BARBARY & BARBARY
[2016] FCCA 1895
•26 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARBARY & BARBARY | [2016] FCCA 1895 |
| Catchwords: FAMILY LAW – Property – Application for Property Orders – contributions of the parties – whether there should be any adjustment under Family Law Act 1975 (Cth) s.75(2) – adjustment in favour of the wife – just and equitable. WORDS AND PHRASES – Judicial Officer – means a Judge or a Magistrate. |
| Legislation: Family Law Act 1975(Cth), ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79, 106A Judicial Officers Act 1986 (NSW), s.3 |
| Cases cited: Biltoft & Biltoft (1995) 19 Fam LR 82; FLC 92-614 Black & Kellner (1992) 15 Fam LR 343; FLC 92-287 Hickey & Hickey (2003) 30 Fam LR 35; FLC 93-143; [2003] FamCA 395 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Ogilvie v Adams (1981) VR 1041 Stanford v Stanford (2012) 247 CLR 108; 47 Fam LR 481; FLC 93-518; [2012] HCA 52 Weir & Weir (1992) 16 Fam LR 154; (1993) FLC 92-338 |
| Applicant: | MS BARBARY |
| Respondent: | MR BARBARY |
| File Number: | SYC 3877 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 8-10 July, 11 August 2015 |
| Date of Last Submission: | 22 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | SK Law |
| Counsel for the Respondent: | Mr Millar |
| Solicitors for the Respondent: | Fox & Staniland Lawyers |
ORDERS
Within six (6) weeks of the date of these Orders the Respondent Husband is to do all acts and things and execute all deeds, documents and instruments as may be necessary to transfer to the Applicant Wife all of his right, title and interest in the property situate at and known as Property D in the State of New South Wales and being the whole of the land in Lot (omitted) in Deposited Plan (omitted).
Within six (6) weeks of the date of these Orders the Husband is to pay to the Wife the sum of $261,158.50.
The Wife is declared to be the sole legal and beneficial owner to the exclusion of the Husband of the following items:
(a)all monies standing to her credit in any bank accounts in her sole name;
(b)shares with (omitted) and any other shares in any company in her name or possession;
(c)all superannuation entitlements and benefits in her name;
(d)the Lexus (omitted) motor vehicle currently registered in her name;
(e)her interest in the business known as (omitted);
(f)all furniture, furnishings and effects in her possession; and
(g)all other assets of whatsoever nature and kind currently in her name or possession.
The Husband is declared to be the sole legal and beneficial owner to the exclusion of the Wife of the following items of real property:
(a)the property situate at and known as Property G in the State of New South Wales being Lot (omitted) in Strata Plan (omitted);
(b)the property situate at and known as Property S in the State of New South Wales being Lot (omitted) in Strata Plan (omitted); and
(c)the property situate at and known as Property K in the State of New South Wales being the whole of the land in Lot (omitted) in Deposited Plan (omitted).
The Husband is declared to be the sole legal and beneficial owner to the exclusion of the Wife of the following items:
(a)all monies standing to his credit in any bank accounts in his sole name;
(b)all shares with (omitted) and any other shares in any company in his name or possession;
(c)all of his interest in (omitted) Pty Ltd;
(d)all superannuation entitlements and benefits in his name;
(e)all furniture, furnishings and effects in his name or possession; and
(f)all other assets of whatsoever nature or kind currently in his name or possession.
The Wife is to indemnify the Husband and keep him indemnified in respect of:
(a)any money owing to Mr D by way of personal loan;
(b)all credit card debts in her name; and
(c)any other debt currently in her sole name.
The Husband is to indemnify the Wife and keep her indemnified in respect of:
(a)any money owing to the (omitted) Bank by way of loan;
(b)any amount claimed to be owing to Ms F also known as Ms F ;
(c)all credit card debts in his name; and
(d)any other debt currently in his sole name.
In the event that either party refuses or neglects to execute any deed, document or instrument within seven (7) days of that deed or instrument being forwarded to him or her or his or her solicitor then the Registrar or a Deputy Registrar of the Court at the Sydney Registry is appointed under the provisions of section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the party who has refused or neglected to do so and to do all acts and things necessary to give validity to the operation of the deed, document or instrument and the party in default must pay all reasonable costs incurred by the party not in default for the purpose of enforcing these Orders.
The Applicant Wife and the Respondent Husband are to have equal shared parental responsibility for the children of the marriage X born (omitted) 2001 and Y born (omitted) 2004.
The children X and Y are to live with the Wife and spend time with the Husband as follows:
(a)During the school term:
(i)each alternate weekend from 4:30 pm until the commencement of school on the Monday morning PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday morning; and
(ii)every Tuesday from 4:30 pm until the commencement of school the following morning;
(b)for the school holidays at the end of the first, second and third school terms in each year:
(i)for the first week of the school holidays in 2016 and all even numbered years thereafter commencing at 9:00 am on the day immediately after the last day of the school term and concluding at 5:00 pm on the middle Saturday of the school holiday period; and
(ii)for the second week of the school holidays in 2017 and all odd numbered years thereafter commencing at 9:00am on the middle Saturday of the school holiday period and concluding at 5:00pm on the day before the children are required to attend school at the commencement of the next school term;
(c)for the Christmas/January school holidays from 9:00am on 2 January until 5:00 pm on 16 January in each year;
(d)from immediately after school until 7:30pm on each of the children’s birthdays if the day falls on a school day or from 10:00 am until 2:00pm if the birthday falls on a day when the children are not required to attend school;
(e)from immediately after school until 7:30pm on the father’s birthday if the day falls on a school day or from 10:00am until 2:00pm if the birthday falls on a day when the children are not required to attend school;
(f)on the weekend in which Father’s Day falls from 4:30pm on the Friday until the commencement of school on the following Monday;
(g)from 9:00am on Christmas Eve until 12:00 noon on Christmas Day in 2016 and all even numbered years thereafter and from 12:00 noon on Christmas Day until 5:00pm on Boxing Day in 2017 and all odd numbered years thereafter.
Notwithstanding the provisions of the immediately preceding Orders, the Husband’s time with the children will be suspended on:
(a)The Wife’s birthday; and
(b)The weekend in which Mother’s Day falls.
Changeover where the children go from the care of one parent to the care of the other parent in accordance with these Orders will take place at the children’s schools or the Wife’s residence as the case may be.
Both parents are at liberty to communicate with the children by telephone at all reasonable times and the parent with whom the children are living or spending time as the case may be is to facilitate the calls.
Each parent must keep the other parent informed of his or her current residential address, mobile and landline telephone numbers and advise the other parent of any change to that address or telephone number within 24 hours of the change occurring.
If either of the children is injured, requires medical treatment or hospital admission the parent who has the care of the children must immediately and as soon as possible notify the other parent by telephone or text message.
Both parents are permitted to liaise directly with the children’s school or schools and sporting or extra-curricular activity organisations to receive notices, information, newsletters, reports and information about school photographs.
Both parents are permitted to liaise directly with the children’s medical practitioners or any other treating health professional to receive all information, reports, diagnoses, prognoses or medical results.
If either of the children requires any elective or voluntary dental or medical treatment, each parent is to communicate the problem to the other parent within 7 days and provide copies of any report or correspondence or advice obtained from the child or children’s treating medical practitioner or dentist.
Both parents are at liberty to attend the children’s school or schools for functions, performances, activities, parades, prize-giving ceremonies, special assemblies or other events to which parents of children attending the school are ordinarily invited to attend.
If either parent wishes to remove either or both of the children from the Commonwealth of Australia for a holiday, that parent must only take the child or children to a country that is a party to the Hague Convention on the Civil Aspects of International Child Abduction unless otherwise agreed in writing by the other parent, and the parent wishing to take the child or children out of the Commonwealth of Australia must:
(a)inform the other parent in writing no less than 14 days prior to the proposed date of departure of the flight details and travel itinerary;
(b)inform the other parent in writing of the addresses and contact details of all places where the child or children will be staying; and
(c)inform the other parent in writing as to the identity of any other person who will accompany the child or children and the parent on the trip.
Neither parent is to take either or both of the children out of the Commonwealth of Australia for a holiday during school term time unless with the consent in writing of the other parent.
The parents are restrained from:
(a)discussing these proceedings with either of the children or showing either of the children any documents connected with these proceedings; or
(b)denigrating or criticising the other parent in the presence or hearing of either or both of the children or permitting any third person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Barbary & Barbary is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3877 of 2013
| MS BARBARY |
Applicant
And
| MR BARBARY |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Wife for parenting and property Orders.
The parties have two children, X, who was born on (omitted) 2001 and Y, who was born on (omitted) 2004.
X is now 15 years old. Y is about to turn 12.
Both of the children live with the Wife and spend regular time with the Husband in accordance with a Parenting Plan agreed by the parties on 26th August 2013.
The parties also have property issues to resolve, particularly concerning the former matrimonial home at Property D, New South Wales, which is currently occupied by the Wife and the two children.
Background
The parties were married on (omitted) 2000 and separated under the one roof on 9th November 2012. The Husband left the matrimonial home on 14th July 2013 and went to live with his mother in (omitted).
The Wife was born on (omitted) 1969 and the Husband was born on (omitted) 1970.
On (omitted) 1990 the Husband purchased a property at Property K for $44,000.00 and built on it to create properties Property K1 & K2.
On (omitted) 1999 the Husband purchased a property Property G from his parents. At the same time he entered into a loan agreement with them for an amount of $400,000.00. He entered into a further agreement with them about the payment of interest on 7th January 2000, shortly before the parties were married.
The parties were married on (omitted) 2000.
On (omitted) 2000 the Husband sold the property at Property K2 for $217,500.00.
On (omitted) 2000 the Husband purchased a property at Property S for $365,000.00.
In August 2000 the Husband and Wife purchased a property at Property M for $194,000.00.
On 16th March 2001 the company (omitted) Pty Ltd was incorporated.
The parties’ daughter X was born on (omitted) 2001. The Wife suffered an injury during the child’s birth. She took maternity leave for eight months and then returned to work part-time.
On an unspecified date in 2004 the husband obtained a loan from (omitted) Pty Ltd for $140,000.00.
The parties’ son Y was born on (omitted) 2004.
In June 2005 the Wife received the sum of $364,000.00 as medical negligence compensation for injuries sustained during X’s birth.
On (omitted) 2006 the parties purchased the property at Property D for $728,000.00.
In October that same year the parties sold the Property M land for $390,000.00.
In June 2008 the parties obtained a loan of $400,000.00 from the (omitted) Bank.
The Husband received a redundancy payment of $72,890.00 from his employer in 2008.
In June 2008 the parties invested $400,000.00 with the Husband’s cousin, Mr J, for a proposed development at (omitted) in Queensland.
In August 2008 the parties invested the sum of $300,000.00 in response to an approach by one Mr F.
The Husband’s father died on (omitted) 2010.
On 9th November 2012 the parties separated but remained living under the one roof.
On 14th July 2013 the Husband left the matrimonial home and commenced living with his mother.
On 26th August 2013 the parties signed a parenting agreement.
On 1st November 2014 the Husband refinanced the mortgage on the former matrimonial home.
The Wife was made redundant from her employment in April 2015.
Parenting Orders Sought
The parties both seek parenting Orders.
The Wife seeks orders in accordance with her Reply filed on 4th March 2014, which are, in summary:
a)the parties are to have equal shared parental responsibility for the two children;
b)the children are to live with the Wife;
c)the children are to spend time with the Husband:
i)each alternate weekend during the school term from Friday afternoon until Monday morning;
ii)every Tuesday during the school term from 4:30pm until 7:15am on Wednesday;
iii)the same arrangements are to continue during the school holidays except that the Husband should notify the Wife a month before the start of each school holiday if he wishes to spend other times with the children;
iv)10:00am on Christmas Eve until 4:00pm on Christmas Day alternating with 4:00pm on Christmas Day until 4:00pm on Boxing Day; and
v)lunch with the Husband on Father’s Day; and
vi)other ancillary orders.
The Husband seeks orders as set out in his Case Outline, which are, in summary:
a)the parties are to have equal shared parental responsibility for the children;
b)the children are to live with the Husband and Wife in an equal time arrangement from after school on the Friday of one week in each fortnight until 4:00pm on the following Friday;
c)the children would spend time with each parent on their birthdays;
d)9:00am on Christmas Eve until 12:00 noon on Christmas Day alternating with 12:00 noon on Christmas Day until 5:00pm on Boxing Day;
e)the children would spend from 9:00am to 5:00 pm on Father’s Day with the their Father and from 9:00am to 5:00pm on Mother’s Day with the their Mother;
f)orders setting out arrangements if either party wishes to remove the children from the Commonwealth of Australia for a holiday during school holiday time, including a restriction on the children only being taken to a Hague Convention country and providing for each party to give the other party at least 14 days’ notice;
g)a restriction on the parents discussing the proceedings with the children;
h)a non-denigration order; and
i)other ancillary orders.
Property Orders Sought
The Wife seeks property orders as set out in a Minute of Order handed up by her Counsel, Mr Schonell, on the first day of the hearing.
The Wife’s proposed orders are, in summary:
a)Within 42 days the Husband is to transfer his interest in the former matrimonial home at Property D to the Wife;
b)Within 42 days the Husband is to pay the Wife the sum of $600,000.00;
c)The parties would otherwise be entitled to all items of personal property standing in their name or possession; and
d)In the event either party refuses or neglects to execute any necessary deed or instrument then the Registrar of the Court is to be appointed to do so in place of the defaulting party in accordance with s.106A of the Family Law Act 1975 (Cth).
For his part, the Husband seeks property orders as set out in his Case outline. They are, in summary:
a)Within 14 days the wife should pay the Husband the sum of $2,674.00 being her 50% share of the Court Expert valuation fees;
b)Within 45 days the Husband should transfer all his right title and interest in the former matrimonial home at Property D to the Wife;
c)The Wife should pay to the Husband the sum of $300,000.00;
d)If the Wife does not pay the money to the Husband, the property at Property D is to be sold by public auction with the sum of $300,000.00 being paid to the Husband, with interest, and the balance being paid to the Wife;
e)The Wife is to be the sole legal and beneficial owner of all her personal property, including money, shares, a Lexus motor car, superannuation, interest in a business, furniture and furnishings and other personal items;
f)The Husband is to be the sole legal and beneficial owner of personal property being money, shares, superannuation, his interest in (omitted) Pty Ltd, furniture and furnishings and other personal items;
g)The Husband is to be the sole legal and beneficial owner of real estate at:
i)Property G;
ii)Property K; and
iii)Property S.
h)If either party refuses or neglects to execute any necessary deed or instrument a Judicial Officer of the Federal Circuit Court is to be appointed to do so in place of the defaulting party in accordance with s.106A of the Family Law Act 1975.
Evidence and Submissions
The Wife relied on the following affidavits:
a)her affidavit of 23rd June 2015;
b)her Financial Statement filed on 23rd June 2015; and
c)the affidavit of the Court Expert Mr A of 2nd July 2015.
The Husband relied on the following affidavits:
a)his affidavit sworn 19th June 2015;
b)his Financial Statement filed on 22nd June 2015;
c)the affidavit of his mother, Ms F, sworn 1st July 2015;
d)the affidavit of the Court Expert Mr A of 2nd July 2015; and
e)the affidavit of Mr P sworn 7th July 2015.
There was a Family Report prepared by Ms K, a Family Consultant at the Sydney Registry of the Court. She was required for cross-examination and her evidence was taken on the last day of the hearing, after the parties had given their evidence.
The Wife gave oral evidence and was cross-examined by Mr Millar of Counsel for the Husband.
The Husband gave oral evidence and was cross-examined by Mr Schonell of Counsel for the Wife. Ms F also gave oral evidence and was cross-examined by Mr Schonell.
Mr A and Mr P were not required for cross-examination.
Mr Schonell of Counsel was critical of the Husband’s credit when giving evidence about financial transactions, inviting the Court to consider the observations of the Full Court of the Family Court in Weir & Weir[1]and Black & Kellner[2]. Apart from criticising the credit of the Husband, he also submitted that the credit of the Husband’s mother was called into question, particularly in her denial of the fact that she was holding funds on behalf of her son.
[1] (1992) 16 Fam LR 154; (1993) FLC 92-338
[2] (1992) 15 Fam LR 343; FLC 92-287
In comparison, Mr Schonell described the Wife’s evidence as “consistent…forthright…unwavering”.[3]
[3] Transcript 11.8.2015 page 20
Counsel for the Wife also referred the Court to the decisions of Ogilvie v Adams[4] and Biltoft& Biltoft[5].
[4] (1981) VR 1041
[5] (1995) 19 Fam LR 82; FLC 92-614
As to contributions, it was conceded that the Husband had made initial contributions but those contributions were, to an extent, equalised by the Wife’s $360,000.00 compensation payment which was used directly for the acquisition of the former matrimonial home. It was further submitted that the Court would come to the conclusion that with that large contribution by the Wife in a relationship that spanned 13 years and produced two children the parties’ contributions should be regarded as equal.
Mr Schonell then submitted that there should be a further 10% adjustment in favour of the Wife based on the facts that:
a)The Husband earns considerably more than the Wife;
b)The Wife will remain the primary carer to the parties’ two children; and
c)The conduct of the Husband in attempting to conceal hundreds of thousands of dollars in funds (see s.75(2)(o) of the Family Law Act).
As to the parenting issues, Mr Schonell submitted that the best interests of the children indicated that the status quo should remain and the orders sought by the Mother should be made. The Father, he submitted, was proposing an equal time week on, week off approach that would be unworkable. He submitted that the Husband did not fully appreciate what would be required for a week on/week off arrangement to work.
The parties clearly do not communicate well.
The children’s views were inconsistent. Y wanted no change, whilst X is clearly emotionally struggling and wanted to keep all parties happy. Change to a new regime would not be in either child’s best interests.
Mr Millar of Counsel submitted that the contributions of the Husband should be assessed at 60% by him as opposed to 40% by the Wife. As for s.75(2) factors, the only factor in considering the adjustments would be if the Court were to disagree that the parties’ earning capacities should be assessed as similar. He suggested a 3% adjustment to the wife, bringing the division of the net property as to 57% to the Husband and 43% to the Wife.
As to parenting issues, it was submitted that it was not in contest that the parties should have equal shared parental responsibility for the children. The Husband suggests that the children should live with their parents in a week about arrangement with changeover on weekends. Equal time commends itself because, he submitted:
a)it would reduce the number of changeovers from six per fortnight to two;
b)it would be more stable than the current arrangement;
c)shared care, though not equal, has been working well;
d)the parties came to this agreement without resorting to litigation and there is “very minimal conflict” between the parties; and
e)it would accord with X’s wishes.
The law to be applied in parenting proceedings
When a Court is considering making a parenting order in relation to a child, it must consider various matters under Part VII of the Family Law Act. First, the Court must consider section 60B of the Act, which sets out the objects of Part VII and the principles underlying those objects.
The Court must have regard to:
a)Section 60CA, which prescribes that the best interests of the child must be the paramount consideration;
b)Section 60CC, which sets out at s.60CC(2) and 60CC(3) how the Court determines what is in a child’s best interests;
c)Section 61DA deals with the presumption of equal shared parental responsibility; and
d)Section 65DAA applies when a Court makes an order providing for equal shared parental responsibility and requires the Court to consider equal time for a child with each parent or, failing that, substantial and significant time.
All of those matters have been considered so far as they are relevant.
The Proper Approach to determination of a Property Application
As a first step, the Court must follow the decision of the High Court in Stanford v Stanford[6] and consider, first of all, whether it would be just and equitable to make a property order under s.79(2) of the Act.
[6] (2012) 247 CLR 108; 47 Fam LR 481; FLC 93-518; [2012] HCA 52
The Court must consider this aspect before embarking on the four step process set out by the Full Court of the Family Court in Hickey & Hickey.[7] The four steps are set in the judgment at [39] require the Court to:
a)make findings about the identity and value of the property, liabilities and financial resources of the parties;
b)identify and assess the contributions of the parties;
c)identify and assess the other factors in s.79(4), particularly the matters referred to in subsection 75(2); and
d)resolve what order is just and equitable in all the circumstances.
[7] (2003) 30 Fam LR 35; FLC 93-143; [2003] FamCA 395
Just and equitable
The parties were divorced by Order of this Court made 10th November 2015. The Divorce Order became effective on 11th December 2015.
The parties have been separated since 14th July 2013 and have been involved in litigation about their children and their property since the Wife filed her Initiating Application on 29th October 2013.
In all the circumstances it is just and equitable to make property settlement orders.
The Parties’ Assets and Liabilities
The Court has the benefit of a Balance Sheet that was tendered on the last day of the hearing.
Non-superannuation Asset Pool
I find the value of the non-superannuation asset pool to be:
a)Property D $1,380,000.00[8]
[8] Affidavit of Mr A (Court Expert) 2.7.2015 Annexure “A”
b)Property G $540,000.00[9]
[9] Ibid Annexure “B”
c)Property K1 $530,000.00[10]
[10] Ibid Annexure “D”
d)Property S $645,000.00[11]
[11] Ibid Annexure “C”
e)Husband's (omitted) Bank Account $ 4,972.00
f)Husband's (omitted) Account $ 51.00
g)Husband's (omitted) shares $ 9,413.00
h)Wife's (omitted) shares $ 2,356.00
i)Wife's (omitted) Bank account $ 2,212.00
j)Wife's (omitted) Bank account $ 56.00
k)(omitted) Pty Ltd 1/3 share $ 99,096.00
l)Funds owed to husband by (omitted) PL $ 235,798.00
m)Wife's (omitted) motor vehicle $ 20,000.00
n)Wife’s household contents $ 7,500.00
o)Husband’s paid legal fees $ 42,732.00
p)Husband’s funds in solicitor’s trust a/c $ 56,558.00
q)Wife’s paid legal fees $ 36,000.00
Total $3,611.744.00
Liabilities
I find the parties’ liabilities to be:
a)Husband's (omitted) loan $298,000.00
b)Wife’s personal loan from Mr D $12,500.00
c)Wife's (omitted) MasterCard debt $1,200.00
Total $311,700.00
I am not satisfied that the evidence supports a finding that the Husband’s claimed debt to his mother of $400,000.00 plus interest should be regarded as a liability.
I find the parties’ liabilities to be $311,700.00
By deducting the liabilities of $311,700.00 from the non-superannuation asset pool of $3,611.744.00 I arrive at a total of $3,300,044.00.
I find the net total of the non-superannuation asset pool to be $3,300,044.00.
Superannuation
Both parties disclosed superannuation interests. I find the parties’ superannuation to be:
a)Husband's (omitted) Superannuation Fund $159,772.00
b)Wife's (omitted) Super $ 64,023.00
c)Wife's (omitted) Retirement Savings $ 4,628.00
Total $228,423.00
I find the total value of the parties’ superannuation to be $228,423.00.
Addbacks
The Balance Sheet shows the sum of $250,000.00 as rental income claimed by the Wife to have been retained by the Husband since January 2013. I am not satisfied as to the evidence of this curiously rounded sum.
By adding the net total of the non-superannuation asset pool, $3,300,044.00, to the total of the superannuation asset pool of $228,423.00 I arrive at a total of $3,528,467.00.
I find the net value of the parties’ superannuation and non-superannuation assets and liabilities to be $3,528,467.00.
The Contributions of the Parties
In my view the contributions favour the Husband.
The evidence shows that financial contributions of the Husband throughout the marriage outweigh those of the Wife. He brought substantial assets into the marriage, notably the properties at Property G and Property K into the marriage. True it is that the Wife made a substantial contribution of her personal injury compensation payout of $364,000.00 and made non-financial contributions as home maker and mother, being the children’s primary carer.
Even taking those factors into account, I agree with the submission of Mr Millar for the Husband that the contributions should be assessed at 60% to the Husband and 40% to the Wife.
I assess the contributions by the parties as 60% by the Husband and 40% by the Wife.
Other factors taken into account under subsection 79(4)(d) to (g) of the Family Law Act
Paragraph (d) of subsection 79(4) requires the Court to take into account the effect of any proposed order on the working capacity of either party. There does not appear to be any effect on either party’s working capacity of the Orders that I propose to make.
Subsection 75(2) matters
Paragraph (e) of subsection 79(4) requires the Court to take into account the matters referred to in subsection 75(2) of the Family Law Act so far as they are relevant.
The Wife was born on (omitted) 1969 and the Husband was born on (omitted) 1970. They are both in good health.
The Husband has a greater earning capacity than the Wife, who was made redundant from her employment in April 2015.
The parenting orders which are to be made will provide that the children will remain living in the primary care of the Mother although they will spend substantial and significant time with the Father. The two children are under the age of 18, being 15 years and nearly 12 years old. Thus, the younger child, Y, will need to be accommodated and provided for by the Mother, primarily, for the next six years.
Neither party has re-partnered.
Whilst it was submitted by Counsel for the Husband that any adjustment in favour of the Wife should only be 3%, I am persuaded by the submission of Counsel for the Wife that a 10% adjustment in favour of the Wife is called for, by reason of the Husband’s greater earning capacity and the fact that the Wife will remain the primary caregiver for the parties’ two children for the next six years.
By making an adjustment of 10% in favour of the Wife as a result of consideration of the s.75(2) factors, I assess the parties’ entitlements at 50% to the Husband and 50% to the Wife.
Just and Equitable
Having considered the above factors and noting that I am not persuaded that the children should spend equal time with the each parent, for reasons that will be set out in subsequent paragraphs, I must again consider whether, in all the circumstances, the proposed orders are just and equitable.
To my mind, justice and equity require that the Wife should be permitted to remain living in the former matrimonial home at Property D with the two children.
The net asset pool is $3,528,467.00. As the parties will each receive 50% of that amount, the entitlement of each party will be $1,764,233.50.
The Wife will retain the following assets:
a)Property D $1,380,000.00
b)(omitted) shares $ 2,356.00
c)(omitted) Bank account $ 2,212.00
d)(omitted) Bank account $ 56.00
e)Lexus motor vehicle $ 20,000.00
f)Household contents $ 7,500.00
g)Paid legal fees $ 36,000.00
h)(omitted) superannuation $ 64,023.00
(omitted) Retirement Savings $ 4,628.00
Total $1,516,775.00
The Wife will be responsible for the following liabilities:
a)Personal loan from Mr D $12,500.00
b)(omitted) MasterCard debt $ 1,200.00
Total $13,700.00
This brings the figure for the Wife to $1,503,075.00.
The Husband will retain the following assets:
a)Property G $540,000.00
b)Property K1 $530,000.00
c)Property S $645,000.00
d)(omitted) Bank Account $ 4,972.00
e)(omitted) Bank Account $ 51.00
f)(omitted) shares $ 9,413.00
g)(omitted) Pty Ltd 1/3 share $ 99,096.00
h)Funds owed by (omitted) PL $ 235,798.00
i)Paid legal fees $ 42,732.00
j)Funds in solicitor’s trust account $ 56,558.00
k)(omitted) Superannuation account $159,772.00
Total $2,323,392.00
The Husband will be responsible for his (omitted) Bank loan of $298,000.00.
This will bring the figure for the Husband to $2,025,392.00.
The Husband will need to pay to the Wife the sum of $261,158.50 to give her the amount to which she is entitled.
I will order that the Husband is to transfer his interest in the former matrimonial home to the Wife and pay to her the sum of $261,158.50.
I note that the Husband, in a proposed order under the provisions of s.106A of the Family Law Act, seeks that “a Judicial Officer of the Federal Circuit Court” should be appointed to execute any deed or instrument that either party refuses or neglects to execute.
It is not clear what is meant by the phrase “Judicial Officer” in this proposed order. Orders of this nature usually appoint the Registrar or a Deputy Registrar. Subsection 106A(2) prescribes that:
the court may appoint an officer of the court or other person to execute the deed or instrument…
The phrase “judicial officer” is not defined in either s.4 of the Family Law Act or s.5 of the Federal Circuit Court of Australia Act 1999 (Cth), which are the appropriate definition sections.
The phrase is, however, defined in State legislation, namely in s.3 of the Judicial Officers Act 1986 (NSW), as meaning a Judge, or a Magistrate.
It would seem to be unnecessary for a Judge of this court to be appointed to execute a deed or instrument in place of a defaulting party when the task can easily be performed by a Registrar or Deputy Registrar.
Parenting Orders
The essential issue between the parties is the amount of time that the children should spend with each parent. They agree that they should have equal shared parental responsibility for the children, which is an order that I propose to make in accordance with s.61DA of the Family Law Act.
However, on the making of such Order, the Court must have regard to the matters under s.65DAA of the Act.
Thus, the Court must first consider under s.65DAA(1) whether the children spending equal time with each parent would be both in the children’s best interest and reasonably practicable and, if so, consider making such an order. This is the husband’s proposal.
If the Court does not make such an order, it must consider under s.65DAA(2) whether the children spending substantial and significant time with each parent would be both in the children’s best interests and reasonably practicable and, if so, consider making such an order. This essentially is the Wife’s proposal.
I have had regard to the Family Report and to the evidence of the Family Consultant, Ms K.
The Family Report describes both children as loving and enjoying spending time with each of their parents and wanting to continue to do so. However, they have different views about a future parenting arrangement.
The older child, X, said that she wanted to spend equal time with both parents whereas the younger child, Y, said that he was content with the current arrangement.
The Family Consultant had this to say about the children’s expressed views:
It is important to consider each child’s emotional state when considering the weight that should be given to their wishes. X’s views appear to be influenced by the parent she perceives to need her support the most – her father. Y’s views are more likely to be a reflection of him being less worried about his parents.
…
Whilst X remains conflicted and troubled, it is assessed that it is difficult to give weight to her views as they are influenced by her feeling sorrow for her father rather than being a reflection of her actual views.[12]
[12] Family Report 2 June 2015 pages 15 and 16 at paragraphs [58] and [59]
Ms K went on to say at paragraph [60] of her Report:
It remains important for the children to spend significant time with their father, including some weekdays, to maintain a significant relationship with him and allow opportunities for him to partake in a range of normal activities with the children.[13]
[13] Family Report page 16 at [60]
The Family Consultant made these recommendations:
62.It is recommended that the parents have equal shared parental responsibility.
63.It is recommended that the children live with the mother and spend time with the father as per the current arrangement.
64.It is recommended that X be referred to an appropriately qualified psychologist to assist her in dealing with the effects of the parental separation.[14]
[14] Ibid pages 16 and 17 at [62]-[64]
Ms K gave oral evidence on the last day of the hearing. In cross-examination by Mr Millar, for the husband, she said:
And so, given her views, I felt that her views about spending more time with her dad were about, partly – yes, she loves her father and wants to spend with that – with her father. I appreciate that she would want to do that. But, also, there was an element of her feeling sadness and also guilt about their separation. That, being associated with her feeling that she somehow caused the separation, in her own mind – that she caused the separation – in her mind, she’s trying to resolve this issue. And so, for her, perhaps there was an issue about whether spending more time with her dad would alleviate some of that sorrow, and I’m not sure that that will, because there is an issue that needs to be resolved, and that’s – the answer is not spending more time with her dad.[15]
[15] Transcript 11.8.2015 page 16
I have considered this evidence very carefully. In determining what is I a child’s best interests, the Court must consider, amongst other things, the matters raised in s.60CC(3)(a), being any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give the child’s views. In this case, from the evidence of the Family Consultant, it would be overly simplistic for the Court just to accept the stated views of a troubled teenager feeling sadness and guilt about the separation of her parents.
I am not convinced that it would be either in X’s best interests, or that of her brother Y, to change the basic structure of the existing arrangement and bring about the radical change of equal time with each parent.
I have considered the submissions of Counsel for each party on this subject. It does not appear that the level of communication between the parents is good enough to allow an equal time week about arrangement to work. The Husband appeared to be overly optimistic in this regard, and I agree with the submission of Mr Schonell of Counsel for the Wife that the Husband did not fully appreciate what would be required for a week on/week off arrangement to work.
More frequent changeovers would not be of assistance either, in my view.
I am of the view that the children spending equal time with each of their parents would not be reasonably practicable.
However, it appears that an arrangement, not dissimilar to the arrangement that has been in force since 26th August 2013, whereby the children spend substantial and significant time with their father whilst living primarily with their mother would be both in the children’s best interests and reasonably practicable..
The Court is not bound by the proposal of either party. The Court is required to have regard to the best interests of the children when making parenting orders (MRR v GR[16]).
[16] (2010) 240 CLR 461; [2010] HCA 4
The Wife’s proposals for holiday arrangements appear to be unduly restrictive and verging on “micro managing”, giving the Mother a strong degree of control on the children’s time with their father. It would also appear that more time could reasonably be spent by the children with their father on special days. A simple lunch arrangement on Father’s Day would appear to be insufficient for the children to spend time with their father.
I will order that the children should spend substantial and significant time with the Husband, as I am satisfied that it is both in their best interests and reasonably practicable to do so.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 26 July 2016
Key Legal Topics
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Family Law
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