those assets, rather than at its present amount.
At the present time, the wife has in her possession assets of modest value. These include her motor vehicle; her superannuation worth approximately $3,000.00; and a parcel of AMP shares. Regardless of whether the full amount of the husband’s superannuation is included or otherwise, the pool of assets available for distribution is small indeed and there can be no doubt that the husband’s financial position has significantly eroded from the time the parties’ began their relationship.
c) The parties’ present prospects and future plans
The husband is currently aged 47. He is in good health and has recovered his emotional equilibrium following the parties’ separation. Certainly, he is no longer receiving any medical treatment or medication. He returned to work with Darwin Amusements in February of 2002, after an absence of about six months. During that time, Darwin Amusements employed another technician to replace him. Accordingly, at the present time, he is only working on a part time basis for 30 hours per week. However, his employers clearly valued his services highly enough to want to retain him in February of 2002. The husband currently earns a gross weekly income of $629.00. This equates to an annual salary of about $32,000.00. His major expense each week is his rent of $145.00. He has been assessed to pay child support in respect of Z and T at a rate of $88.00 per week. He is currently in arrears in a sum of approximately $2,200.00.
The husband is generally pessimistic about his employment outlook. He believes that his electronic skills are somewhat out of date now as the trend of modern electronics is to replace items, especially circuitry, with new rather than to seek to repair them. He described himself as not a particularly ambitious person, who was not seeking advancement in his line of work. He believed his skills in repairing items such as pinballs, jukeboxes and amusement rides were fairly limited in their scope for providing him with ready employment. For that reason, he did not believe that it would be easy for him to get a job outside of Darwin, where he had lived and worked for in excess of 30 years and knew people in his trade. He believed that these difficulties would be compounded by his age. Ideally, the husband would like to be self-employed and able to work from home. This was the appeal of operating an internet business. However, his experience in this line of endeavour has not been fruitful to date.
In addition to his not inconsiderable tax bill, the husband currently owes his solicitor a sum of between $10,000.00 and $12,000.00 in respect of legal fees incurred to date and anticipates that he will incur a further liability of $2,500.00 in respect of the hearing. The end of the marriage between the parties has left the husband emotionally and financially exhausted. As he has never been a particularly ambitious person, who does not relish the stress of managerial positions or change generally, I can well understand his trepidation at the prospect of personally having to move to Brisbane.
The husband enjoys a close relationship with his mother, who lives in suburban Palmerston, near the present home of the wife and the children. The husband visits her with the children each fortnight. The husband has other relatives, including his father and two sisters, who live in South East Queensland. As a result, Z and T have cousins who live either in Brisbane or fairly close by. However, all of the husband’s close friends live in the Darwin area.
The husband concedes that his present accommodation is not suitable for the children on a long term basis. If he is successful in his application for the residence of the children, he understands that he will be able to obtain suitable accommodation for the children and himself, probably in the Palmerston area, through the Northern Territory Housing Commission.
The wife is in her late 20’s and is in good health. She has lived in Darwin for the whole of her adulthood to date. She left her parents’ home as soon as she was able to and has lived independently ever since in Darwin. Her parents, due to Mr J’s employment with the army, have not lived in Darwin for many years. I accept that the wife enjoys a close relationship with her parents and talks to them by telephone several times each week. I also accept that they have visited her and the children in Darwin from time to time. The wife struck me as outwardly confident. Certainly, she conceded that she was not a shy person and was able to make friends quite easily. However, she asserted that she had few close friends in Darwin, but conceded she had many acquaintances. It is not her position that she has any particularly close friends in Brisbane. The attraction of the city for her is that it is the home of her parents, rather than any other emotional or historical connection. She has no recent experience of living in the city.
The wife has few formal employment skills. In the past she has worked in the main as a shop assistant and waitress. Her current financial position is not a strong one, as she is largely dependent upon social security. After payment of her rent and necessary living expenses for herself and the children, she has little if any surplus. In the event that she does obtain some casual employment, her benefits are curtailed and in addition she incurs liability for childcare costs. It is her position that she is presently caught in a “poverty trap”, from which she wishes to escape. She believes that living in Brisbane will provide her with a significant prospect of financial improvement. It is part of her case that daily living expenses are considerably lower in Brisbane than in Darwin. Although no formal evidence was provided to me in this regard, I accept that, as a location remote from major population centres within Australia, the cost of living in Darwin is higher when compared to a city such as Brisbane. However, overall, I do not believe that this a significant factor in itself.
If she and the children do live in Brisbane, initially they would live with her mother and stepfather at their home at B P. She would not be required to pay rent there and this would be a significant saving. However, the wife has not lived with her parents for many years. Both she and they concede that it is unlikely that she would continue to live with them for any period greater than six months. Thereafter, she would most likely seek accommodation on the private rental market in a suburb no more than half an hour’s drive away from B P. The wife’s evidence was that access to public housing in Queensland is subject to a waiting list of between 3 and 4 years.
In the long term, the wife wishes to engage in tertiary study to obtain a batchelor of education degree and so qualify as a teacher, although whether primary or secondary, is not clear to me. The wife has been accepted into such a course at the Charles Darwin University in Darwin. She has not made inquiries in Brisbane as to whether or not she could gain entry to an equivalent course there. However, as there are three universities in Brisbane, she believes that she would have no difficulty. However, her plans in regards to studying in Brisbane are not fully formed at this stage.
One of the greatest advantages from the wife’s perspective, of her moving to Brisbane, is that her parents would be available to assist her with the care of Z and T, whilst she was either at work or pursuing her studies. This would relieve her of the burden of paying for childcare. It is also her position that work of the kind she has done in the past, is more readily available in Brisbane than Darwin, although once again, she did not provide any formal evidence in this regard. However, overall, she believes that the opportunities available to the children and herself of living in a bigger centre, with better facilities, are likely to be considerable. She believes that she is likely to be far happier in Brisbane, where she will be living close to those whom she loves and by necessary implication, this will have flow on benefits for her care of the two children concerned.
d) Care of the children
Following Z’s birth, the wife suffered from post-natal depression and it was thought helpful that she should return to work sooner rather than later. She was employed on a part time basis at Target. Whilst she was at work, Z went to childcare. The parties shared the cooking, but the wife did the majority of the housework. The husband is something of a night owl and spent a lot of time working on his computer in the evenings. He would attend to Z’s needs at night. This practice continued after T was born. I accept that he had a significant input into the care of both children, prior to the parties’ separation and enjoys a close relationship with both of them. However, he continued to work at Darwin Amusements during the day and was the family’s major source of financial support during the marriage.
Since September of 2001, there is no dispute between the parties that the wife has provided the vast majority of care for the two children concerned. This arrangement was formalised by orders of the Court, made with the consent of both parties, on the 25th of February 2002. Ostensibly at least, this suggests that the husband had no serious concerns about the wife’s ability to care for the children at this time.
However, it is his position that since those orders were made, he has noticed a number of behavioural problems developing in the children and he has become more and more concerned over time. These include naughty and disruptive behaviour and of more concern to him, aggressive statements and behaviour, particularly by Z. The husband was concerned enough about these behaviours to consult a psychologist, Ms Louise McKenna, for advice on how to manage the children’s behaviour. I do not believe there is anything sinister in this regard. The husband did not take the children to Ms McKenna and was seeking advice for himself, as a concerned parent. Counsel for the wife characterised the involvement of Ms McKenna as an attempt on the husband’s part to “dig up dirt” on the wife. I do not accept this.
It is the husband’s position that the children’s behaviour problems stem from the wife’s inability to set consistent and age appropriate boundaries for the children or discipline them effectively. It is the husband’s position that these problems will become more severe as the children grow older. This is the principle reason why he believes a change of residence at this stage will be in the long term best interests of the children. However, I think I would be naïve if I did not think the wife’s proposed relocation of the children from Darwin to Brisbane was the major impetus for his application.
I accept that the husband is a concerned and loving parent. Since the consent orders were made in February of 2002, the husband has enrolled the children in swimming lessons at the Nightcliff pool. As a result, the husband takes the children to swimming lessons both on his contact weekend and on the other Saturday. He also has contact earlier on each Wednesday than envisaged by the orders, to enable him to take Z to “brain gym”, which is an activity organised by an optometrist to assist children with their coordination and ability to process visual information. Areas in which the husband believes Z is lacking.
The husband has been criticised by the wife for his failure to utilise his entitlement to extended periods of block contact, during school holiday periods. The husband only had contact to the children for 4 days over the Christmas holidays and has not had any other extended periods of time with them. He is however entitled to approximately six weeks paid leave at present. I do not believe this is indicative of a disinterest on his part in respect of the children. Rather, he sees it as being somewhat artificial to speak of holiday contact, in respect of the children, when they do not as yet attend school. He points to the fact that he has continued with his weekend and overnight contact throughout the period since the parties separated. I believe that he is somewhat frugal by nature and given the pressing difficulties of his current financial position, I can understand why he would want to stockpile his holidays against future exigencies. Accordingly, I do not accept that he is disinterested in having contact with his children for extended periods of time.
The parties do not have an easy parenting relationship with one another. I have no doubt that these difficulties have been exacerbated by the wife’s proposal to move with the children to Brisbane. The husband conceded, rather begrudgingly, that the wife was a “reasonable mother”. However, he did not doubt that the children love their mother very much. He also indicated that both Z and T are basically happy and healthy children, who are very close to one another. Overall, he believed it was easier for him and the wife to communicate in writing, rather than face to face. One of the reasons that there have been difficulties between the parties, is because the wife has subsequently formed a number of friendships with males, who have spent time at her home. The husband believes that this is somewhat unsettling for the children and Z in particular. The husband has made at least one complaint to Family and Children’s Services about the wife’s abilities to properly care for the children. His complaint resulted from things that the children had told him, which he now concedes he misconstrued. In particular, an allegation that one of the wife’s boyfriends had harmed Z. Because of the parties’ different personalities and particularly their different styles of parenting, I believe that there will inevitably be a residual level of mistrust between them for some time to come. The husband will continue to harbour doubts about the wife’s capabilities in respect of the children and the wife will feel that she is subject to unwarranted scrutiny from him.
The wife presented as a concerned and loving parent. She conceded that Z had behaved very aggressively around the beginning of 2002, which she attributed to uncertainty, following the end of his parent’s marriage. She sought professional assistance from a psychologist at this time, both for herself and the children, and, following this intervention, Z’s behaviour had changed dramatically. She finds taking him fishing particularly effective in calming his moods. She believes that she has effective strategies for managing the children’s behaviour, ranging from the withholding of privileges and “time out”, to light smacking. She believed that too much had been made of some statements made by Z to his grandmother and categorised the statements as those of a lively and high-spirited child. To her credit, the wife indicated that both children loved their father and looked forward with great enthusiasm to their periods of contact with him. She agreed that both children had a very close and loving bond with their father.
One example in the evidence struck me as being indicative of the different parenting styles of the parties concerned. The husband gave evidence of his concern regarding Z’s behaviour on one occasion, when he was apparently asked by his father to eat a meal at the table rather than in front of the television, as Z would have preferred. The husband indicated that Z threw a violent tantrum at this request, which caused the husband great concern, because of its intensity. In contrast in her evidence, the wife indicated that she did not require the children to remain sitting at the table, whilst they ate their meals, but rather was content for them to come and go, as they pleased. This example confirmed my view that the husband can be regarded as being a conservative or orthodox parent.
Overall, the wife believes that both Z and T are lively and happy children, whose behaviour should give no cause for concern. She believes that the husband uses these examples to undermine her confidence as a parent and points to what she regards as his malicious complaint to Family and Children’s Services, as being supportive of her view in this regard. However, she indicated that she would be willing to undertake a parenting course or seek other professional guidance in respect of her parenting, if it was considered appropriate.
e) Mr and Mrs J
Mr and Mrs J presented as concerned and loving parents and grandparents of their daughter and grandchildren respectively. After Mr J’s 28 years of service in the Australian Defence Forces, they are financially secure and now retired. They have a comfortable and well appointed house in B P in Brisbane. Both Mr and Mrs J enjoy a close relationship with the wife. I accept that she telephones them both at least two or three times a week. I also accept that the Js are a close family. Z and T are Mr and Mrs J’s first grandchildren and understandably, they each have a deep and abiding love for and interest in the children. At the present time, one of the wife’s brothers is living with Mr and Mrs J in Brisbane, but he will soon relocate to the Gold Coast. In the past, he has lived in Darwin and he and the wife enjoyed a close relationship. The wife has another brother, who lives in Alice Springs.
It is Mrs J’s perception that the wife is very lonely in Darwin and is under considerable pressure as a single parent there. She believes that it would be preferable for her daughter to move to Brisbane, where she would be available to support her. However, she did not believe that her daughter was emotionally fragile, to any significant degree but had coped reasonably well with the consequences of the separation. She believed that both Z and T had exhibited some minor behavioural problems, but these were largely due to them being unsettled by the current contact regime with their father. Both Mr and Mrs J conceded that their daughter was of an independent frame of mind and would most likely leave their home as soon as she was able to find her own accommodation in Brisbane. In Mr J’s assessment, the greatest benefits of the wife relocating to Brisbane, were as follows: he and his wife would be available to care for the children whilst the wife was studying; the cost of living was much cheaper in Brisbane than in Darwin; and the wife would be able to gain emotional support from him and his wife and from her two sisters, who live at Mount Tamborine and Eva Heights respectively, as well as her brother. It was Mr and Mrs J’s impression that their daughter was deeply unhappy in Darwin. They each noted that she frequently cried during her telephone conversations with them.
Of particular note is the fact that Mr J indicated to Ms Martins, the family report writer, some concerns he had about the wife’s ability to manage Z’s behaviour adequately. In general terms, Mr J believed that the wife found Z’s behaviour stressful from time to time and this was another factor in support of her moving from Darwin to Brisbane. He believed that Z responded better to male authorities figures than female ones and he believed that he could play a useful role in this regard.
Both Mr and Mrs J have given consideration to moving from Brisbane to Darwin. This I regard as a mark of their concern for their daughter. However, due to the fact that Mrs J suffers from diabetes and haemachromatosis, which is adversely effected by the tropical climate of Darwin, this is not a realistic option. However, they indicated that in the event that the wife continued to live in Darwin, they would continue to visit regularly each year.
f) Mrs K B
Mrs K B is aged 69 and is in good health. She too is obviously devoted to her two grandchildren, Z and T. As one would expect, she is very supportive of her son’s application to be granted the residence of the children. She sees them on a regular basis, during the father’s fortnightly contact. She speaks highly of her son’s ability to manage both Z and T and arrange proper activities to engage them during periods of contact.
There can be no doubting that she does not have a particularly approving attitude towards the wife and attributes what she considers unfortunate aspects of the children’s behaviour to the wife’s parenting of them. In particular, Mrs B is concerned about what she regards as violent and angry outbursts on the part of the children. In particular, Z has threatened to boil up water and throw it over her and one of the children threatened to make her “walk the plank”. In isolation, it is difficult to know what weight should be ascribed to these matters, which might be described as high spirited or naughty rather than sinister.
g) Mr and Mrs C
Mr and Mrs C were thoughtful and kindly witnesses, who are obviously well disposed towards the husband. They regularly see the husband and the two children during the husband’s fortnightly contact periods. Mr C described Z and T as “lovely kids”. He also confirmed that the children are physically affectionate towards their father. Certainly, neither Mr nor Mrs C have noted any cause for concern in the husband’s interaction with the children.
h) The Family Report and the evidence of Ms Martins
The family report was prepared by Christine Martins. Ms Martins is a psychologist. She holds a batchelor’s degree in applied psychology as well as a graduate diploma in the same discipline. She has been a psychologist for the past eleven years and is a member of the Australian Pyschological Society. At the present time, she is private practice as a psychologist in Darwin and has been for the past three years. Prior to that she was an industrial psychologist for about three years and prior to that again, was a psychologist at Relationships Australia. In the past she has prepared about five or six family reports for this Court and the Family Court. In her practice, she has gained experience in assessing children and their relationships with their parents. I found her report to be thorough and well considered.
I found her evidence useful and persuasive. Neither party sought to challenge Ms Martins’ expertise to provide a family report in these proceedings.
During the course of the preparation of her report, Ms Martins observed both children with each of their parents at the Family Court as well as in their domestic settings. Ms Martins also interviewed Mrs K B and Mr J.
From her observations of both parties, Ms Martins was of the view that each of them had the capacity to provide for the emotional, physical and intellectual needs of the children. She considered that both Mr B and Ms B were responsive to the children’s needs. This led her to the view that the children had a close bond with each of their parents, as well as with their paternal grandmother and a network of family friends in Darwin. Ms Martins was of the view that these bonds needed to be maintained through regular and frequent periods of contact. Accordingly, she was concerned about the implications for the children of the wife’s proposed move to Brisbane. This led her to the opinion that the children’s best interests would be served by them continuing to live with their mother in Darwin, to enable regular contact to occur between the children and others presently significant in their lives, especially their father. She regarded it appropriate that the parties should continue to have joint responsibility for the children’s long term care, welfare and development.[5]
[5] See Family Report paragraphs 63; 67 and 68.
Ms Martins observed the children to be fractious and lively with their mother and that she (Ms B) used few restraining techniques in regard to them. Whilst Mr B adopted a more structured approach towards the children. She observed both Z and T to be demonstrative in their display of affection for their father and to be relaxed and placid in manner whilst with him. In her view both children were very fond of their father and close to him emotionally. As a result, she believed that he had a valuable role to play in their lives, particularly so far as “boundary setting and structure” were concerned.
Although Ms Martins conceded that she had not had sufficient time observing the children to assess the full nature of their personalities and, as a result, could not provide accurate advice in respect of coping strategies for the mother’s management of the children, she did believe that it was appropriate for Ms B to have some “coaching and mentoring” to be able to cope better with the children. She believed that it would be useful for Ms B to adapt her parenting and learn new parenting techniques for the children, regardless of where they lived in future.
Overall, Ms Martins was concerned about the reports that had been made to her by the husband, Mrs K B and, to a certain extent, Mr J of Z’s aggressive behaviour. On the basis of what she had been told and observed, she believed that it was appropriate for Z to undergo a paediatric review to ascertain whether or not there were any underlying medical conditions precipitating his behaviour. However, overall, she believed Z to be an affectionate and high-spirited child, who was not presently controlling his behaviour properly. She was concerned at the possibility of his behaviour deteriorating in future and considered that the wife’s proposal to relocate was likely to be enormously disruptive for him in particular. At this stage in the development of both children, she did not consider that telephone contact would be adequate alone for the children to have proper interactions with their father.
The general tenor of Ms Martins’ evidence was that she was critical of the wife’s plans to relocate because she believed Ms B’s plans had not been fully considered and, more importantly, their detrimental impact on Z and T had not been fully appreciated by her. Ms Martins pointed to the fact that the wife had been accepted into a university course in Darwin but had not investigated similar courses in Queensland as one example of this. Overall, Ms Martins considered that the wife was focusing on her own needs for family support rather than the needs of the children to have supportive parenting, particularly in the context of their fondness for their father and the obvious stability he provided them.
Ms Martins did not necessarily consider that being forced to remain in Darwin would have a detrimental effect on the wife’s state of mind. Although she considered that Ms B was emotionally needy and vulnerable, she believed that her coping skills were reasonably well developed and the evidence indicated that she had coped quite well in Darwin since the parties’ had separated. Ms Martins did not countenance a change of residence at this stage. But overall her preference was for the children to continue living in Darwin, where they could have easy contact with both their parents.
Although Ms Martins conceded that there was presently a strong bond between both children and their father and, at this stage, the children were unlikely to forget him, she believed that given the children’s present stage of development, not having physical contact with him for periods of between three and six months might disrupt their attachment to him over time. The children’s impressions of their father at this stage were likely to be malleable and their recollection of him was likely to dim, if they did not have frequent and regular contact with him. This was the major detriment of the wife’s proposal to relocate. So far as Z was concerned, she was of the view that it was important for him to have a regular father figure in his life, in order to enable him to develop appropriate notions of masculinity, as he grew older. She also considered it important for both children to be in a position to not only maintain their bonds with their father, but also develop them as they themselves matured, something that would not be possible without frequent and regular periods of contact. She believed that the crucial age for the development of these bonds for the children was between the ages of three and seven years. As a result, she was concerned at the potential of the wife’s proposed relocation to Brisbane to disrupt the bonds between the children and their father, which could possibly have serious implications for their emotional development as they grew older and in particular their ability to form proper attachments as adults.
For all those reasons, she was in favour of the children being in a position to have regular contact with their father. The consequence of this was her recommendation that the children continue to live with their mother in Darwin. She also recommended that the wife avail herself of professional assistance in respect of strategies to assist her with the children’s, but particularly Z’s behavioural problems and that an extensive paediatric review be conducted on him to ascertain whether or not there were any medical conditions underlying his behaviour. Given the lack of precision about the wife’s plans to move to Brisbane; the fact that she was coping relatively well in Darwin and had access to tertiary studies in the city; but overall, the serious implications for the children, given their current ages and obvious attachment to their father; Ms Martins did not favour the wife’s relocation to Brisbane with the children. As it was not proposed as an option by either party, Ms Martins did not consider the prospect of the husband himself moving to Brisbane.
The law applicable to parenting orders
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
i)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
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.
Section 75(2) factors – the prospective needs of the parties
I am now required to consider the various matters set out in section 75(2) and in particular to consider whether any further adjustment should be made in favour of either party. The section 75(2) factors are as follows:
a)the age and state of health of each of the parties;
b)the income, property and financial resources of each of the parties;
c)the physical and mental capacity of each of them to obtain meaningful and gainful employment;
d)whether either party has the care or control of a child of the marriage who is not attained the age of 18 years;
e)commitments of each of the parties that are necessary to enable the party to support;
i) himself or herself;
ii) and a child or another person that the party has a duty to maintain;
f)the responsibilities of either party to support any other person;
g)the eligibility of either party for a pension, allowance or benefit;
h)where the parties have separated or the marriage has been dissolved, a standard of living in all the circumstances is reasonable;
i)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of eduction or training;
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
l)the need to protect a party who wishes to continue that party’s role as a parent;
m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
n)the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
na) any child support under the Child Support (Assessment) Act that a party to the marriage has provide, is to provide, or might be liable to provide in the future, for a child of the marriage;
o)any other fact or circumstance;
p)the terms of any financial agreement that is binding on the parties.
Sub-section (a) – The wife is 28 years of age and is in good health. The husband is aged 47 years of age and is in good health. He was unable to work for a period of six months following the parties’ initial separation. However, he provided no detailed medical evidence in respect of this period. His close friend, Mr C, deposes that the husband has come to terms with the end of his marriage and is coping relatively well with it. Accordingly, I do not believe that the husband’s mental health is compromised in any significant way. Accordingly, I make no adjustment pursuant to this sub-section.
Sub-section (b) – The husband is a qualified electronics technician with over 25 years experience, including 15 years experience working for the Northern Territory government. At the present time, he is working on a part-time basis, in the specialised area of repairing pinball machines, jukeboxes and children’s electronic rides. He is secure in this employment. However, the husband himself is somewhat pessimistic about his prospects in this line of work. He describes a tendency on the part of consumers to be unwilling to repair electrical items but rather seek to replace them. He also deposed that there was a growing sophistication in the circuitry of amusement machines, especially in regards to computerisation, which he was not qualified to deal with. It seems clear that in recent years he has not taken any steps to improve his skills but has been content to remain at the same level. He describes himself as being “unambitious” so far as work was concerned. In the past, he was employed by a company known as Navcom and during this employment he was responsible for maintaining the radio communications in the Kakadu National Park. However, he found the pressures of being away from home regularly and the managerial aspects of the position stressful and for those reasons changed employment. At the present time, I am of the view that the husband will be able to earn an income at least comparable to that which he currently earns for the foreseeable future. I believe that his skills are reasonably transportable but I am uncertain as to whether or not he would easily obtain employment in another location or at a substantially higher salary.
The wife has experience in working in a number of unskilled positions, particularly as a shop assistant, waitress and childcare worker. Her income from these pursuits is likely to be modest for some time to come and her hours of work will be restricted due to her responsibility to care for the two children of the marriage. Her main source of income for the foreseeable future is likely to be social security payments and child support payments from the husband. If she does earn any income from any other sources, it will effect her entitlement to social security and other benefits, such as rent assistance. Even if she was able to obtain full-time work, she will most likely have the financial burden of having to pay for some form of childcare for Z and T. Accordingly, her financial position for the next three or four years at least is likely to be parlous. The wife plans to undertake tertiary study to gain qualifications as a teacher. I accept that she has the necessary ability to fulfil this ambition, although with two young children to care for, it will be a difficult row for her to hoe. In the long term, the wife believes that she will be able to secure her financial future by obtaining such a qualification. Accordingly, in the long term, her financial position may be better than the husband’s. In view of all these matters, but particularly the present disparity in income earning capacity of the parties, I believe that some adjustment is warranted in favour of the wife pursuant to this subsection.
As a result of the end of the marriage between the parties, they have each suffered a severe reduction in their standard of living. Both parties are currently living in rented accommodation, the husband having elected to sell the former matrimonial home. The vast majority of the parties’ assets available for distribution between them is in the form of superannuation, which cannot be accessed for a number of years. The end of these proceedings will not leave either of the parties with a substantial amount of cash. The wife is considerably younger than the husband. Accordingly, she need not actively address her mind to preparing for her retirement. She has many years before her in which to save for her retirement. The prospect of retirement is much closer for the husband, although he still has many years of active work before him. In any event, regardless of the outcome of these proceedings, at the present time there is not a large amount of superannuation available to the parties.
Accordingly, the income positions of the parties in the short term are likely to remain the same. In this sense, the husband is in a better position than the wife. In this regard, I bear in mind what was said by the Full Court in Clauson and Clauson:[28]
“It has long been recognised that in most cases the most valuable “asset” a party can take out of the marriage is a substantial, reliable, income-earning capacity.”
In this case, the husband has his trade. The wife has no skills to speak of at the present time. However, in the long run, she has the potential to obtain qualifications that will provide her with secure and well paid employment.
[28] Clauson and Clauson (1995) FLC 92-595 at page 81,911
Sub-section (c) – In my view, this is the most significant sub section in respect of determining whether or not there should be any further adjustment in favour of the wife. As a result of the orders made in this case, she will continue to have responsibility for providing the vast majority of the day to day care for Z and T, who are not as yet attending school. Accordingly, that is a responsibility that will reside with the wife for many years to come. This will mean that the wife will have to carefully budget her financial resources for the next few years, particularly if she is undertaking tertiary study. The wife, of course, will not bear the financial responsibility for maintaining the children alone. She will be entitled to claim child support from the husband, as indeed she has done. However, it must not be forgotten that the payment of child support in no way compensates the residence providing parent for the loss of career opportunity and the inevitable restrictions upon working hours and choice of work, which the obligation to care for children usually entails. In this case, the wife will be responsible for most of the necessary arrangements entailed in caring for the children both before and after school and pre-school. In all these circumstances, it is appropriate that there should be an adjustment in the wife’s favour pursuant to this sub-section.
Sub-section (d) – Both parties have recurrent commitments which they have identified in their financial statements. They are modest indeed. The wife expends all her income in respect of providing for herself and Z and T. I accept her evidence that she ensures that neither child ever goes without any material necessity, due to her tightened financial circumstances, this involves considerable sacrifice on her part. However, it cannot be said that the husband himself incurs any unnecessary expenses. At the present time, he has a considerable debt to the taxation department. The payment of this debt cannot be indefinitely deferred. In my view, it is appropriate to make an adjustment in favour of the wife pursuant to this sub-section.
Sub-section (e) – Other than Z and T, neither party has responsibility to support any other person. I make no adjustment pursuant to this sub-section.
Sub-section (f) – I have made reference to these matters in respect of sub-section (b) (supra).
Sub-section (g) - As has already been indicated, one of the sad consequences of the end of the marriage between the parties is the inevitable reduction in the standard of living of both parties. Two households cannot live as cheaply as one. What is important in respect of this sub-section is that any drop in standard of living should not be borne disproportionately by one party, or by the children. It is the wife’s case that she is caught in a “poverty trap”. I accept that this is the case. However, the husband himself is not in a strong financial position. He began the relationship with the wife as the owner of property worth approximately $250,000.00, including a residential property. He now lives in rented accommodation. He leads a simple life, which apart from work is centred around his children. This is not a case where one party has suffered a disproportionate drop in his or her standard of living when compared to the other party.
Sub-sections (h) to (k) – The wife has not strictly brought an application for spousal maintenance. Her counsel, Mr Story, pointed to the fact that his outline of case document included in its a title a reference to spousal maintenance. Ms Allan, counsel for the husband, objected to the wife proceeding with such a claim as it had not been properly particularised. When pressed, Mr Story said that his reference to spousal maintenance was “part of the whole bundle” of his client’s application for property settlement. From this I take it he wishes to rely on these sub-sections in support of his client’s claim for an additional apportionment of the assets of the parties. Ms B wishes to study for tertiary qualifications which will enable her to be employed as a teacher. I have not been told as to how she proposes to pay for her studies and, in particular, whether or not she will be able to finance her studies through the Higher Eduction Contribution Scheme. In the longer term, it will be both to her benefit and the benefit of the children, if she does so qualify as it will alleviate her financial position and remove her from a situation where she is largely reliant on social security.
The marriage between the parties is a comparative short one. The wife had no great skills at its commencement and returned to the workforce on a part-time basis following Z’s birth. I do not think it can be said that the marriage has affected her earning capacity to any great degree. Similarly, when both the husband and the wife were working during the marriage, Z and T were placed in childcare.
It is a substantial plank of the wife’s case that she requires a greater share of the assets of the marriage at this stage to enable her to complete her studies and in the meantime adequately house herself and the children. To that extent, these are relevant considerations.
Sub-section (l) – This sub-section is directed towards the financial effects of one party continuing in his or her role as a parent. In this case, the wife will bear a greater responsibility for the care of the children than the husband. At the present time, the capacity of the wife to work is limited to some extent by her responsibilities as a parent. At present she is limited to part-time work at the Gray Childcare Centre. However, I believe that she would gladly work longer hours if it was possible for her to do so.
Sub-section (m) – Neither party is presently cohabiting with another person. Accordingly, this is not a relevant consideration.
Sub-section (n) – As I have already indicated, one of the difficulties in this case, is that a significant proportion of the property of the parties available to be divided between them is in the form of superannuation and, accordingly, its release to the parties is contingent on some future event. I have already concluded that the wife should receive 12.5% of the assets of the parties. In due course, it will be necessary to make a further apportionment in the wife’s favour pursuant to the section 75(2) factors.
It is the wife’s position that she should receive her entitlements pursuant to these proceedings in the form of the parties’ liquid assets. This will have the consequence of the husband receiving largely the parties’ contingent assets. It is the wife’s position that she needs an amount of cash to support herself and the children, particularly whilst she is studying. It will be necessary to determine what is the just and equitable approach to the disposition of the parties’ assets in the next stage of assessment. Otherwise, this sub-section is not generally relevant.
Sub-section (na) – The husband is assessed to pay child support in an amount of $88.00 per week. His response to this assessment has not been without fault and he is currently some $2,278.00 in arrears. However, he is paying off the arrears at the rate of $10.00 per week. It is the wife’s position that the husband’s track record in respect of payment of child support is poor and as a result it is unlikely he will provide a proper contribution towards the expenses of providing for Z and T in future. For my part, I accept his evidence that he felt unable to cope after separation and that this necessarily disrupted his ability to pay child support. I also accept that due to this disruption to his employment, he has not been able to obtain full time work. However, I believe that he is generally motivated to continue working. It is likely that he will continue to be a PAYG tax payer for the foreseeable future and as a result his level of income will be readily ascertainable. Accordingly, it is likely that the husband will continue to pay child support as assessed in future. As the Full Court of the Family Court remarked in Clauson:[29]
“the weight to be attached to a child support assessment will vary with the circumstances of each case, including the amount of the assessment, the financial circumstances of the parties, the needs of the children, whether the assessment is being paid regularly, and whether it is likely that it will continue to be paid at a regular and adequate rate in the future.”
Accordingly, I do not believe that this particular sub-section is greatly relevant.
[29] see Clauson (supra) at page 81,911
Sub-section (o) – It is relevant for me to take into account the fact that the husband will be liable to pay the taxation debt, which relates to his employment during the period of the marriage. In the circumstances of this case, it is a considerable sum of money and will be a burden for him for some time to come. It will retard him from getting on his feet financially for some time. I also bear in mind that the husband also has a liability in respect of legal fees. The wife is legally aided in these proceedings, however, she may have to pay a contribution towards the provision of legal services on her behalf. However, at this stage, neither she nor the Court are privy to the likely extent of this contribution or, indeed, whether it will be levied at all.
Sub-section (p) – This sub-section does not arise.
The difficulty in this case is that the financial needs of both parties are great, but the pool of property available to be distributed between them is small, especially when the vast bulk of that pool is comprised of superannuation. It is all very well to talk in percentage terms, so far as orders are concerned, but at the end of the day, what matters to the parties is what the orders mean in dollars and cents and what effect they have on their long term aspirations. In cases, such as this one, where the pool of assets available to be distributed between the parties is small, the proper adjustment, in respect of factors after contribution, often becomes more critical. Again, in Clauson[30], the Full Court remarked of:
“a tendency to assess section 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the section 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.”
[30] See Clauson (supra) at page 81,911
Having regard to all the factors as set out in section 75(2), in my view, it is appropriate to make a further 22.5% adjustment in favour of the wife, principally because she will have the care of both Z and T in future. In addition, the husband is in secure employment and although in receipt of a modest wage, is likely to be better renumerated than the wife for some years to come. The pool of assets is small and I must bear in mind that small percentage shifts, although not having great significance as far as monetary value is concerned, will have enormous significance for the parties themselves.
Conclusions – Section 79(2) – is this a just and equitable outcome?
In order to ensure that there is a just and equitable outcome in this case, it is not open to the Court to consider what the outcome should be merely in percentage terms. It is necessary for the Court to consider the actual effect of the orders that will be made. This is of particular significance in a case as such as this one, where a significant amount of the property available to be distributed between the parties is in the form of superannuation. Accordingly, it is in my view appropriate for the Court to consider either a splitting or flagging order, although neither party has specifically sought it. Given the differences in the parties’ ages at the present time, they have to a certain extent different needs. The wife is in need of immediate funds to, in time, re-house herself and the children. The husband is closer to retirement age, but still some way off. He too has a need of cash to finance his immediate needs. However, given his age, it is prudent for him to more closely consider the issue of retirement planning. For obvious reasons, the wife would seek to retain the vast majority of the parties’ liquid assets and leave the superannuation to the husband.
The intent of Part VIII B of the Family Law Act, which deals with superannuation splitting, was to ensure an equitable division of matrimonial property and avoid the artificial situation that prevailed in the past, whereby one party, commonly the husband had the sole benefit of superannuation and the other party, commonly the wife, was compensated with other assets, which may or may not have had an equal value but was thus denied the benefit of retirement planning through superannuation. Because of the superannuation splitting legislation, the non-member party to a superannuation fund, can potentially share the benefits of retirement planning through division of superannuation. Thus the spectre that in retirement, the non-member spouse is more likely to live in relative poverty can be addressed.
This raises the question as to how the Court is to consider the distribution of assets. In essence, should the findings made pursuant to section 79(4) and section 75(2) be applied in the same way to superannuation and also the available assets of the parties. In my view, the provisions of the Family Law Act enjoin the Court to consider the particular circumstances of each case and deliver individual justice, depending on the circumstances of the particular parties in the case. Thus, it is appropriate for the Court to consider the needs of the parties at the time of orders and, in particular, to consider the relative pressures on the parties concerning retirement planning and the need for superannuation.
These were issues that were considered by Moore J in Levick and Levick[31]. In that case, Moore J considered that the relevant factors that should apply to a determination as to what percentage of the actual assets and what percentage of the superannuation were as follows:
·the purchase price of appropriate accommodation and re-housing costs for both parties;
·the need for a financial buffer for ordinary exigencies of independent living;
·the current level of the parties’ superannuation;
·the probability that the wife would be able to acquire appropriate superannuation benefits from her own future income;
·the husband’s substantial earning capacity and ability to borrow significant sums at favourable rates (from his employer).
[31] Levick and Levick unreported decision of Moore J delivered 31 January 2003
Obviously, not all those factors apply in this case. In my view, given his age, the husband clearly has a need for a greater amount of superannuation than the wife. He is currently about a decade away from retirement at its earliest. The wife is still in her 20’s and has no pressing need to consider retirement planning. That is the major factor, which in my view, favours the wife receiving the larger proportion of the parties’ available assets. However, the husband is still entitled to receive some store of cash in order to provide him with a buffer against the exigencies of life. It would not be, in my view, reasonable to expect him to be left merely with debt and no other source of capital.
In the long run, both parties would like to re-house themselves. No evidence has been provided to me of the likely cost of this. In the short to medium term, it seems likely that the wife will be reliant on public housing. The husband has some income and may be in a position to save and, in time, borrow some money, particularly if he has some amount of capital.
The wife hopes to obtain tertiary qualifications in the next three or four years. If successful, she will qualify as a teacher and in the future, and so will be able to obtain secure employment, which will enable her to save superannuation for her retirement. This discounts any pressing need for superannuation. However, in the straightened financial circumstances of the parties, it is in my view appropriate for there to be some “mix and match” of assets and superannuation between the parties.
Thirty five percent of the net assets of the parties is represented by the sum of $40,712.70. The wife has in her possession in the form of her superannuation, car and AMP shares, assets to the value of $8,900.00. In my view, it is appropriate to divide the proceeds of the sale of the former matrimonial property equally between the parties. I also believe that it is appropriate that the wife should retain the Commonwealth Bank shares worth $5,519.00. This leaves the wife with property to the value of $25,916.50. In my view, the balance of the monies due to her should be made up by way of a split of the husband’s entitlement to superannuation in the Colonial Mutual Fund in an amount of $14,796.20.
The corollary of these adjustments is that the husband will retain his ComSuper entitlement; the monies standing in the Kupang bank account; his car, trailer and household effects; the shares in Telstra worth $4,480.00; $11,497.50, which represents half the proceeds of the matrimonial home and the balance of his entitlement in the Colonial Mutual superannuation fund, an amount of $28,473.80. In total, these items have a value of $85,813.30. However, the husband will be left with sole responsibility for the debt to the Australian Taxation Office.
The effect of these orders is that he husband will have considerably more superannuation than the wife. However, there is no doubt that he made a far greater contribution than the wife during the marriage in a direct financial sense. The end of the relationship between the parties leave him in a much worse financial position than that which prevailed at the relationship’s start. He has a small amount of cash, which I appreciate is inadequate to re-house him in any real sense. It does however provide him with some buffer in future.
The wife leaves the marriage in a better position than that in which she began it. However, she now has the care of two small children and, at this stage at least, no easily discernible source of income with which to support either herself or them. In my view, it is only just and equitable that, given the length of the marriage and the husband’s overwhelming initial contribution of assets at its commencement, that he should receive the large proportion of the parties’ assets. However, it is still important that the wife receive some share of the assets of the parties in order to provide for herself and the children in the short term. The orders provide her with a modest amount of superannuation, which will form the basis of her retirement income. Overall, I am satisfied that it represents a just and equitable outcome.
The superannuation splitting order will have effect from the date of judgment. Upon the split, the wife will have the option to remain in the fund or roll over her interest into another fund. The base amount of the split will be $14,796.20.
I am assuming that notice has been given to the relevant trustee of the superannuation fund concerned in accordance with section 90MZD. If such notice has not been given, liberty is granted to the parties to re-list the matter at short notice and this liberty is extended to the trustee of the relevant superannuation fund.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 8 August 2003
0
3
0