FEDERAL CIRCUIT COURT OF AUSTRALIA
| BABRAY & BABRAY | [2019] FCCA 3514 |
| Catchwords: FAMILY LAW – Property application – whether s 79(2) satisfied – Stanford & Stanford – where applicant engaged in property settlement proceedings with former de facto partner at time cohabitation with respondent commenced – where property settlement with former de facto partner resulted in applicant acquiring property, subject to mortgage, and assuming obligation to pay monies – where property so acquired sold – where applicant extends mortgage and borrows monies from respondent’s parents so as to discharge obligation to pay former de facto partner monies due under settlement – where applicant applies net equity with further borrowings from respondent’s parents to purchase motor vehicle – where respondent brings substantial property at commencement of relationship – consideration of contributions during and post separation – whether just and equitable to make order under s 79 – applicable principles – whether adopting alternative approach any order should be made adjusting property interests – application dismissed. FAMILY LAW – Parenting application – where parties agreed substantially all final parenting orders – where parties in contest over changeover and who may attend to collect or deliver the child – where child spends alternate on weekends with father from Friday night to Sunday – where applicant agrees to undertake all driving throughout football season but seeks that respondent except responsibility for 25% of annual driving – orders for changeover made. |
| Legislation: Evidence Act 1995 (Cth), ss.140, 144 |
| Applicant: | MR BABRAY |
| Respondent: | MS BABRAY |
| File Number: | MLC 5055 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 26 March 2019 |
| Date of Last Submission: | 30 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 9 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms D. Hannan |
| Solicitors for the Applicant: | Burke Family Law |
| Counsel for the Respondent: | Mr T.J. Puckey |
| Solicitors for the Respondent: | Melia Lawyers |
ORDERS
Paragraphs (4), (8) and (9) of the Order made on 26 March 2019, by consent, be varied in accordance with paragraphs (2)-(3) of this Order.
Save as otherwise as may be agreed in writing by the parties, for the purposes of changeover, during:
(a)the period of the Australian Rules football season (as determined by the fixture of the Australian Football League and excluding all finals), the applicant father collect and deliver the child, X born on … 2013 (Child) at the commencement and conclusion of his time to be spent with the applicant; and
(b)the remainder of each year, on each Friday evening on alternate weekends the respondent mother deliver the Child to the applicant’s home at the commencement of his spend time.
In addition to the persons who are authorised by paragraph (9) of the Order made on 26 March 2019, the applicant’s eldest child be authorised to undertake changeovers upon her attaining the age of 22 years.
The application for an adjustment of property interests be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Babray & Babray is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5055 of 2017
| MR BABRAY |
Applicant
And
| MS BABRAY |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain orders that are made in an application under the Family Law Act 1975 (Cth) (Act) for parenting orders and an adjustment of property interests.
In summary I have concluded that, as concerns the orders sought in:
a)Parenting matters: contrary to the respondent’s submissions, I am satisfied that it is appropriate she should undertake responsibility for driving the child to the applicant’s home on Friday evenings when the child is to spend time with the applicant on alternative weekends. As the applicant consents to undertake all driving for the child’s spend time during the football season, her responsibility to do so should be confined to the non-football season;
b)Property: As I am not satisfied that it is just or equitable that there be an adjustment of property interests, the application is dismissed. If, contrary to my view, it would have been just and equitable to consider whether to make an order, I have concluded, pursuant to s 79(4) of the Act, it is appropriate that no order should be made adjusting the parties existing property interests.
Procedural history
On 24 May 2017, the applicant husband filed an initiating application seeking interim and final orders in relation to both children and property. While the application has been amended on several occasions, the substantive issue that arose for determination at trial was whether the court was satisfied pursuant to s 79(2) that it was just and equitable to make an order adjusting the parties existing property interests. As concerned parenting arrangements, issues respecting changeover were raised.
On 7 July 2017, the respondent wife filed her Response. In this document, the respondent sought that the requirement to specify the orders sought by her be waived until completion of financial disclosure. She also proposed extensive parenting orders. By her Amended Response filed on 12 March 2019, the respondent again proposed extensive parenting orders. However, as concerned property, the respondent deleted her original response that the requirement to specify orders be waived but did not, by way of amendment, propose that any property orders be made. An available implication was that the respondent opposed the making of any orders adjusting the parties existing property interests.
Each of the parties filed a notice of risk. The applicant’s notice, which identified the child, his half siblings, new partner and himself, stated that child had not been abused or was at risk of being abused. The respondent’s notice likewise made no allegations of abuse, or the risk of abuse of the child and, somewhat curiously identified the identical parties as had been named by the applicant. No order was made pursuant to s 69ZW of the Act for the provision of information and in those circumstances, it appears the Department of Health and Human Services did not investigate the matter or file a response to those notices.
On 18 July 2017, orders were made by another judge of this court directing the parties to attend a conciliation conference. The parties also agreed in interim parenting orders which variously provided: for equal shared parental responsibility; for the child to live with the respondent; for the child spend alternative weekends with the applicant; for changeover at the respondent’s residence; for the child to be collected, primarily by the applicant but with provision for collection by the paternal grandparents; for non-denigration, and; for ancillary matters.
The parties were legally represented at a conciliation conference but achieved no final resolution of their dispute.
On 5 October 2017, Ms A, a family report writer, affirmed an affidavit to which she exhibited her report dated 27 August 2017. In her report she detailed her interviews of the parties and the observations which he made of the parents and the child and their interactions with one another. In a detailed report, the author observed that the child was “a lively and spontaneous little boy, confident and relatively self-assured and who appears intelligent and well-developed for his age.” Ms A considered that the resolution of the case had, in many respects, been assisted by the child evident wishes, including his desire to spend time with his father. She found that the child’s primary attachment was to his mother and that it was secure and stable. Having found that the child is relationship with his father was less secure, Ms A recommended, for that reason, the applicant should be in substantial attendance when the child spent time with him.
The family report writer made recommendations in relation to parenting arrangements, many of which were reflected in the parties consent orders.
On 12 October 2017, further orders were made by another judge of this court fixing the matter for trial.
Parties positions at trial
The parties filed their Outlines of Case. A feature of the respondent’s outline was that it was completely silent in relation to parenting issues. The only matters addressed by her outline related to property. In those circumstances, the respondent’s Outline of Case was in marked contrast to her Amended Response which was silent on the issue.
By the time of trial, the parties had refined the positions. As to property, the significant issue in dispute was whether there should be any adjustment of property interests. While the applicant contended that the respondent should make a payment to him of $215,000 she maintained that there should be no payment. The said sum of $215,000 was described as representing ~30% of the net equity in the former matrimonial home. The applicant also sought a superannuation split whereby a sum of $15,000 would be paid from the respondent’s superannuation so as to equalise the parties’ superannuation entitlement. They had otherwise agreed the Asset Pool and that they would retain their respective motor vehicles.
At the hearing of the proceeding on 26 March 2019, the parties resolved nearly all parenting arrangements on a final basis, including that the applicant would be in substantial attendance when the child was in his care until the child attained age 13 years. The scope of the parties’ dispute upon parenting orders was confined to two matters: (1) where changeover should take place; (2) who may assist with changeover. These issues arose for determination in the context that under the interim parenting orders, the applicant undertakes all driving on the alternative weekends when the child is to spend time with him.
The applicant contended driving should be shared. The respondent’s position was that the applicant should continue to do all the driving, notwithstanding that she also had a drivers’ licence and vehicle.
An associated issue in relation to changeover was whether the applicant might be permitted to effect changeover either with the assistance of one or other of his parents or his eldest child (the child’s adult step-sibling). The respondent opposed anyone other than the applicant, his new partner or father undertaking the responsibility for collecting or delivering the child at changeover including, in particular, the applicant’s eldest child.
Evidence at trial
Although a number of affidavits had been filed, viva voce evidence was only called from the parties. While I have considered the trial affidavits and oral evidence, it has not been necessary to refer to every aspect of their evidence. Aside from the parties’ trial affidavits, the respondent filed affidavits made by each of her parents.
While I considered that each of the parties generally endeavoured to give their evidence in an essentially truthful manner, each of them was clearly motivated by self-interest. Regrettably, the applicant was shown to be less than candid on several occasions in relation to important issues.
Where the parties had agreed upon a fact or circumstance in their affidavits or case outlines, I have taken account of that matter. Where issues of dispute arose, I have addressed them separately in these reasons. In deciding disputed issues of fact, I have applied the civil standard of proof to the resolution of that issue.[1] The more serious the allegation, the more necessary it was that I took into account the gravity of the allegation in deciding whether it was made out.[2] Where the evidence does not permit the court to make an affirmative finding either way on a particular issue, the court is not bound to do so, and may find that the party which bears the evidentiary onus of proof has failed to discharge it.[3] The court may well accept some parts of a witness’s evidence and reject other parts of it.[4] I make the following findings.
[1] Evidence Act 1995 (Cth), s 140.
[2]cf Evidence Act 1995 (Cth), sub-s 140(2); Johnson v Page (2007) FLC 93-344, [72]; Briginshaw v Briginshaw (1938) 60 CLR 336.
[4] Jabour & Jabour [2019] FamCAFC 78, [110] and cases cited.
Overview
The applicant is aged 42 years and lives in Suburb B. He is employed as a professional and earns ~$110,000 per annum. He has re-partnered.
The applicant also has two children from a prior relationship, the younger of whom (aged 15 years), resides with him. The elder child of his former relationship (aged 17 years) resides with her mother in Suburb E and spends time with the applicant on monthly intervals. The Suburb E residence of the applicant’s former partner is about 20 minutes’ drive from the respondent’s home.
The respondent is aged 44 years and lives in Suburb C. She is employed as a public servant and derives a gross annual income of $94,000. Attempts to challenge the applicant’s income were not pursued.
The parties commenced cohabitation in about … 2009 (on the applicant’s case) and in February 2010 (on the respondent’s case).
In … 2011, they were engaged and on … 2011 were married.
There is one child of the relationship, X (child) who was born on … 2013 and is now aged 6 years.
On 1 November 2016, the parties separated. They have not yet divorced.
The relationship
The scope and extent of this dispute may be conveniently addressed by recognising that the parties adopted differing views as to the nature of their relationship at an early stage. There is no dispute that their relationship commenced in … 2009. Four aspects of the applicant’s circumstances at that time are notable. First is that the applicant had only recently separated from his previous partner. Secondly, the applicant was then engaged in negotiations with his previous partner for a property settlement. Thirdly, the parties then maintained separate living arrangements and, as was submitted, a complete segregation of their financial affairs. Fourthly, the applicant did not stay at the respondent’s home on a regular basis at that time.
Independent contemporaneous evidence supportive of the respondent’s contention as to the parties living arrangements was provided by the applicant’s financial statement sworn in October 2010 by which he affirmed that, at that date, he was living with, and paying board, to his parents. It was also uncontroversial that the parties did not merge their financial affairs. Further, it was not until February 2011 that they opened a joint account. More particularly, they did so for the express purpose that they should each make contributions to that account for managing their living expenses.
On the whole of the evidence I am satisfied that the parties’ relationship as a couple living together on a genuine domestic basis commenced in February 2011.[5] It follows that, as separation occurred on 1 November 2016, the period of cohabitation was five years and nine months.
[5] Act, s 4AA(1).
I assess the contributions that were brought to the relationship below.
As concerns the respondent, well before the commencement of the parties’ relationship, in 2006, the respondent purchased vacant land in Suburb C. Later that year the respondent paid for a dwelling to be constructed on that land. She began living in the Suburb C property on 1 December 2006. To achieve the purchase and construction of this property, the applicant borrowed $194,000 from her parents. Although the property remains unencumbered, none of those borrowings were repaid during the parties’ relationship.
As concerns the applicant, his precise interest in a property situate in Suburb D was the subject of contest. He was challenged on significant differences between the evidence as deposed by his trial affidavit in this proceeding and his financial statement sworn on 28 October 2010 for the purposes of the determination of an application for an adjustment of property interests as against his former de facto partner. In that proceeding also, the applicant was the applicant for relief. While the trial affidavit and financial statement correlated as to the value of the property ($277,500), there was a significant disparity in his evidence as to the secured liability. In particular, by his trial affidavit he deposed “there was a mortgage . . . of $21,314.00.” In the financial statement sworn in 2010, he identified that the amount of his share of the mortgage was 100% and quantified the liability at $87,256. The applicant’s attempts to explain difference in his sworn evidence as to the mortgage liability was unsatisfactory and unconvincing.
In addition, the applicant’s 2010 financial statement deposed to:
a)minimal assets comprised of an undisclosed amount of cash, F shares ($397) and no other assets;
b)superannuation of $36,838;
c)personal liabilities of ~$50,600.
However, the applicant’s trial affidavit asserted that the F shares had a slightly higher value and that he had certain tools of trade, a motor vehicle ($5,800), a motorcycle and his superannuation of $36,838.
In all the circumstances, I prefer the applicant’s contemporaneous sworn evidence as at 28 October 2010 over his trial affidavit sworn in 2019 as more accurately describing the assets and liabilities which were brought by the applicant to the relationship in February 2011.
Contrastingly, at the commencement of the relationship, the respondent had no liabilities, save as to the loan that was made by her parents, no part of which was repaid during the pendency of their relationship.
As stated, at about the same time as their engagement, on … 2011, final orders were made adjusting the property interests of the applicant and his former de facto partner. Pursuant to those final orders, it was the applicant’s case that he received a property situate in Suburb D. However, it was common ground that under the property settlement reached by the applicant with his former de facto partner, he was obliged to pay her $155,000 as the consideration for him retaining the Suburb D property. Having regard to the agreed equity in the Suburb D property and his evidence as to his 100% liability to discharge the mortgage, the applicant had equity of ~$190,000 in that property and debts of ~$50,000. In due course, the property was sold.
It was common ground that the applicant could not raise the funds required to discharge his obligation under the settlement reached with his former de facto partner. To meet this obligation, the applicant took the following steps. First, he increased the mortgage on the Suburb D property by $65,000. Secondly, he borrowed $90,000 from the respondent’s parents to make up the shortfall needed to pay $155,000. In addition, the applicant retained his existing debts of ~$50,600.
Shortly after the parties’ marriage, on … 2011, settlement of the sale of the Suburb D property took place resulting in the receipt by the applicant of the net proceeds of sale of ~$47,750.
It was also common ground that the applicant applied the net proceeds of sale to the purchase of a new motor vehicle for $70,000. Again, as he could not afford this vehicle, the respondent’s parents also loaned him more money so as to make up the shortfall to complete this purchase.
Some weeks after the child’s birth, the applicant was made redundant and on … 2013 he received a redundancy payment of ~$8,550.
Following a modest period of maternity leave, on … 2014, the respondent returned to work.
Further, on … 2016, the applicant resumed employment, however, again, he was made redundant, receiving a payment of $1,560.
In terms of contributions made by the applicant during the relationship the following may be said. The applicant worked from the start of the relationship in … 2011 until … 2013, when he was made redundant. Some indication of his earnings may be gained from his 2010 financial statement which, as he acknowledged during cross-examination, stated that his annual earnings as at … 2010 were $35,000 which he derived from working as a labourer.
After being made redundant, the applicant was unemployed from 2013 - 2015. During this period the applicant completed various courses of retraining in occupational health and safety, courses which have enabled him to secure his current employment. Having obtained employment in 2016, the parties separated later that year.
The applicant was challenged as to how he had applied his income during the relationship. Again, using his 2010 financial statement it was demonstrated that his weekly expenditure exceeded his net weekly income and, in addition, that he had significant personal debts. As to the latter, the applicant’s evidence was unclear as to whether those debts had been repaid.
In addition, as noted, the applicant incurred substantial liabilities to the respondent’s parents respecting the borrowings which he had made during the relationship for the purposes of enabling him to make up the shortfall ($90,000) to repay his former de facto partner, together with the shortfall ($25,000) to purchase the motor vehicle F. It was accepted that the applicant had applied his income to discharge those liabilities to the respondent’s parents during the course of the relationship.
The applicant gave evidence in answer to the respondent’s trial affidavit, challenging the contributions that he made towards living expenses. He stated that, from the time the parties’ joint account had been opened in about … 2011, he had paid on average $200 per week and that he had also made lump sum payments to the account and that “I basically paid as much as I could into that joint bills and expenses account.”
As concerned the applicant’s expenditure on day-to-day consumables, the cross-examination of the applicant confirmed that, by reference to his 2010 financial statement, his daily expenditure was ~$200 to ~$300. Although the parties had established a joint account, the applicant’s contributions were sporadic. I accept the respondent’s submission that, on one view, on the occasions the applicant made contributions they barely covered his personal expenditure and that when he did not, he was effectively supported by the respondent. Those findings are made in the broader context of the applicant’s unemployment during 2013 – 2016.
It was only in re-examination that the applicant claimed (for the first time) that he had also borne other expenses on the respondent’s behalf. In those circumstances, credit card statements which were tendered by the respondent confirmed that, in fact, the only payments which he had made to that credit card were in reimbursement of expenditure that had been incurred on the applicant’s behalf for either relatively modest amounts; new tyres for his vehicle and health insurance.
Otherwise, I accept that the applicant carried out only minor repairs around the home (which had been newly constructed), and contributed his labour in assisting or working with the respondent’s father in relation to projects such as the concreting of a further strip of driveway and a shed (~$5,000) that was used to house his motorbikes and tools. On the whole of the evidence, it was accurate to describe these additions as being in the nature of “lifestyle” projects (a description which the applicant accepted). There was no evidence that these works constituted significant renovations or were of such a scale as to add to the value of the property. To the extent that the applicant sought to elevate the nature of his work around the Suburb C property, I attach little weight to it. In making that finding, I do not ignore the submission and evidence that the applicant may have saved the parties from having to bring in a tradesman to undertake such work.
In terms of contributions made by the respondent during the relationship the following may be said. It was clear that, save for a brief period of maternity leave (six months), the applicant worked throughout the period of cohabitation, applying the whole of her income to the support of the relationship and the maintenance or improvement of her property. The respondent discharged the liabilities for all rates, insurances and outgoings. She also incurred the costs of maintaining the property.
As noted, in early 2011, the respondent established a joint account for the purposes of the parties’ living expenses. The account was established with the intention that the parties would contribute equally to this account and that the monies so paid would be used for their living expenses. However, in the event, the applicant was unable to make such contributions for a significant period including by reason of his unemployment. In particular, the applicant contributed ~$200 to $250 from … 2011 until his redundancy in … 2013 and thereafter for the few months that the respondent was in receipt of Centrelink payments, which payments were terminated upon his returning to work. The respondent maintained her contributions to the joint account throughout the period of the relationship. Further, when the balance of funds standing to the credit of the joint account were insufficient to meet household needs, she also met bills from her own resources.
Despite the suggestion made in the applicant’s trial affidavit that he had contributed his redundancy payment ($8,000) to the parties resources, when challenged upon this, he agreed that after the amount of his redundancy payment had been deposited to the joint account, he had withdrawn the same sum the following day and applied it in partial reduction of his indebtedness to the respondent’s parents.
I am also entitled to take into account, contributions both direct and indirect, including those made by or on behalf of a party. In this case, I do not ignore that the respondent’s parents made significant contributions on her behalf so as to enable the applicant to pay his former de facto partner and to complete the purchase of his motor vehicle F. While the evidence indicates that those loans were repaid from the applicant’s income, this circumstance serves to confirm that the applicant’s income was not applied by way of contributions to the parties’ asset pool.
As to post separation contributions, the applicant has been assessed for child support of $17 per week, an assessment which he conceded was not in fact based upon his current income. He volunteered that he also made various “discretionary” payments of $32 per week. The history of the proceeding sheds light on that evidence. In particular, the payments commenced after mediation in late 2017, however, they were then reduced following an increase in his child support assessment. As counsel for the respondent observed, even allowing for the doubtful proposition that the applicant will continue to pay $50 per week toward the care of child, this pales into insignificance when regard is had to the respondent’s weekly contributions for the child’s care of $900.
In addition, since separation the respondent has had almost sole care and responsibility for the welfare of the child who lives with her and spends alternate weekends with the applicant from Friday evening until Sunday afternoon. In those circumstances the respondent is solely responsible for fulfilling his daily routines and commitments including his education, before and after school care and his extra-curricular activities. Viewed collectively, the respondent’s contributions cannot be viewed as being other than substantial.
The parties shared household duties and parenting responsibilities during the period of cohabitation in a manner where those contributions cannot be differentiated.
I accept that at the end of the relationship there had been no significant change in the financial circumstances of either party. In the result, the respondent continues to hold the Suburb C property which she had brought into the relationship. Equally, the applicant has the motor vehicle F which he purchased using the net proceeds of sale of the Suburb D property and the monies borrowed from the respondent’s parents, together with a motorcycle. Moreover, each party continues to hold the superannuation which they have accrued (applicant $189,000) (respondent $132,000).
While the respondent has discharged responsibility for the predominant care and welfare of the child, the applicant has maintained a relationship with his son including on alternate weekends and during holidays.
As to changeover, the parties adduced the following further evidence.
When his is eldest child has swimming training, the applicant will collect her in Suburb E at the same time that he collects the child. Otherwise, his eldest child will catch the train from Suburb E to Suburb B.
The applicant denied that there had been any occasions when he had not been in substantial attendance on the occasions that the child is in his care. His evidence was that there had been a handful of occasions when he could not fulfil his parenting obligations under interim orders and that when those difficulties had arisen he had notified the respondent with the result that the child had remained in her care until either “an agreed time the following day or evening was made that I could pick him up.”
Parenting issues – applicable principles
As the parties had agreed on substantially all parenting issues save as to changeover, it is possible to address the applicable principles briefly.
Part VII of the Family Law Act 1975 (Cth) (Act) concerns the subject, Children. It is arranged in 16 Divisions comprising ss 60 – 70Q. Part VII has frequently been described as providing a legislative pathway which govern parenting decisions.[6] This should be properly understood as emphasising that the statutory considerations which are relevant to a particular case must be considered and applied as directed by the Act.[7]
[6]See, eg, Goode & Goode (2006) 36 Fam LR 422, [5]-[13]; Morgan and Miles (2007) FLC 93-343, [62]-[71].
[7] See, eg, Oswald & Karrington [2016] FamCAFC 152, [47].
Section 65D of the Act provides that the Court may make such parenting order as it thinks ‘proper’. In Bondelmonte v Bondelmonte,[8] the Court said of s 65D:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
[8] (2017) 259 CLR 662, [32].
The objects of Part VII are stated in sub-s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: para 60B(1)(b).
In determining the best interests of the children there are certain primary considerations which the Court must take into account: sub-s 60CC(2). The Court must consider:
(a)the benefit to the children of having a meaningful relationship with both of their parents; and
(b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The Court is now required to give greater weight to the need to protect children from physical or psychological harm from being subjected, or exposed, to abuse, neglect or family violence.
When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount consideration: s 60CA. Part VII of the Act, which has frequently been described as providing a legislative pathway which govern parenting decisions, includes the primary and additional considerations that are prescribed by s 60CC(2)-(3).
Resolution
The first parenting issue that arises for determination relates to a period of changeover for the non-football period of the annual calendar. Somewhat surprisingly, in the parties closing written submissions there was disagreement as to the duration of that period. While the applicant submitted that the period was approximately eight months from September to April, the respondent submitted that it was a period of six months. It is now a matter of regret that, despite an endeavour to assist the parties and to contain their legal costs, I made directions, by consent, that they would file written closing submissions instead of incurring the additional costs of a further hearing day in court.
I will not resolve the parties challenge as to whether the relevant period of the football season is six or eight months. Instead, a decision on this issue will be based upon the commencement and completion of the football season of the Australian Football League, as to the details of which there is no evidence. However, I consider that the commencement and completion date of that professional football season is sufficiently notorious as to be beyond argument.[9] The parties have had the opportunity to address that issue. For the avoidance of doubt, as concerns question of changeover, I will confine the “non-football period” of the annual calendar to the AFL football fixture, excluding all finals.
[9] Evidence Act 1995 (Cth) s 144.
The issue arises in this way because during the football season, the child participates in Auskick on Friday evenings near his home in Suburb C. The applicant has agreed to undertake the majority of travel, including collecting the child from Auskick throughout the football season (provided the child is enrolled in that program) and returning the child to the respondent’s home on Sunday evenings at the conclusion of time.
At present, all changeovers have occurred at the respondent’s home at Suburb C. The parties are agreed that this should continue save that he seeks, during the non-football part of the calendar, for the respondent to deliver the child to his home on Friday nights.
The respondent’s primary position was to oppose any alteration to the existing arrangements. In short, the position appeared to be “I do everything else” and that the applicant should pick up 100% of the driving from Suburb B to Suburb C each alternate Friday night throughout the entire year. Her alternative proposal was that instead of having responsibility for Friday nights, she should instead be permitted to collect the child on Sunday afternoons.
It was submitted that the changeover issue in this case should essentially be guided by the considerations addressed by sub-s 60CC(2)(b) and 60(3)(c) and (ca).
As concerns s 60CC(2)(b), I am not satisfied that there is a need to protect the child from harm in relation to changeover. I considered that the respondent’s submissions in this regard exaggerated the scale of the conflict which she alleges exist in this case. While the parties may have a demonstrated capacity to lack civility toward one another, I do not regard it as impinging on the child’s safety in any relevant sense. Nor do I consider the event of changeover presents any unacceptable risk to the child. I agree with the submissions of Ms Hannan, counsel for the applicant, that in cross-examination, the respondent’s evidence as to verbal abuse were vague and generalised. Her notice of risk was thus notable for the absence of allegations and her complaints seemed, at best, opportunistic.
Further, insofar as the respondent relied upon the extent to which the parents had taken or failed to take opportunities to spend time, and communicate with, the child, I am satisfied that the applicant actively seeks to do so, just as he does in relation to the children from his earlier relationship. As concerns the final additional consideration to which attention was drawn, I attach little weight to the respondent’s criticism that the applicant has, on some minor occasions, had difficulty in observing spend time arrangements in a timely way. Further, as to other matters which might also be taken into account, I do not ignore that the applicant has the additional responsibility of collecting and delivering his elder child to and from Suburb E each month. Since the younger child from his earlier relationship now lives with him and the elder child is essentially self-sufficient, to relieve the applicant of responsibility for collecting the child on Friday evenings for six months of the year is a consideration I have taken into account.
Counsel for the respondent submitted that the parties had poor communication which, coupled with a high level of conflict, resulted in there being very little trust or co-operation between the parties. This was said to have been evident by the manner in which they gave evidence and from the fact of their failure to resolve this relatively minor issue.
While I do not ignore that the respondent bears significant responsibility for the day-to-day care and welfare of the child, and for his financial support, including by delivering and collecting him to and from school and all extra-curricular activities, I am persuaded that it is not an undue burden that she should deliver the child to the applicant’s premises on Friday nights for the non-football months of the year that are in issue.
The respondent’s primary objection to having any responsibility for driving to changeovers was grounded upon facing the difficulties of dealing with traffic in having to travel across metropolitan Melbourne. In my view, the respondent’s evidence indicated a high degree of self-interest. Insofar as the respondent sought to attribute a protective motive in raising her objection to such travel, she ultimately conceded that irrespective of whether the driving was undertaken by the applicant or respondent, the experience for the child would make little difference.
There is no issue that either parent is prevented from driving. Nor is the respondent burdened by other particular obligations such as the welfare of a young infant. In effect, the issue revolves around responsibility for 25% of the annual changeover. I am not persuaded that it is unreasonable for the respondent to bear that responsibility. I am also persuaded that it is not unreasonable she should deliver the child on Friday nights. The parties will, of course, be free to alter those arrangements by agreement from time to time should the need arise.
The practical logistics of changeovers on Friday nights are self-evidently challenging. That is not a reason to shift the burden in all cases to the applicant. I accept the applicant’s submissions that for the “non-football” season of each year, excluding finals, the respondent should be involved in changeover and that this involvement should be to deliver the child to the applicant’s home on Friday nights.
Concerning the further issue as to who should be permitted to participate in changeover, the respondent is agreeable to the applicant, his new partner or the paternal grandfather being involved in changeover. However, the respondent objects to the paternal grandmother and the child’s elder stepsibling being permitted to undertake changeover, doing so on the basis of suggested ‘abuse’ by those women toward her.
I do not wholly accept the respondent’s criticism of the applicant in relation to what is described as “the father’s proposal for a range of agents to effect changeovers”. Nor do I accept that the stance he has taken is telling of a lack of insight or responsibility. The respondent accepted that the paternal grandfather and the applicant’s new partner (with whom the respondent acknowledged she has no particular conflict), were persons who would be acceptable as ‘agents’ for changeover. However, I do not agree with the applicant’s suggestion that the child’s step-sibling should be permitted to drive the child across metropolitan Melbourne on a Friday night. In my view, to expect that a new driver who is still gaining experience driving in metropolitan traffic should be asked to undertake that role is an unfair delegation of responsibility.
I do not accept that the child’s elder stepsibling should be permitted to drive him before she is 22 years of age. However, I agree in the applicant’s submission that the respondent’s evidence in cross- examination in relation to alleged abuse was vague and unparticularised.
The applicant correctly submitted that interim orders made in October 2017, by consent, allowed for both of the paternal grandparents to participate in changeovers and I see no sufficient reason to make any different orders. Viewed in context, the evidence suggests that in a series of more than 100 changeovers, the child’s grandmother and elder step-sibling has in fact attended less than 10 such events. In this respect, the respondent accepted that, for her part, her own parents had collected the child on some occasions both from school and from Auskick.
Property – applicable principles
The applicable principles were common ground.
Part VIII of the Family Law Act 1975 concerns the subjects, Property, Spousal Maintenance and Maintenance Agreements, and is comprised of ss 71 – 90. Those provisions are augmented by the further provisions contained in Parts VIIIA – Part VIIIB, ss 90AA – 90MZH.
An alteration of property interests – s 79(1)
The alteration of property interests of parties to a marriage is provided for by s 79. In property settlement proceedings with respect to the property of parties to a marriage, the court is authorised by par 79(1)(a) to make such order as it considers appropriate. Sub-section 79(1) confers power on the court to make an order for the settlement or transfer of property as it may consider appropriate in the circumstances of the particular case. Section 79 thus confers a discretion on the court.[10]
Equally, the discretionary power conferred by s 79(1) is a power which the court shall exercise if the ground for doing so is made out.[11] The ground upon which the power may be engaged is confined by ss 79(2) and 79(4), which variously and separately require the court to consider whether it would be just and equitable to make any order and, when considering what order (if any) to make, to address certain factors.
[11]CfLeach v The Queen (2007) 230 CLR 1, [38]; Vale v Sutherland (2009) 237 CLR 638, [18].
The power to make orders for the adjustment of property interests rests upon two broad principles. First, orders made under s 79 should, so as far as is practicable, finally determine the parties’ financial relations.[12] Secondly, s 79 implicitly recognises that the parties to a marriage are equal in status: Mallet v Mallet.[13]
[12] Act, s 81.
[13] (1984) 156 CLR 605, 608 (Gibbs CJ).
In a similar vein, in Norbis v Norbis,[14] Mason and Deane JJ observed that the very wide discretion conferred by s 79 was not unlimited but was, “conditioned by the requirement that it is just and equitable to make the order (s.79(2)) and that the Court take into account the matters specified in s.79(4) and the general principles embodied in ss. 43 and 81, so far as they are applicable.”
[14] (1986) 161 CLR 513, 521.
The power conferred by sub-s 79(1) is engaged only in a property settlement proceeding, being a proceeding with respect to the property of the parties or either of them. The power extends only to an adjustment of interests in the property of the parties. In the Act, ‘property’ means:
. . . property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion (Act, s 4)
The expression ‘property’ is used in the Act in a comprehensive sense and extends to the property of the parties or either of them.[15] As this definition makes clear, the ‘property’ with which such proceedings is concerned is property to which the parties are entitled, whether by way of possession or reversion. This is a wide definition. By contrast, by s 78 of the Act, the court is only authorised to grant declaratory relief concerning the right or title of a party to existing interests in property together with ancillary relief by way of sale, partition or possession.
[15]Kennon v Spry (2008) 238 CLR 366, [52], [78] (French CJ); [91], [126] (Hayne and Gummow JJ), [154], [175] (Heydon J), 200], [224] (Kiefel J); Beklar & Beklar [2013] FamCA 327, (Ryan J).
Where one or both of the parties have instituted property settlement proceedings, par 79(1)(a) confines the ambit of the power to make an order that the Court considers appropriate to “altering the interests of the parties to the marriage in the property.” Paragraphs 79(1)(c)-(d) relevantly[16] define the ambit of that power in terms that expressly authorise the court to make “an order for a settlement of property in substitution for any interest in the property” and an order that requires either or both of the parties to the marriage to make “such settlement or transfer of property as the court determines.”
[16] Other parts of sub-s 79(1) concern bankruptcy and are of no relevance.
Structurally, s 79(1) requires the court to identify the parties’ existing interests in property (as defined) and then authorises that the court may make orders that alter those interests. However, the fundamental question that is presented by s 79 is whether those rights and interests should be altered.[17] The following provisions in s 79 control how that question must be answered.
[17] Stanford & Stanford (2012) 247 CLR 108, [39] (French CJ, Hayne, Kiefel and Bell JJ).
The just and equitable criterion – s 79(2)
Sub-section 79(2) proscribes the making of an order unless a certain criterion is satisfied. It reads:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Sub-section 79(2) cannot be side-stepped.
The scope and operation of sub-s 79(2) was given detailed consideration in the seminal decision of Stanford & Stanford.[18] The plurality held in relation to s 79(2) that the determination whether it was just and equitable to make an order under s 79, was an essential inquiry to be undertaken before any consideration was given to the matters prescribed by s 79(4). Their Honours emphasised that the issues raised by ss 79(2) and 79(4) were not to be conflated or merged.[19]
[18] (2012) 247 CLR 108.
[19] (2012) 247 CLR 108, [35], [40], [51].
The criterion ‘just and equitable’ is a criterion that does not admit of exhaustive definition.[20] It is to be understood as being a “qualitative description of a conclusion reached after examination of a range of potentially competing considerations.” Confirming that the power conferred by s 79 was not to be exercised by the application of fixed rules, the plurality identified three propositions that it regarded as being of fundamental importance to the determination whether it was just and equitable for the Court to make an order adjusting property rights.[21]
[20] Stanford at [36] citing Mallet, supra (1984) 156 CLR 605, 608 (Gibbs CJ).
[21] (2012) 247 CLR 108, [37]-[40].
First, the consideration whether it is just and equitable to make an order must begin by the identification of the existing legal and equitable interests of the parties in the subject property. The ascertainment of those existing interests is to be undertaken upon settled common law and equitable principles. The necessity to do so arises from the nature of the power conferred by s 79(1); namely, the alteration, settlement or transfer of property. This exercise of power cannot be undertaken until the court has first identified the parties’ existing interests in property.
Secondly, the broad discretion conferred by s 79 is not unfettered. It is not to be exercised upon some idiosyncratic view of the instant claim. The determination whether it is just and equitable that an order be made is not to be undertaken upon an a priori assumption that “the parties’ rights to or interests in property are or should be different from those that then exist.” Instead, the court will respect the parties’ existing legal and equitable interests in property. The determination of those existing interests is undertaken upon settled common law and equitable principles. Accordingly, interests in property that is, or has in the past been, enjoyed in common falls to be decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses.[22] The bare fact of separation does not permit a court to disregard the parties’ rights and interests in property or to make whatever order may seem to be fair or just.[23]
[22](2012) 247 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 (Windeyer J); Wirth v Wirth (1956) 98 CLR 228, 231-2 (Dixon CJ).
[23] (2012) 247 CLR 108, [43].
Thirdly, the analysis of whether it is just and equitable to make an order adjusting property interests does not begin from an assumption that either party “has the right to have the property of the parties divided.” It does not rest on an embedded assumption that either party “has the right to an interest in marital property which is fixed by reference to the various matters . . . set out in s 79(4).” The flaws that are inherent in such an assumption is that it conflates the statutory requirements of ss 79(2) and (4) and ignores the principles that are laid down in the Act respecting adjustment of property interests.[24] A principled basis must be shown to exist as to why it is just and equitable to make an order that would alter the parties existing interests in their property.
[24] (2012) 247 CLR 108, [40].
When it is said that the power to make a property settlement order must be exercised in accordance with legal principles, the Act lays down two quite distinct principles in ss 79(2) and 79(4) respectively: first is to determine whether it is just and equitable that the court should make an order adjusting existing interests in property; secondly, when deciding what order might be made, the court must consider the matters in paras 79(4)(a)-(g).[25] On this analysis, if the first question is answered ‘No’, the second question does not arise.
[25](2012) 247 CLR 108, [38], [40] citing R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 257 (Barwick CJ, Gibbs, Stephen and Mason JJ).
In Stanford, the plurality explained that adherence to those propositions could accommodate the differing circumstances in which property settlement proceedings arose for determination. Stanford underlines the importance of respecting inter alia: (a) binding agreements that the parties have made pursuant to Part VIIIA of the Act; (b) the autonomy indicated by agreements the parties have made, albeit that they may not be legally binding; (c) circumstances in which parties have, commonly, not expressly considered whether or not (or to what extent), there should be some different arrangement concerning their assets (whether held individually or in common) while their marriage subsists. In each case, the parties stated and unstated assumptions are recognised as meaning:
. . . [that] the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage.[26]
[26] (2012) 247 CLR 108, [41].
For that reason, Stanford insists that there should be a principled reason for interfering with the existing legal and equitable interests of the parties, whatever may have been their stated or unstated agreements or assumptions about property for so long as their marriage subsisted.
In the pluralities’ analysis of whether it was just and equitable for an order to be made under sub-s 79(1), a conclusion that this requirement is fulfilled may be readily satisfied where one or both of the parties have made a choice that they no longer live in the marital relationship. In that circumstance, it may be just and equitable for an order to be made adjusting property interests because: (1) the parties will no longer have common use of the subject property; (2) their express or implicit assumptions concerning such use have been brought to an end by reason of the exercise of the choice no longer to live in that relationship.
The Court also recognised that in some circumstances it could be demonstrated that it was just and equitable to make an order adjusting property interests, for example: (1) where it was demonstrated that one party’s unmet needs could not be answered by a maintenance order, and; (2) apart from need, other circumstances might also ground a conclusion that it was just and equitable to make an order adjusting property interests so as to satisfy s 79(2).[27]
[27] (2012) 247 CLR 108, [45], see also [18]-[19], [46]-[47].
French CJ, Hayne, Kiefel and Bell JJ concluded:[28]
. . . any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of their marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the Court make a property settlement order.
Termination of the marital relationship thus undermines the foundation for an assumption as to the use of the parties’ property. The removal of that foundation in turn provides the platform for a conclusion that it may be just and equitable to adjust the parties’ property interests.
[28] (2012) 247 CLR 108, [42], [44].
Their Honours held that nothing in their reasoning should be understood as denying “the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable”.[29] As Stanford illustrates, a countervailing factor that is of central importance is the need to consider the effect which the proposed order may have on the respondent to the application.
[29] (2012) 247 CLR 108, [46].
Heydon J, who agreed in the result, held that the burden of proof had not been discharged on the issue whether it would have been just and equitable to have made an order adjusting property interests.[30]
[30](2012) 247 CLR 108, [60], [64]-[64]. His Honour accepted that the wife’s non-financial contributions over a 35-year marriage may well have been decisive in supporting a conclusion that the parties’ legal entitlements in property did not reflect those contributions.
Consideration of the application of those principles in Stanford is instructive. There, the parties had each been in a prior marriage. Each had children from their respective prior marriages but they had no children together. The husband had acquired the matrimonial home following the breakdown of his first marriage. The parties had lived in that home for much of their relationship. It was a long marriage.
By his will, the husband had left a life interest in the matrimonial home to his wife. After the wife suffered a stroke she was admitted to care and later still suffered dementia. During that period, the husband continued to provide for her including by establishing a trust from which ancillary medical and other expenses could be met. The wife’s expenses of care were being met via her veteran’s pension.
The wife’s daughter, as guardian, instituted a proceeding seeking an order for the sale of the home and distribution of the sale proceeds.
The High Court reversed the decision of the Full Court and varied the order of the Magistrates’ Court, to dismiss the application with costs.
The substantive reason for so holding rested on the conclusion that it was not just or equitable to make an order in circumstances where the husband had provided for her care in the manner described. As the wife suffered dementia, it would have been open to apply for maintenance, had the need arose; however, she had been properly provided for and then died. Quite apart from her death, the Court concluded that the guardian had to demonstrate that had the wife made a property application during her lifetime she would have satisfied the requirements of s 79(2) and so demonstrated that it was just and equitable for an order to be made adjusting the parties’ existing property interests.[31]
[31] (2012) 247 CLR 108, [2], [48]-[49], [60]-[64].
The Court held that no basis was shown for a conclusion that it would be just and equitable to make an order adjusting property interests. The fundamental error identified by the High Court was that there had been no consideration of the effect upon the husband of the proposed order that there be a sale of the home in which he lived. The subsidiary error was that no consideration had been given whether a maintenance order would sufficiently have met the needs of the wife.
Accordingly, it is settled that the court must separately and first consider, and be satisfied, that it is just and equitable that an order be made adjusting property interests. Only then may it decide what order, if any, should be made. There will be circumstances, of which Stanford is an example, in which the court should conclude that it has not been established that it is just and equitable to make an order: see, e.g., Bevan & Bevan;[32] Chapman & Chapman;[33] Whent & Marband.[34]
[32] (2013) FLC 93-545.
[33] (2014) FLC 93-592.
[34] [2017] FCCA 1873; aff’d on appeal [2018] FamCAFC 95.
In considering what order, if any, should be made under s 79, the court may take into account the factors listed in s 79(4). For the purposes of separately addressing the requirements of s 79(2), it has been said that:
a)to require[35] the court to ignore the matters addressed by s 79(4) would be wrong as it would place an unwarranted fetter upon the wide discretion conferred by s 79(1);[36]
b)to consider s 79(4) factors does not conflate the issues presented by those provisions. To the contrary, for the purposes s 79(2), consideration of the matters addressed by s 79(4) may assist in the determination of the anterior question whether it is just and equitable to make an order under s 79, particularly in cases where the answer is not ‘clear cut’;[37]
c)in particular, the consideration of s 79(4)(a)-(c) factors is “likely to embrace much of the factual substratum on which any exercise of the discretion would be based”;[38]
d)it is not mandatory for the court to consider sub-s 79(4) factors.[39] Indeed, as Stanford illustrates, on some occasions those factors need not be considered in reaching a conclusion that it would not be just or equitable to make an order under s 79;[40]
e)if s 79(4) factors are considered, the court need not identify or quantify the parties contributions in the manner provided for by s 79(4). To do so would be to conflate ss 79(2) and 79(4) issues.[41]
[35] Bevan & Bevan (2013) FLC 93-545, [84] (Bryant CJ and Thackray J); [169] (Finn J).
[36] Chapman & Chapman (2014) FLC 93-592, [5].
[37] Bevan & Bevan (2013) FLC 93-545, [85].
[38] Chapman & Chapman (2014) FLC 93-592, [5].
[39]Chapman & Chapman (2014) FLC 93-592, [5], [85]; Scott & Danton [2014] FamCAFC 203, [23]-[24].
[40] Stanford, (2012) 247 CLR 108, [51]; Chapman & Chapman (2014) FLC 93-592, [27].
[41] Whent & Marband [2018] FamCAFC 95, [18]-[24].
While the matters in s 79(4) need not be ignored when s 79(2) is being separately addressed, they need not be examined to the same degree as is further required when deciding what order, if any, ought to be made. Equally, an answer to the question posed by s 79(2) is not to be answered solely upon consideration of the issues presented by s 79(4).[42] The matters identified in s 79(4) are permissible, but not the exclusive, criteria that require consideration. As Stanford confirms, the court must first identify what are the parties existing legal and equitable interests in property. As it also confirms, a critical countervailing consideration is the need to consider the effect which the proposed order may have on the respondent to the application. A range of matters may call for consideration in the unique circumstances of the particular case.
[42] Chancellor & McCoy [2016] FamCAFC 256, [42].
Is sub-s 79(2) satisfied?
The applicant submitted that it was just and equitable for there to be an adjustment of the parties existing interests in property. The respondent sought dismissal of the application for such adjustment on the express basis that it would not be just and equitable to do so. Thus, a potentially determinative issue in this case is whether it is just and equitable that the parties’ existing interests in their property should be altered.
Accordingly, the court is first required[43] to ascertain the parties existing interests in property. The parties existing legal and equitable interests in property were agreed. Those assets comprised the following:
Wife’s assets:
a)Suburb C home: $715,000
b)Motor Vehicle E: $ 30,000
c)Australian superannuation: $162,000
d)English pension scheme: $ 27,000
[43] Whent & Marband [2018] FamCAFC 95, [5] (Strickland, Ainslie-Wallace and Foster JJ).
Husband’s assets
a)Motor Vehicle F: $ 34,000
b)Motorcycle: $ 6,000
c)Australian superannuation: $132,000
In the way that the case was conducted, certain miscellaneous assets and all liabilities were left out of consideration in settling upon the parties agreed list of existing legal and equitable interests. For those reasons, it is not necessary to inquire as to, or determine, the position in relation to any disputed assets or liabilities.
While it is not possible to chart the ‘metes and bounds’ of the discretion posed by s 79(2), the provision calls attention to a variety of factors. For these purposes, I have focused upon each of the parties’ submissions.
Although in many cases, the threshold requirement to establish that it is just and equitable for there to be an adjustment of interests in property is readily satisfied by the parties cessation of common use of property as brought about by the ending of their relationship, the present case does not fall within that category. Here, the case which the parties brought forward for determination was whether it was just and equitable for there to be any adjustment of interests in their property interests.
This is not a case which the parties relied upon any formal or informal non-binding agreement as to how their property interests would be divided.[44] Nor was there evidence that the parties had made provision for the other for any testamentary dispositions by their wills.[45]
[44] CfBevan&Bevan [2014] FamCAFC 19, [82].
[45] Cf Stanford (2012) 247 CLR 108, [6].
While the parties enjoyed the common use of property for some time, their relationship was of relatively brief duration. There was some dispute as to whether it began in late 2010 or early 2011. I have found that they had a relationship of five years nine months. The circumstance that the common use of property came to an end could not of itself support a conclusion that it was just and equitable to make an order. As Whent & Marband[46] illustrates, to approach the question on the basis that a finding the parties common use of property has ended requires, without more, a conclusion that s 79(2) is satisfied, is to impermissibly confine the operation of the discretion conferred by that provision. Conversely, where the parties’ relationship was of long duration and the assumption which they made as to the common use of their property is at an end, this may be a powerful factor in favour of a conclusion that it is just and equitable to make an order in such a case.
[46] [2018] FamCAFC 95, [11]-[14].
Further, the facts as found on the evidence above do not support an inference that the parties assumed they would always share in their assets and liabilities notwithstanding that their property was separately owned. Since the parties’ relationship ended, there has been no common use of their property at any time.
A significant consideration in this case is that it was characterised, quite deliberately, by financial autonomy and independence. In particular, the respondent’s Suburb C property was kept strictly separate in the parties dealings, with the respondent meeting all costs and discharging all liabilities in relation to her property. I have addressed the circumstances as to the Suburb C property above. The property was brought into the relationship by the respondent and although there was evidence of a significant loan being made by her parents so as to enable the dwelling to be constructed on that land, that loan was excluded from the parties agreed Asset Pool. There is no evidence to support a conclusion that this property was ever intended to comprise a joint asset of the parties. The circumstance that the parties commenced cohabitation meant that the Suburb C became a property which was the subject of their common use; it did not mean that it was ever intended to be joint property.
In all the circumstances of this case, I consider that, at best, a minimal contribution was made by the applicant to this property. On orthodox principles, his work around the property came nowhere near to supporting a conclusion that he had equity in that property.
Although the respondent had owned the Suburb D property, I have described above his equity in this property and how, by increasing the mortgage and borrowing monies from the respondent’s parents, he was able to discharge his obligation to pay his former de facto partner the sum of $155,000. I have also described that the net proceeds of sale from that property were applied (together with a further loan from the respondent’s parents), to the purchase of the applicant’s Motor Vehicle F. Further, insofar as the applicant received a redundancy payment, this too was applied in the reduction of his liabilities to the respondent’s parents. Objectively, none of those matters can be said to establish any sort of contribution to the parties’ Asset Pool. Rather, the fact he was borrowing large sums confirms his incapacity to make financial contributions.
I have also considered the relative autonomy within which the parties conducted their financial affairs during the relationship. Again, aside from the establishment of a joint account for living expenses, their financial resources were kept separate. When their relationship began, the respondent established the parties’ joint account and in respect of which it was agreed the parties would make contributions in a sum sufficient to cover weekly living expenses. Further, as noted, the applicant did not adhere to the arrangement to make those contributions and did not do so by reason of his impecunious situation after he was made redundant. Contrastingly, the respondent performed and observed her part of this arrangement throughout the period of the relationship.
Additionally, the respondent met the parties’ living expenses during the period for which the applicant was unemployed. Taking a broad view, it is fair to say that the respondent effectively bore the whole of the parties’ living expenses for at least half of the period of the relationship.
I also accept the respondent’s submission that, objectively, the applicant has made no sacrifice or compromise of his financial position for the purposes of the relationship. For the reasons above, the applicant has in fact been significantly supported by the respondent. In addition to the support provided in respect of joint living expenses for the majority of the period that the applicant was unemployed, the respondent also assisted in the applicant’s retraining and development of new employment skills which, in the event, have resulted in, or at least significantly assisted, in his obtaining his current employment.
The contributions made by the parties at the commencement, during and after the end of the relationship have been examined. On any view, the respondent’s contributions both financial and non-financial, including those made on her behalf (i.e. by the respondent’s parents providing financial accommodation to the applicant to enable him to pay out his former de facto partner and to purchase his Motor Vehicle F), far outstripped the contributions made by the applicant to this relationship.
As concerns the welfare of the child, the Suburb C property is of real significance as providing a home for him.[47] It was not suggested that the effect of making an order for the adjustment of property interests would have an effect upon the earning capacity of either party.[48] However, I do consider that the existing orders[49] that have been made in relation to parenting matters, including those made by consent, have affected and will affect the respondent in a way which properly calls for consideration for the purposes of s 79(2). In short, those orders entail the assumption of significant responsibility by her for the care, maintenance and welfare of the child. Likewise, I do not ignore the sums that are being paid in child support[50] and any additional sums also being paid by the applicant.
[47] Act, s 79(4)(c).
[48] Act, s 79(4)(d).
[49] Act, s 79(4)(f).
[50] Act, s 79(4)(g).
I turn to address s 75(2) factors insofar as they were raised by the parties’ submissions and have not otherwise been addressed above.
The applicant is still in his early forties, in good health, has retrained and is in employment. The respondent is likewise in employment and in good health. The applicant is now earning a sum ($110,000) which is in excess of the respondent’s earnings ($94,000). I do not accept the applicant’s submission that their current incomes are only ‘comparable’. In addition, he has re-partnered with a person (whose earns $120,000 per annum) and occupies rented accommodation.
I have described above that the younger child of an earlier relationship is living with him and that he has those commitments to care and maintain for her. The child who is the subject of this proceeding spends two nights a fortnight with the applicant.
Neither party identified any other factor which might call for consideration under s 75(2)(o) of the Act or otherwise.
A countervailing factor that is of central importance in such applications is the need to consider the effect which the proposed order may have on the respondent to the application. I have considered the consequences that may follow for the respondent if relief be granted to adjust the parties’ property interests. This is not a case in which the primary relief sought by the applicant was for a sale out of court.[51] The possible sale of a home is a not uncommon consequence in such proceedings and does not necessarily feature as a prominent consideration in the determination of what relief is just and equitable in all the circumstances.[52] The fact, however, is that relief sought by the applicant is for the payment of a substantial sum of money. This brings into sharp relief why it may not be just or equitable to make an order in this case. The effect which an order would have upon the respondent would undoubtedly require that she raise the funds necessary to meet an obligation to pay the applicant the sum of $215,000 (being an amount equal to 30% of the value of the Suburb C property. In the circumstances of this case, I consider that the effect of making an order under s 79 is a significant consideration.
[51] cf Stanford, supra (2012) 247 CLR 108, [8], [46]-[47].
[52] cfBevan, supra [2014] FamCAFC 19, [90].
In addressing those considerations, the court may also have regard to the need to give the widest possible protection to a family, particularly those responsible for the care and education of dependent children.[53] It is also required, so far as possible, to discharge the duty imposed by s 81.[54]
[53] Act, 43(1)(b)-(c); cfNorbis v Norbis, (1986) 161 CLR 513, 521 (Mason and Deane JJ).
[54] Norbis v Norbis (1986) 161 CLR 513, 521.
The applicant referred me to a number of authorities which I have considered. I do not find the decisions to be of particular assistance.
Upon the principles considered above together with the findings which have been made on the evidence, I cannot find a principled basis on which to conclude that it would be just or equitable to make an order under s 79. Further, I am not satisfied that the applicant has discharged the onus of satisfying the court that it is just and equitable for an adjustment of property to occur. It follows that I consider it would not be just and equitable in the circumstances of this case for there to be any alteration of the parties’ existing property interests. Accordingly, the requirements of s 79(2) are not satisfied. Once the question posed by s 79(2) has been answered ‘No’, the application should be dismissed.
Alternative approach
Despite my conclusion that it is not just and equitable for there to be an adjustment of property interests, I proceed to assess what would be an appropriate result if the application had been determined on the alternative footing that I should consider what order (if any) was just and equitable in a final adjustment of the parties’ property interests.[55]
[55]Whent & Marbrand [2017] FCCA 1873, [338]; Fielding & Nicol [2014] FCWA 77, [55] (Thackray CJ).
A settled approach[56] that is generally taken to the determination of a claim for adjustment of property interests under the Act entails a four-stage process as follows:
a)first, identifying the parties’ assets, liabilities and financial resources at the date of hearing; calculating the net value of their property;
b)secondly, ascertaining the parties’ contributions (both financial and non-financial), within the meaning of par 79(4)(a)-(c), and then determining the contribution based entitlements of the parties, expressed as a percentage of the net value of their property;
c) thirdly, giving consideration to the other factors prescribed by par 79(4)(d)-(g), including the matters, so far as relevant, as referred to in s 75(2) so as to decide if any further adjustment to the percentage assessment of contributions is warranted;
d)fourthly, considering the overall effect of those findings and determinations and resolving what order is just and equitable in all of the circumstances.
[56]Hickey & Hickey; the Attorney General for the Commonwealth of Australia (2003) FLC 93-143, [39] (Nicholson CJ, Ellis and O’Ryan JJ).
A holistic approach should also be taken when deciding an application for adjustment of property interests. This approach permits that a global assessment may also be appropriate.
However, the four-stage process articulated in Hickey need not be followed rigidly.[57] The Full Court has affirmed that a holistic approach should be made when deciding an application under s 79.[58] Where it is said that a holistic approach should be made, this is to be understood as permitting that a global re-assessment of the matter is appropriate. It is also to be understood as reinforcing the need to move beyond an assessment that is expressed purely in percentage terms and to consider the real impact, in money terms, as being the critical issue in the case. In particular, where any additional allowance is to be made in favour of one party by reason of s 75(2) factors, regard may be had to the disparity in money terms of the effect of that additional allowance.[59]
[57]Bevan & Bevan [2014] FamCAFC 19, [18]-[19] (Bryant CJ and Thackeray J), [97] (Finn J agreeing).
[58]Wallis & Manning [2017] FamCAFC 14, [23]; citing Dickons & Dickons (2012) 50 Fam LR 244, [24].
[59] Clauson & Clauson (1995) FLC 92-595, 81,911 (Barblett DCJ, Fogarty and Mushin JJ).
I have identified the parties’ existing assets and liabilities and also made findings as to their financial resources.
I have also given consideration to the parties’ contributions, financial and non-financial, direct and indirect, including those made by or on behalf of a party. Having regard to the findings I have made, there was a radical difference between the parties’ respective contributions as at the commencement of their relationship. Further, while the differential in contributions was not nearly as pronounced during their relationship, nonetheless, the facts readily support a conclusion that the respondent’s financial contributions far exceeded those of the applicant. In addition, as noted, financial support was also provided on behalf of the respondent in the form of the loans made by her parents to the applicant for the purposes described earlier. I am prepared to allow in the applicant’s favour that the parties non-financial contributions and in particular as respect of the care of the child were roughly equal.
Contrastingly, the parties’ post-separation contributions have not been ‘roughly equal’. Indeed, it is undeniable that the applicant has provided very little in the way of financial support, leaving that essentially to the respondent. In the same way, as concerns non-financial contributions, post separation, the child has spent time with the applicant on alternative weekends and during school holidays.
As concerns other factors, I do not see that the making of an order would have an effect upon the earning capacity of either party. I have already addressed the parties’ existing consent parenting orders and which will have the effect that the respondent will shoulder significant responsibility for the care and welfare of the child. I have also addressed the question of child support which I take into consideration for the purposes of determining this matter on this alternative approach.
Insofar as they are relevant, s 75(2) factors have been considered and I incorporate those findings for present purposes. In this context, I have given consideration to the parties’ financial resources and, as noted: (1) I do not accept that the parties incomes are comparable; (2) I recognise that the applicant’s partner has a higher earning than either of the parties.
While it is clearly inappropriate to adopt an over-zealous approach in the ascertainment of the parties’ contributions, the authorities emphasise that what is of immediate importance is to recognise the disparity between the parties’ respective contributions. By reference to the parties agreed Asset Pool, the total of the applicant’s assets[60] is $172,000 while the total of the respondent’s assets is $920,000.
[60] Inclusive of superannuation interests.
The disparity between those interests can properly be described as being an accurate reflection of what the parties brought into the relationship (albeit that some are in slightly different form). While the respondent brought the Suburb C property to the relationship, the applicant brought, in effect, his equity in the Suburb D property. His equity in that property is now represented by his Motor Vehicle F motor vehicle. Otherwise, the parties’ superannuation entitlements are a reflex of the contributions that have been made arising from their employment. There was no suggestion that either of the parties had made additional contributions to their superannuation funds.
Having regard to all of those matters, I consider that a global assessment is appropriate in this case. Conformably with the requirements to take into account the matters prescribed by s 79(4) of the Act for the purposes of considering “what order (if any) should be made under” s 79, I conclude that it is just and equitable not to make any order adjusting the parties existing interests in their respective property. For those reasons, the property application must be dismissed.
Conclusion
Although the parties’ submissions addressed the nature of the relief that was sought, having regard to the conclusions I have reached, it is appropriate to address the changeover regime for the child’s spend time with the applicant and otherwise to dismiss the proceeding.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 9 December 2019
- AGLC
- BABRAY & BABRAY [2019] FCCA 3514
- Case
- [2019] FCCA 3514
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it was just and equitable to make an order adjusting the property interests of the parties under section 79 of the Family Law Act 1975 (Cth), considering the applicant's contributions and financial activities. In relation to parenting, the court needed to make orders regarding the arrangements for the child's changeovers, addressing the specific concerns raised by the parties regarding driving responsibilities and authorised attendees.
On the property application, the court applied the principles established in *Stanford & Stanford*, considering the applicant's contributions during and after the relationship, and whether any adjustment to property interests would be just and equitable. The court found that the applicant's financial activities, including the acquisition and sale of property and subsequent borrowings, did not warrant an adjustment of property interests under section 79. Consequently, the application for an adjustment of property interests was dismissed. For the parenting application, the court made orders varying existing arrangements, specifying that the applicant father would be responsible for collecting and delivering the child during the Australian Rules football season, while the respondent mother would be responsible for deliveries on alternate Friday evenings for the remainder of the year. The court also authorised the applicant's eldest child to undertake changeovers upon reaching the age of 22.
Orders
Orders of the court
1.
Paragraphs (4), (8) and (9) of the Order made on 26 March 2019, by consent, be varied in accordance with paragraphs (2)-(3) of this Order.
2.
Save as otherwise as may be agreed in writing by the parties, for the purposes of changeover, during:
(a) the period of the Australian Rules football season (as determined by the fixture of the Australian Football League and excluding all finals), the applicant father collect and deliver the child, X born on … 2013 (Child) at the commencement and conclusion of his time to be spent with the applicant; and
(b) the remainder of each year, on each Friday evening on alternate weekends the respondent mother deliver the Child to the applicant’s home at the commencement of his spend time.
3.
In addition to the persons who are authorised by paragraph (9) of the Order made on 26 March 2019, the applicant’s eldest child be authorised to undertake changeovers upon her attaining the age of 22 years.
4.
The application for an adjustment of property interests be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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