Barden and Vassa
[2018] FCCA 2625
•17 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARDEN & VASSA | [2018] FCCA 2625 |
| Catchwords: FAMILY LAW – Parenting – best interests of child – property adjustment – final orders made. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 75, 79 |
| Cases cited: Kowaliw & Kowaliw (1981) FLC 91-092 Aleksovski v Aleksovski (1996) FLC 92-705 |
| Applicant: | MS BARDEN |
| Respondent: | MR VASSA |
| File Number: | PAC 3398 of 2014 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 9, 10, 11, 12 October 2017 |
| Date of Last Submission: | 20 December 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 17 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Kenny |
| Solicitors for the Applicant: | Turner Freeman Lawyers |
| Counsel for the Respondent: | Ms K Beck |
| Solicitors for the Respondent: | McGirr Lawyers |
ORDERS
That the parties have equal shared parental responsibility of the child, [X] (“[X]”) born 2010.
[X] shall spend time and communicate with the Father as follows:
(a)During the school term:
(i)Week 1 – from Wednesday after school until Sunday 10:00am; and
(ii)Week 2 – from Thursday after school until Sunday 10:00am and so on.
(iii)Each school term, the parties shall have one full weekend with [X], being from Friday after school until Monday morning.
(b)Over the Easter period from the conclusion of school on Thursday until 5pm on Easter Sunday.
(c)On Father’s Day in the event [X] is not otherwise in the Father’s care the Father’s time in accordance with Order (2)(a) be extended until the commencement of school the following Monday.
(d)During the Term 1, 2 and 3 school holiday periods from the conclusion of the last school day of term until 10am on the second Saturday of the school holiday period.
(e)During the Christmas summer school holiday period for the first half of the school holidays in 2017 and each alternate year thereafter and the second half of the school holidays commencing 2018 and each alternate year thereafter.
At all other times, subject to the parenting Orders below, the child shall live with the mother.
[X] will spend time with the parent that she would not otherwise be with during the period 5pm Christmas Eve until 5pm Christmas Day.
[X] will spend time with the parent that she would not otherwise be with during the period 9am New Year’s Eve until 10am New Year’s Day.
[X] will spend time with the parent that she would not otherwise be living with by agreement and both parents will use their best endeavours to ensure that the other parent is able to spend some time with [X], noting that she may have extra-curricular activities on that day.
The Father’s time with [X] pursuant to Order 2(a) is suspended from 5pm on the day preceding Mother’s Day.
For the purposes of changeover that do not occur at school, the Mother or her agent is to deliver [X] to the paternal grandmother’s residence at Property A or such other place as agreed by the parties and the Father or his agent shall return [X] to the Mother’s residence or such other place as nominated by the Mother.
The Mother and Father shall notify the other parent by way of text or phone call in the event that they will be more than 15 minutes late for the purposes of either collecting or returning [X] at the commencement or conclusion of her spending time with the Father.
Each parent is permitted to travel with [X] outside of the Commonwealth of Australia upon compliance with the terms set out in Order 10 below. Each parent is permitted to travel with [X] once every two years for a period of no more than four weeks, unless there has been written agreement between the parties.
That pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth), both parties shall be entitled to take [X] or cause for [X] to be temporarily removed to a place outside of the Commonwealth of Australia on the basis that the following provisions have been satisfied:
(a)That the travelling parent shall first provide to the non-travelling parent at least two (2) months prior to any intended travel, the written details of the following:
(b)The names of all places outside of the Commonwealth of Australia where it is proposed that [X] is to travel (being countries, cities and towns);
(c)The proposed dates of travel including departure and return dates; and
(d)The contact telephone numbers, and addresses for all the places where it is proposed that [X] will be staying overnight when outside of the Commonwealth of Australia.
(e)That in the event the intended period of travel time exceeds three (3) weeks and does not occur wholly during a school holiday period the non-travelling parent must provide express written consent to the travelling parent.
(f)Not less than 14 days prior to the proposed date of [X]’s departure from the Commonwealth of Australia, the travelling parent must provide to the non-travelling parent the following further documents and information in writing:
(i)A photocopy of all return airline and/or shipping tickets for [X] evidencing [X]’s return travel to Australia taken from the original or the same referred to;
(ii)A copy of the relevant travel insurance policy verifying that whilst [X] is travelling outside the Commonwealth of Australia she is listed and covered on valid travel insurance policy for the duration of the time she is overseas;
(iii)Copies of all written itineraries for the actual overseas travel; and
(iv)Details in writing confirming the contact telephone numbers upon which [X] may be contacted whilst overseas and details in writing of all addresses of the places where [X] will be staying overnight when outside the Commonwealth of Australia.
(g)The above notice period is suspended in the event that the Mother is required to travel overseas in an emergency relating to her family and that the Mother be permitted to travel with [X] in the event of an emergency.
(h)Within 48 hours of receipt of itinerary and travel details pursuant to this Order, the non-travelling parent will provide their written consent to the travelling parent in accordance with Section 65Y Family Law Act 1975 (Cth).
(i)That for the purposes of facilitating [X]’s travel outside the Commonwealth of Australia pursuant to these Orders, and in the event [X] requires a current Australian passport, travel visas and/or other travel related documents for such travel, then both parties shall do all things necessary, sign all documents deeds and instruments and provide all necessary consents to facilitate the issue of an Australian passport, all required travel visas and all other travel related documents for [X] within seven (7) days of the non-travelling parent receiving a request from the travelling parent.
(j)The costs of any passport applications and photographs for [X]’s Australian passport and maintaining [X]’s Australian passports until eighteen (18) years of age shall be shared equally between both parents.
(k)The parties will each be solely responsible for the costs associated with any Visa application associated with their proposed travel.
(l)When [X] is not travelling, [X]’s Australian passports shall be held by the Father.
(m)Within 72 hours of [X]’s return to Australia, her passport is to be returned to the Father.
(n)[X]’s name shall be removed from the Airport Watchlist and PACE Alert system.
(o)The Court requests the assistance of the Australian Federal Police in the implementation of Order (10)(n) above.
The Mother and Father are both restrained from denigrating the other parent or a family member or allowing any other third party to do so in [X]’s presence or hearing.
The Mother and Father are restrained from saying or doing anything to discourage [X] from maintaining a good relationship with their respective families.
The Mother and Father do all things to facilitate [X]’s participation in such extra-curricular activities as [X] expresses a reasonable wish to pursue and the mother and father will consult with each other prior to [X] being enrolled in any extra-curricular activity that shall occur during the other parent’s time with [X].
Both parents and members of the paternal and maternal families be permitted to attend school and extra-curricular events that [X] is involved in.
Each parent must provide and keep up to date, the name/s and all contact details and give any authority and any consent necessary to any provider to ensure the other parent is able to contact and discuss and receive any and all information and reports as and when they are available on any matter in relation to [X], particularly with regard to the following any and all medical and health treating doctors, health practitioners, therapists, physiotherapist, health related professionals, dieticians and including alternative health treatments or care [X] may receive.
At the time of booking or as soon as practicable and prior to any consultation, each party must inform and keep the other party informed of all doctors, health care/medical professionals including school counsellors or alternative health care providers [X] attends and the initiating parent shall discuss the findings, outcomes and/or recommendations of such visits, emergency treatments or consultations with the other parent within two (2) days after the consultation.
Each parent is to authorise and allow all doctors, health care/medical professionals including school counsellors or alternative health care providers to discuss treatment/s, care, findings or outcomes in relation to [X] with the other parent.
In the event [X] is seriously ill or admitted to hospital, the parent who has the care of [X] shall notify the other parent as soon as possible.
Each parent must keep the other parent informed of their current residential address and provide written notice of any change in residential address, e-mail address and telephone numbers, including mobile and landline telephone numbers, within seven (7) days of any such change.
In the event that the parents are unable to come to an arrangement in relation to [X], the issue/s in dispute shall be mediated by Relationships Australia or a suitably qualified Family Dispute Resolution practitioner.
That in the event that each party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
The Father and Mother are restrained from discussing the breakdown of the relationship with [X].
That the Mother be permitted to obtain a paediatric assessment for [X].
That the parties shall do all such things necessary to follow the reasonable recommendations of the paediatrician engaged by the Mother for the purpose of providing an assessment for [X].
That within three calendar months after the date of these Orders the husband, should he wish to retain the Property A property situated at and known as Property A being the whole of the land contained in Certificate of Title Folio Identifier (“the Property A property”) shall:
(a)Pay to the wife the sum of $184,881;
(b)Cause to be paid the outstanding debt of $230,919 comprising business loan, overdraft and leases debt, referred to in the court’s final balance sheet as set out in its within judgment, with the wife to provide details of the relevant payee(s) to the husband’s solicitors to enable such payment by the husband;
(c)Do all things necessary to discharge the wife from the mortgage to Bank 1 secured over the Property A property.
That simultaneously with compliance by the husband with the preceding order, the wife shall do all such things as may be necessary to transfer to the husband the whole of her right title and interest in the Property A property.
That in the event that the husband fails to comply with Order (25) hereof within three calendar months after the date of these orders then the husband and wife shall do all things as may be necessary to list the Property A property for sale by auction with a real estate agent agreed and failing agreement with a real estate agent nominated by the President for the time being of the Real Estate Institute of New South Wales or his nominee upon the following terms and conditions:
(a)The auction shall take place within six weeks after the date three calendar months after the date of these orders or as soon as practicable, whichever is the later.
(b)The reserve price shall be as agreed between the parties and failing agreement as determined by the auctioneer.
(c)Both parties shall attend at the auction and in the event that the Property A property is passed in they shall negotiate with the highest bidder and shall accept any offer to purchase the Property A property at no less than 90% of the reserve price.
That in the event that the Property A property does not sell at auction or does not sell by private treaty within two weeks after the date of the auction, then the parties shall relist the Property A property for sale by auction at intervals of no more than six weeks upon the same terms and conditions as set out herein until the Property A property is sold.
That upon the Property A property being sold at auction the parties shall distribute the proceeds of such sale as follows:
(a)In payment of real estate agent’s commission and expenses on the sale.
(b)In payment of proper legal costs and disbursements of each of the parties of and incidental to the sale.
(c)In discharge of the mortgage to Bank 1 Account secured over the Property A property.
(d)In discharge of the Business Loan, Overdraft and leases debt, referred to in the court’s final balance sheet as set out in its within judgment.
(e)In adjustment of rates, levies and taxes on the Property A property.
(f)In payment of the balance then remaining to the parties as follows:
(i)To the wife, a sum representing 30% of the said balance, plus a cash payment of $8,260.
(ii)To the husband, the balance remaining.
(g)That as between the husband and wife, and subject to the above Orders, the husband and wife shall each respectively retain all interest in and entitlement to:
i)All personal property now in his/her respective possession or control.
ii)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
iii)All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of said party.
Leave to the parties to relist the proceedings on seven days’ notice in relation to any difficulty facilitating the Court’s Orders.
IT IS NOTED that publication of this judgment under the pseudonym Barden & Vassa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3398 of 2014
| MS BARDEN |
Applicant
And
| MR VASSA |
Respondent
REASONS FOR JUDGMENT
Introduction
This was the final hearing of parenting and property proceedings between Ms Barden (hereafter “the wife”) born 1971, now aged 47 years, and Mr Vassa (hereafter “the husband”) born 1973, now aged 45 years.
The husband works as a (occupation omitted) and the wife as a (occupation omitted). The wife hails from (country omitted).
The parties married and commenced cohabitation in 2006. There is one child of the relationship, [X] (hereafter “the child”) born 2010, now aged eight (8) years.
The wife and child left the family home in Property A in about April 2013 (however, as to the parties’ date of separation, the court refers to its findings below).
The child presently lives with the wife each week from 10:00 am Sunday until the commencement of school on Thursday (four days and nights) a week, and with the husband from after school Thursday until 10:00 am on Sunday (three days and nights).
The wife seeks parenting Orders, inter alia, that these arrangements largely continue with a slight amendment providing a full weekend with each parent each month.
The husband seeks parenting Orders, inter alia, that alter the current arrangements such that [X], during school terms, would live with him for four days and nights in Week 1, and for three days and nights in Week 2, and each school term, the parties have one full weekend with the child (being from Friday after school until Monday morning). He seeks other time with orders and related parenting Orders.
Both the wife and the husband seek an Order for equal shared parental responsibility.
Regarding the property proceedings, the principal asset of the parties at the date of the hearing is the former matrimonial home at Property A NSW (“the Property A property”). There are also savings, motor vehicles and superannuation funds.
The wife seeks, inter alia, by way of property Orders, that the husband cause to be paid to her two sums of money, $97,559, and $554,723, discharge the mortgage over the Property A property, in return for the wife transferring her interest in that property to the husband.
The husband seeks property Orders, inter alia, that the wife’s interest in the former matrimonial home be transferred to the husband, with the husband to discharge the mortgage over the Property A property.
Towards the end of the relationship, the wife received substantial settlement monies relating to a work injury she had suffered in 2005.
At the final hearing, allegations of waste were made against the wife, inter alia, through gambling.
Parties’ proposals
The wife ultimately sought Orders as set out in her proposed Minute of Order sent to the court on 1 December 2017.
The husband ultimately sought Orders as set out in his proposed Minute of Order sent to the Court on 20 December 2017.
Material relied upon
The wife relied upon the following documents:
a)Case Outline filed 5 October 2017;
b)Further Amended Initiating Application filed 5 October 2017;
c)Affidavit of Ms Barden filed 20 July 2017 (and accompanying exhibits);
d)Affidavit of Ms Barden filed 5 October 2017;
e)Affidavit of Mr G filed 20 July 2017;
f)Affidavit of Mr N filed 20 July 2017; and
g)Affidavit of Dr K filed 20 July 2017.
h)Updated Financial Statement of wife filed 12 October 2017.
i)Written submissions.
The husband relied upon the following documents:
a)Case Outline filed 5 October 2017;
b)Amended Response filed on 5 October 2017;
c)Affidavit of Mr Vassa filed 19 September 2017;
d)Notice of Risk filed 29 March 2016; and
e)Financial Statement filed 5 October 2017.
f)Affidavit of Mr M filed 3 October 2017, including his exhibited documents;
g)Written submissions; initial submissions and then a reply.
Certain documents were tendered in evidence:
a)Joint letter to the valuer Mr B dated 5 September 2017 (Exhibit A);
b)Joint Balance Sheet (Exhibit B);
c)Sleeve 3: Sydney Pain Management, clinical note entry dated 22 April 2010, clinical note entry, Tab F1 (Exhibit C) \;
d)Sleeve 1: Suburb S Club (omitted) (Exhibit D);
e)Document relating to the name of Suburb S Club (omitted) (Exhibit E);
f)Aide Memoire titled “Schedule of ATM withdrawals” (Exhibit F);
g)Two letters from McGirr Lawyers to Turner Freeman Lawyers dated 8 April 2016 and 30 August 2017, plus a further letter bundle (Exhibit G);
h)(business omitted) Pty Ltd Profit and Loss Statement year ended 30 June 2016; (business omitted) Pty Ltd Balance Sheet as at 30 June 2016; ATO Notice of Assessment for Ms Barden – year ended 30 June 2016 (Exhibit H);
i)Business Transaction Account, (business omitted), Bank 1 AC No ending (Exhibit I);
j)Exhibits to Mr M’s Affidavit: Bank 1 account pages 346 – 348; Pages 263 – 275; Pages 286 – 292 (Exhibit J);
k)Copy of text messages between Ms Barden and Mr Vassa (Exhibit K);
l)Letter from Super Fund A to Ms Parks, solicitor, dated 29 September 2017 re: superannuation interest of Mr Vassa to Ms Park (Exhibit L);
m)Sleeve 4, Clinical notes of Dr T 22 October 2013 to 22 May 2016 (4 pages) (Exhibit M);
n)Wife’s Summary of Individual Taxable income years 2005-2017 (Exhibit N);
o)Letter from Ms Parks, solicitor, to Ms Barden regarding costs notification (Exhibit O);
p)Family Report of Dr R dated 26 June 2017 and Child Dispute Conference Memorandum to Court dated 27 August 2015 (Exhibit P);
q)Mr Vassa’s Notice Of Assessments 2009 – 2016 (Exhibit Q);
r)Letter of Joint valuation of the Property B property 27 November 2014; Retrospective Valuation and Report of Mr B; Notation of 26 May 2015 (Exhibit R);
s)Wife’s copy individual taxation returns for years ended 30 June 2006 to 2016 and her draft individual taxation return for year ended 30 June 2017 (Exhibit S).
t)Husband’s copy individual taxation returns for years ended 30 June 2006 to 2016 (Exhibit T).
Financial disclosure
The husband submits (see his written submissions) that the wife has failed to make adequate financial disclosure, in various respects. The wife disputes this contention.
The husband asserts in his trial affidavit that in about March/April 2016 he became aware of all of the wife’s bank statements.
The Court refers to Exhibit G, being a bundle of correspondence between the parties’ respective solicitors relating to financial disclosure.
On 27 September 2017, by way of updated disclosure, the wife’s solicitors provided, inter alia, the wife’s draft, unfiled individual tax return for 2017, and draft unfiled trial balance for the wife’s company for the year ended 30 June 2017. This material had been provided by the wife’s accountant to the wife on 25 September 2017.
The wife provided to the husband, during the course of the trial, certain financial statements of the company for the year ended 30 June 2016, and some discrete bank statements. The wife’s updated Financial Statement was also filed with the Court during the course of the trial.
Ultimately, the Court had before it in evidence significant and relevant historical financial material relating to the wife’s bank accounts and that of her company, joint bank account material, and material relating to the husband’s bank accounts.
There was no evidence adduced by the husband to suggest that the wife had specific undeclared funds or assets.
The husband contended that the wife had failed to produce relevant bank account statements for bank accounts held by her prior to January 2011. There was no discrete significant cross-examination of the wife in this context. There was no relevant evidence before the court as to whether the wife had such documents in her possession, custody or control.
There was no discrete significant cross-examination relating to bank account statements, in evidence, prior to January 2011, including in relation to the parties’ joint bank account with Bank 2.
Whilst not removing the obligation upon litigants to make adequate financial disclosure without specific request, the Court observes that there is no discrete letter within Exhibit G from the husband’s solicitor’s to the wife’s solicitors requesting the wife’s bank statements for the period prior to January 2011.
The husband contended that the wife’s 2016 and 2017 company financial statements were belatedly supplied by the wife. As to the former, the Court observes that the 2016 financial statement material of this company (together with earlier financial material relating to this company) was referred to in the Affidavit of Mr N filed 20 July 2017. No submission was made by the husband that this affidavit had been served significantly late such as to have prevented relevant documents referred to in Mr N’s affidavit being requested by the husband’s solicitors and provided. In fact, no such request had been made prior to trial by the husband’s solicitors. In any event, the bank account statements of the wife’s company for the 2017 financial year confirm the receipt of income by the wife’s company as stated in the 2017 draft comparative company trial balance statement. As to the above company financial statements, and the wife’s updated Financial Statement, there was further cross-examination of the wife permitted by the court; relevant concessions were made by the wife, inter alia, as to the division, for taxation purposes, of expenses (such as motor vehicle, home office) between personal and business use.
The Court has carefully considered the evidence and competing written submissions of the parties in relation to the husband’s contentions that the wife has failed to provide adequate financial disclosure. The Court is not persuaded, having considered the correspondence tendered within Exhibit G, the husband’s evidence including his trial affidavit, the bank statements, credit card statements and other financial material in evidence (including the wife’s belatedly produced material), the wife’s cross-examination and her affidavit evidence in relation to financial disclosure, including the matters discussed above under “Financial Disclosure”, that there has been material financial non-disclosure by the wife.
The wife contended that the husband failed to make timely financial disclosure in relation to the sale of the Property B property; she only first ascertained its sale when she received the husband’s Financial Statement about March 2016. Ultimately, no submission was made by the wife that the husband held specific undisclosed funds relating to the sale of the Property B property. The Court rejects the wife’s contention in this context.
Property
Evidence
The husband is employed as a (occupation omitted) by the (employer omitted). He was born on 1972.
The wife was born on 1971. She works, on a contractor basis, as a (occupation omitted) with (employer omitted).
The wife was born in (country omitted). She arrived in Australia in about 2000. She became an Australian citizen in 2006.
In 2002 the husband settled the purchase of a home unit at Property B. The purchase price was $289,000. He had borrowed about $231,200 from the Bank 1. About $32,000 had come from the husband’s grandfather. The Property A property was rented out, including during the relationship of the parties.
In early 2005 the parties were engaged.
In mid-2005, the parties purchased the Property A property. The purchase price was $525,000. The parties mortgaged the full purchase price through the Bank 1. The husband used the Property B property as security to obtain the finance. The parties shared the expenses of the stamp duty and legal fees.
From the date of purchase of the Property A property up to about April 2010 the parties jointly and equally paid the mortgage. The mortgage was set up with two Bank 2 bank accounts in joint names. The parties also had a joint offset account where they each deposited savings and pending home loan repayments.
In 2005 the wife suffered a work-related injury. She had about four weeks off work, then resumed her work in an (occupation omitted) capacity, and later returned to (occupation omitted) in about 2007.
The parties were married in 2006 and commenced living with each other.
As at the date of marriage, the Property B property was valued between $380,000 and $390,000 (Exhibit R). The mortgage balance on the Property B property at this time was $195,000.
The parties caused to be carried out renovations to the Property A property in 2005/2006 with the overall cost being about $110,000. They had obtained a further bank loan, in joint names, in the sum of $25,000 for these renovations.
During the renovations, the paternal grandfather and paternal great grandfather gave the husband about $85,000 to put towards the renovations.
In about September 2009, the wife received a part payment for her workers compensation claim, in relation to her earlier work injury, and received $36,000 for pain and suffering, and whole person impairment, pursuant to the provisions of the Workers Compensation Act. She deposited this money into the parties’ Bank 2 offset account at about this time.
In September 2009 the wife received a lump sum termination payment from (employer omitted), her former employer, of some $38,975, which included accrued annual leave and long service leave. The wife had been employed with (employer omitted) since 2004, being about two years before the marriage.
The wife continued to receive her weekly workers compensation statutory salary in the amount of about $1,945 which was paid into her Bank 2 account. She continued to pay her share of the mortgage secured against the Property A property.
In about 2010, the parties refinanced the home loan on the Property A property. In 2010 the father received an amount of $25,000 from his parents to assist in this process.
The child was born on 2010.
After the child’s birth, the husband began to have problems with the maternal grandparents who were in Sydney from (country omitted), staying with the parties. This added stress to the relationship between the parties. The husband raised his concerns with the wife. The husband’s relationship with the maternal grandparents broke down and the parties began to argue. The husband communicated with the wife his wish for the maternal grandparents to stay in a hotel for the remainder of their time in Australia, which was objected to by the wife. The wife told the husband that if her parents were leaving the home that she would also leave.
Exhibit C is a clinical note entry for 22 April 2010, from the subpoenaed records of the Sydney Pain Management Centre. The entry for that date states, inter alia:
Psychology… Marital conflict, emotional abuse/domestic violence situation at home. Discussed husband’s aggressive, paranoid behaviour. Husband has behaved abusively towards [the wife] and her parents since birth of daughter [X]. Husband has threatened [the wife] and her parents with taking [X] away. [The wife] has been to see a solicitor today to get advice about separation/divorce, custody issues and support for women living with domestic violence…. [The wife] hopeful about negotiating an amicable divorce.
The parties purchased a Motor Vehicle D for $28,000 after the birth of the child. The wife paid $20,500 using her credit card. The husband contributed about $5,000. The car was registered in the husband’s name, which was later transferred into the wife’s name and she continues to use that car. The wife had transferred a Motor Vehicle E that she had at the commencement of cohabitation into the husband’s name.
Within several months of the child being born, the wife commenced part-time work (employment omitted) and by 2010 was working part-time as a (occupation omitted).
In about 2010 the wife received settlement monies from a negligence damages claim in relation to her workplace injury, being net $457,497. At about this time the parties refinanced the Bank 2 mortgages with respect to the Property A property and the Property B property to Bank 1. Further, at about this time, the wife deposited $400,000 from her settlement monies to the joint Bank 1 mortgage account.
The parties agreed that from this time the husband would make the mortgage repayments and the wife would draw $750 per fortnight from the joint account. The wife received such fortnightly payments until September 2012.
The wife asserts that the remaining funds (the difference between $457,497 and $400,000; $57,497) were “left aside” by her for general living expenses. The Court does not accept this assertion, and refers its discussion below relating to contributions assessment.
From November 2010, the husband paid all expenses on the Property A property including mortgage repayments.
In about late 2010, the wife began looking to purchase a business in Sydney. The husband’s preference at this time was for the wife, if she wanted to work, to do so as an employed (occupation omitted) so that there was less stress in starting a new business. Despite the husband’s preferences in this context, the wife began to search for a business to purchase.
The husband accompanied the wife to see two different businesses in the Sydney (location omitted). The parties attended upon their accountant. A short time later the parties met with the selling agent of the business located on (location omitted). The husband had discussions with the wife stating that he was not keen for her to buy the (location omitted) business. The wife made an offer to purchase the business in (location omitted). The husband did not disagree with this decision. This business was a business that shared the premises with another (business omitted). During the period that the wife was organising her new business, the parties were not spending any time together and the child and the husband were left by themselves.
In about 2011 the wife established Business Pty Ltd which was used to purchase the part time business of the above shared business for $225,000. The purchase price was funded by a loan from the Bank 3.
There was a family barbecue held at the Property A property after the business was purchased with the parties being in attendance, together with the husband’s parents, his brother and others. The wife was wished good luck in her new business.
Following the purchase of the wife’s business, the wife was rarely home, and even on weekends she would disappear for hours at a time. The husband believed at this time that the parties’ relationship was effectively over.
The wife, in about the first half of 2011, borrowed a further amount of about $70,000 to renew business equipment which had failed after she started operating the business.
In about 2011 the parties came into serious conflict when the wife raised with the husband the issue of wanting to travel overseas to (country omitted) with the child and without the husband. The husband opposed this occurring, which created a very hostile environment to live in. The husband told the wife that they needed to seriously consider their relationship.
Thereafter, the wife moved into the spare bedroom at the Property A property. The husband stayed in the main bedroom. The husband considered the parties relationship to be over from this time. The parties had not been intimate since the start of 2011.
From about the time the wife moved into the spare bedroom, the parties did not: kiss, hold hands, sleep with each other, go out to dinner together, discuss each other’s day, celebrate each other’s birthdays, celebrate anniversary dates (marriage or otherwise), or celebrate Valentine’s Day. The parties engaged a woman to do the housework. The husband would go shopping for groceries and the wife would buy anything she needed separately. The parties would cook separate meals. The parties began to spend time with the child separately. The parties attended social functions with friends separately. The parties barely communicated with each other. The wife controlled her own bank accounts and finances including a business account. The husband did not know anything about the wife’s new business. The wife was often out late at night, and the parties never discussed the reasons as to why, and the husband considered that none of his business. During the weekend, the wife would disappear for hours at a time and again the husband considered that that this was not his business to ask. The husband confided in his close friends that his marriage was over. When social events were organised the wife was never invited and vice versa.
The wife went overseas to (country omitted) from 2011 to 2011. During this period the husband cared for the child in Sydney. At this time the husband felt that he could no longer trust the wife that she cared about the child and the husband.
On the wife’s return from (country omitted), the husband told the wife that they were not husband and wife anymore; the relationship was over. He reminded the wife that the parties had not been intimate with each other for a long time and that they did not do anything that a normal married couple did. The wife concurred, stating that she was working hard to try and make the business work, which she had done on her own. She told the husband that he did not like her family or friends and that her family had told her to break off the relationship with the husband. The parties agreed, for the sake of the child, to continue to live under the one roof, albeit separately and apart. The Court has not overlooked, in this context, the fact that the wife continued to draw $750 until about September 2012.
The Court finds on the balance of probabilities that the parties separated in about September 2011, after the wife returned from her overseas trip.
In late 2011 the wife decided to sell the business. The business proved difficult to sell as it was a shared business. It was later sold at a loss in the financial year 2015.
The Court accepts the wife’s evidence relating to her purchase and conduct of the business, and its early demise. The court finds that she did not act negligently, recklessly or wantonly in relation to its purchase or its operation, including its demise.
In about 2012 the wife obtained a job working as a (occupation omitted) two days a week at a (employer omitted) in Suburb R. She worked in this position for one half years while she attempted to financially support her business.
The wife made the following specific drawdowns on the mortgage for the Property A property (total $377,000):
·24 September 2012: $136,000
·11 February 2013: $25,000
·2 March 2013: $20,000
·19 March 2013: $196,000
She acknowledged that she ultimately withdrew most of the balance of her earlier $400,000 deposit to the mortgage loan.
The Property B property was sold by the husband in about May 2015 for $650,000. The husband received the net proceeds of $436,072 and placed the monies in his Bank 1 Account. He deposited $400,000 into an interest-bearing account, being a Bank 1 Account.
From the settlement proceeds of the Property B property, the husband paid:
·Motor vehicle $38,190
·Capital gains tax $73,643
·Interim property Order to wife: $106,000
·Interim property Order to husband: $106, 000.
There was $121,211 remaining from the proceeds as at 12 September 2017 (see the Court’s final balance sheet).
The Court does not accept the wife’s contentions in relation to the husband’s sale of the Property B property, including that the Court should take into account, under section 75(2)(o) of the Act, in a general sense, the parties’ lost opportunity to realise a greater profit from its sale had it been retained to trial. Inter alia, the wife made no significant contribution to the Property B property, and there was no evidence as to such alleged opportunity.
The Court accepts the husband’s evidence in relation to the sale of this property.
On balance, prior to the wife leaving the Property A property with the child in about April 2013, both parties contributed approximately equally to the care of the child, taking into account the wife’s maternity leave, then part-time work, the wife’s increase in work hours after purchase of the business, the husband’s care of the child when the mother was overseas briefly, and the care of the child by the paternal grandmother. Since the wife and child left the Property A property in April 2013, the parties’ care of the child has been about equal. The Court is not satisfied that the wife’s attendance at club venues for certain periods from about November 2010 through to February 2016 should result in any different finding in this context, accepting the wife’s evidence that her attendance at such venues did not impact upon her care of the child.
Prior to the wife leaving the Property A property with the child in about April 2013, on balance, the parties’ homemaker contributions were approximately equal.
Balance sheet
The parties contended for differing balance sheets. After the final hearing each party submitted separate balance sheets.
The Court now sets out the balance sheet incorporating the parties’ differing contentions.
| Ownership | Description | Wife / de facto partner's value | Husband / de facto partner's value | |||
| ASSETS | ||||||
| 1 | Joint | Property A NSW | $1,300,000.00 | $1,300,000 | ||
| 2 | Wife | Bank 1 Bank Account | $3657 | $3657 | ||
| 3 | Wife | Bank 1 Bank Account | $48,888 | $48,888 | ||
| 4 | Wife | Bank 1 Bank Account | $1311 | $1311 | ||
| 5 | Wife | Motor Vehicle D | E$7150 | $7150 | ||
| 6 | Wife | Interest in Company "business omitted Pty Ltd" | NIL | NIL | ||
| 7 | ||||||
| 8 | Husband | Bank 1 | $121,211 | |||
| 9 | Husband | $10,721 | $10,721 | |||
| 10 | Husband | Motor Vehicle F | 27,510 | $27,510 | ||
| 11 | Husband | Bank 1 [X] Account no. ending | $37,700 | |||
| Sub Total | $ 1,558,137 | $1,399,237 | ||||
| ADDBACKS | ||||||
| 12 | Wife | Gambling or Monies unaccounted for | $676,000 | |||
| 13 | Wife | Partial property settlement | $106,000 | |||
| 14 | Husband | Partial property settlement | $106,000 | |||
| Sub Total | $888,000 | |||||
| TOTAL | (ITEMS 1-11 PLUS ITEMS 12 TO 14) | $ 2,287,237 | ||||
| LIABILITIES | ||||||
| 15 | Joint | Bank 1 Home Loan Account no. (Mortgage over Property A) | $480,345 | $480,345 | ||
| 16 | Wife | Bank 2 Visa Account no. ending | $15,105 | Nil | ||
| 17 | Wife | Bank 2 Credit Card Account no. ending | $15,403 | Nil | ||
| 18 | Wife | Credit Card AMEX | $10,923 | Nil | ||
| 19 | Wife | ATO tax liability | E36,853 | Nil | ||
| 20 | Husband | Credit Card MasterCard | $648 | Nil | ||
| 21 | Wife | Business Loan, Overdraft and leases | E$230,919 | Nil | ||
| Total | $ (790,196) | $ (480,345) | ||||
| SUPERANNUATION | ||||||
| Member | Name of Fund | Type of Interest | Wife / de facto partner's value | Husband / de facto partner's value | ||
| 22 | Wife | Super Fund B | Accumulation Interest | $54,629 | $54,629 | |
| 23 | Husband | Super Fund A | Accumulation Interest | $190,044 | $170,455 | |
| Total | $ 244,673 | $ 225,084 | ||||
| NETT TOTAL ASSETS (excluding Superannuation) | $ 767,941 | $ 1,806,892 |
The Court will now proceed to determine the disputed items in the above balance sheet.
Item 3, wife’s Bank 1 bank account, $48,888, and item 19, wife’s ATO tax liability, estimate $36,853:
The wife contended that the $48,888 has been set aside by her to meet an estimated ATO tax liability of $36,853. It is convenient to deal with these two items together.
As to item 3, at paragraphs 78 and 79 of the wife’s Affidavit filed 5 October 2017 (referring to Annexure F, being screenshots of her Bank 1 Bank Account), she asserts that the funds of $48,888 in her Bank 1 Bank Account are comprised of transfers of funds from her company’s Bank 1 Bank Account and are for the purpose of tax payable to the Australian Taxation Office, “and for any further tax liability incurred once my final individual tax return for 2017 is completed and lodged.”
The bank statements for the company’s Bank 1 Bank Account indicate post-separation transfers, in 2017, from monies in that account, to the wife’s Bank 1 Bank Account, and which transfers occur immediately following credits to the account and which appear to relate to the wife’s employment income.
The husband cannot be said to have made a contribution to the above credits to the account, which would appear to be the wife’s employment income received in 2017, and accordingly, the item 3 Bank 1 bank account should be taken out of the balance sheet.
The husband contends, inter alia, that the wife’s estimated ATO tax liability, $36,853 (item 19). cannot be considered a joint liability, as it is clearly a post-separation liability. The Court agrees with this contention and item 19, being the alleged ATO tax liability, shall be removed from the balance sheet.
Item 8: husband’s Bank 1 bank accounts, $121, 211; and items 13 and 14: husband-and-wife partial property settlement, each receiving $106,000.
It is convenient to deal with these items together.
As to items 13 and 14, the Order of the Court of 21 April 2016 provided, inter alia, that each party should receive by way of interim property settlement pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”), the sum of $106,000. These interim property sums related to the sale of the Property B property.
The husband spent his interim property settlement on legal fees.
The wife, in the Court’s above Orders, was required to pay the sum of about $63,575 against three separate credit card liabilities, with the balance of about $42,425 to be paid for legal fees. There is no persuasive evidence before the Court that these credit card liabilities were attributable to the parties’ relationship and were not incurred post separation.
The husband contends that he alone made contributions to the Property B property. These contentions can be considered at the Contributions assessment stage, discussed later.
In the above circumstances, each party’s interim property settlement should be added back to the asset pool and remain in the balance sheet.
As to item 8, the husband contended that these funds should not form part of the asset pool as they are the proceeds of the Property B property (the balance thereof) of which the wife did not contribute. Again, as with items 13 and 14, these contentions can be considered at the Contributions assessment stage, discussed later.
Items 8, 13 and 14 shall remain in the balance sheet.
Item 11: husband’s Bank 1 bank account for the child, account number: $37,700
Following the child’s birth, the parties agreed to set up this bank account (initially the bank account was in both parties’ names) to put money away for the child’s future. Every month the husband deposited about $200 into this account. Also placed into this account was gifts of money for the child from his family. In September 2015 the husband closed the account and established the account in the present name, the account being styled “Mr Vassa in trust for [X]”. He could make withdrawals from the account if he wished. This bank account should remain in the balance sheet. The Court will later consider relevant contributions to this bank account in its contributions assessment.
Item 12: wife’s gambling or monies unaccounted for; $676,000
The Court refers to its discussion, below, under section 75(2)(o), in relation to this issue. This amount shall not be added back to the balance sheet.
Items 16, 17 and 18; wife’s three credit card liabilities:
The wife concedes that these credit card debts arose post-separation. She is content for these not be included in the balance sheet. They shall be removed from the balance sheet.
Item 20: husband’s Bank 1 MasterCard account in the sum of $648.
Neither party contends that this debt should remain in the balance sheet and it will be removed.
Item 21: wife’s business loan, overdraft and leases, $230,919
The husband seeks to have this item removed from the balance sheet. He asserts, inter alia, that the purchase of the business by the wife represented relevant waste, pursuant to the principles in Kowaliw & Kowaliw (1981) FLC 91-092 (see the reference to relevant legal principles from this case below under section 75(2)).
The Court refers to its previous recitation of the evidence in relation to the purchase of the business by the wife and the husband’s involvement.
The Court also accepts the wife’s oral evidence relating to her purchase of the business, including her enquiries in relation to the business prior to its purchase, and her evidence relating to the further borrowings made by her to renew business equipment for the business in the sum of $70,000.
The husband has not established, inter alia, that the wife’s purchase of the business represented reckless, negligent or wanton behaviour.
The wife’s debt of $230,919 shall remain in the balance sheet.
Item 23: husband’s superannuation interest with Super Fund A
The wife asserts that the husband’s relevant superannuation entitlement is $190,044. This assertion is supported by Exhibit L, being the letter from Super Fund A stating the value of the husband’s interest in the fund as being $190,044 as at 27 September 2017.
The husband asserts that his interest is $170,455.
The sum of $190,044 shall go into the balance sheet.
Accordingly, the final balance sheet, taking into account the above determinations, is as follows:
| Ownership | Description | Value | |||||
| ASSETS | |||||||
| 1 | Joint | Property A NSW | $ 1,300,000.00 | ||||
| 2 | Wife | Bank 1 Bank Account | $ 3,657 | ||||
| 3 | Wife | Bank 1 Bank Account | $ 1,311 | ||||
| 4 | Wife | Motor Vehicle D | E$ 7,150 | ||||
| 5 | Wife | Interest in Company "(business omitted) Pty Ltd" | NIL | ||||
| 6 | Husband | Bank 1 Account | $ 121,211 | ||||
| 7 | Husband | $ 10,721 | |||||
| 8 9 | Husband Husband | Motor Vehicle F Bank 1 account [X] Account no. ending | $ 27,510 $37,700 | ||||
| Sub Total | $ 1,509,260 | ||||||
| ADDBACKS | |||||||
| 10 | Wife | Partial property settlement | $ 106,000 | ||||
| 11 | Husband | Partial property settlement | $ 106,000 | ||||
| Sub Total | $ 212,000 | ||||||
| TOTAL | (ITEMS 1-9 PLUS ITEMS 10 TO 11) | $1,721,260 | |||||
| LIABILITIES | |||||||
| 11 | Joint | Bank 1 Home Loan Account no. (Mortgage over Property A) | $ 480,345 | ||||
| 12 | Wife | Business Loan, Overdraft and leases | E$ 230,919 | ||||
| Total | $ 711,264 | ||||||
| NET TOTAL $1,009,996 | |||||||
| SUPERANNUATION | |||||||
| Member | Name of Fund | Type of Interest | Wife / de facto partner's value | Husband / de facto partner's value | |||
| 14 | Wife | Super Fund B | Accumulation Interest | $ 54,629 | $ 54,629 | ||
| 15 | Husband | Super Fund A | Accumulation Interest | $ 190,044 | $ 190,044 | ||
| Total | $ 244,673 | $ 244,673 | |||||
| NETT TOTAL ASSETS (including Superannuation) | $1,254,669 |
Section 79(2) of the Act
The Court is satisfied that it is just and equitable in this case to alter the Property A property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of the Property A property, and the fact that the continuance of the current legal ownership of the Property A property would not afford them justice and equity. The parties join in seeking Orders for property adjustment.
Contributions
The Court refers to the case law dicta below, relating to section 79 property proceedings.
In the Marriage of Harris (1991) 104 FLR 458 the Full Court of the Family Court of Australia said in assessing contributions:
“The task of the court in proceedings under section 79 is not akin to an accounting exercise. To borrow a phrase used by McClelland J in Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688 at 689 in relation to section 20 of the De Facto Relationships Act 1984 (NSW):
...the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.”
In Pierce & Pierce [1998] FamCA 74 the Full Court at [28]:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.
More recently in Dickons & Dickons [2012] FamCAFC 154, the Full Court said:
23. We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
24. There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25. Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “...giving over-zealous attention to the ascertainment of the parties’ contributions...” (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26. The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
The Court adopts a two pool approach in respect to non-superannuation assets and superannuation assets in circumstances where there are significant contribution disparities as to each pool.
Contributions: Pool A non-superannuation assets
The Court takes into account the following contributions of the parties relating to this relatively short relationship:
a)The husband brought into the relationship his equity in the Property B property, being a sum of about $190,000. This was a contribution of substance.
It is relevant to take into account that the Property B property was sold in about May 2015 for $650,000; from the net proceeds the husband purchased a car for about $38,190 (see item 8 in the balance sheet; this car is now valued at $27,510) and paid capital gains tax of $73,643; pursuant to the court’s interim orders of April 2016 each party received an interim property settlement of $106,000, and there is $121,211 remaining in the husband’s bank account. The wife should not be treated as having made any relevant contribution to the maintenance of the Property B property during the relationship, noting her lack of involvement with this property, and that it was rented out during the relationship requiring no top-up to meet its mortgage loan.
b)In mid-2005 the parties purchased the Property A property. The husband used the Property B property as security to assist in obtaining finance. The purchase price was fully funded by way of mortgage from Bank 2.The parties shared the expenses of the legal fees and stamp duty.
c)At cohabitation, the wife had a Motor Vehicle E (purchased in about 2004 for $17,000; there was no evidence of its value at cohabitation). The husband had a car, its then value unknown.
d)From the date of purchase of the Property A property, up to about November 2010, the parties jointly and approximately equally paid the mortgage loan. They each deposited savings and pending home loan repayments into their joint off set account to pay the home loan and create savings.
e)Since November 2010 the husband has been solely responsible for all home loan repayments, rates, insurance and general maintenance, whilst the court takes into account, in this context, that the husband has remained in occupation of the Property A property and the wife, since April 2013, has had to pay rent elsewhere.
f)The parties caused the Property A property to be renovated. They took out a joint loan for $25,000 which was added to the home loan.
g)The paternal grandfather and paternal great grandfather provided $85,000 to the husband to assist with the renovation costs, however there is no expert or other discrete evidence as to the extent to which such monies contributed to an increase in value of the Property A property. Nevertheless this was an indirect contribution by the husband.
h)The paternal grandparents provided $25,000 to the husband in about 2010 to assist with refinancing of the parties’ home loan. This was an indirect contribution by the husband.
i)The parties purchased a Motor Vehicle D for the wife’s use in 2009; the wife contributed the majority of monies for its purchase.
j)The wife’s receipt from (employer omitted) of $38,975 on 2009. The wife’s employment with (employer omitted) had commenced in 2004. Inter alia, the Court refers to the parties’ work history during the relationship, the parties’ (on balance) equal care of the child during the relationship, and the wife’s receipt of workers compensation and personal injury lump sum receipts; it cannot be contended that the husband made any significant indirect contribution towards this termination payment. This (employer omitted) receipt in 2009 should be regarded as an indirect contribution by the wife.
k)On balance, the parties’ home maker and parent contributions during the relationship were approximately equal. Since 2013 the parties have cared for the child in an equal shared care arrangement.
l)The wife contended that she made relevant contributions through her lump sum personal injury receipts relating to her work injury in 2005; $457,497 from her negligence damages claim (received by her in about 2010) and $36,000 received in about 2009 for workers compensation pain and suffering and whole person impairment.
The Court now proceeds to deal with this contention:
i)In Aleksovski v Aleksovski (1996) FLC 92-705, a majority of the Full Court of the Family Court of Australia, stated, inter alia:
In our opinion, in most cases, a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury. It should not be considered in isolation, for the reason that each and every contribution, which each of the parties makes to the relationship, must be weighed and considered at the same time.
ii)In this relatively short relationship (from cohabitation in 2006 to separation in about September 2011) the wife received these lump sums towards the end of the relationship. Her work injury had occurred in 2005. She was off work for about four weeks but returned to work in an (occupation omitted) capacity. She had received weekly workers compensation statutory salary payments for a significant period. There was no evidence before the Court as to the component parts of the damages lump sum of net $457,497, the damages claim of the wife having been resolved through an out of court settlement. The Court cannot discern any persuasive reason to treat the husband as having made any relevant contribution to these lump sum receipts of the wife.
iii)The wife’s receipt of $36,000 representing whole person impairment and pain and suffering under workers compensation laws was banked by her in 2009 into the parties’ joint Bank 2 offset account. On the balance of probabilities, this was a relevant contribution by her, noting the husband’s focus on the wife’s asserted gambling from about 2010 by reference to relevant bank statements showing ATM cash withdrawals.
iv)The wife asserted that funds representing the difference between her personal injury lump sum receipt of $457,497 (received in 2010) and the associated $400,000 deposited to the home loan account, $57,497, were “left aside” by her for general living expenses.
No particularity is given by the wife for such suggested expenditure, and noting that in any event, a short time later, in September 2011, the parties separated. In the absence of objective documentation persuasively demonstrating how this $57,497 was spent, noting in particular the wife’s concession that she gambled to some extent (see her Written Submissions), the Court is not prepared to accept this assertion of the wife; the wife has not satisfactorily established how she spent this sum of $57,497.
v)The wife deposited $400,000 onto the parties’ home loan (account), from her personal injury negligence settlement in 2010. However in return, pursuant to the parties’ agreement in about 2010, the wife received $750 per fortnight until about 2012, debited against the parties’ Bank 1 joint account, and the wife has not satisfactorily explained the manner in which she spent such fortnightly payments (whether on living or business expenses referable to the parties’ relationship, on gambling, or otherwise; see the Court’s discussion below in this context). Between September 2012 and March 2013, the wife withdrew sums totalling $377,000 from the home loan, and she at some later time withdrew the balance of such earlier deposit of $400,000. Accordingly, there was, for a limited period, some saving by the parties on home loan interest, whilst taking into account the fortnightly payments received by the wife.
vi)The wife conceded that she had not fully satisfactorily explained the manner of her spending the $400,000, including by reference to her gambling activities. Inter alia, in her written submissions, she submitted,
That somewhere around one-quarter and one-half has not been satisfactorily explained by the wife and that this should result in a reduction of the benefit the wife receives for that contribution.
She submitted that she had otherwise satisfactorily explained the spending of such monies for the benefit of the family, including for living and business expenses both referable to the parties’ relationship as well as for her re-establishment expenses; the Court refers to her written submissions in this context.
vii)The wife submitted that she had not spent anywhere near some $676,000 on gambling, as contended by the husband, by reference to relevant ATM cash withdrawals made by the wife between about November 2010 and February 2016.
viii)At the outset, the Court should state that it found the wife’s evidence relating to her gambling activities, and her evidence relating to the manner in which she applied her personal injury lump sum settlement funds and extensive cash ATM withdrawals from November 2010 to February 2016, including her alleged redepositing or recycling of significant cash monies withdrawn, to be both implausible and unreliable (as to the wife’s affidavit evidence in this regard, see paragraphs 85-98 of her Affidavit filed 20 July 2017).
ix)In her Affidavit filed 20 February 2017, the wife asserted that she did not spend significant funds gambling during the relationship; that after separation she had engaged in some limited gambling, but between 2012 and 2015 she did not recall that her gambling was significant or an issue; and that she did not have the financial resources to fund any significant gambling.
x)However, the Court observes, from Exhibit D, being the subpoenaed records of the wife’s gaming activities at Suburb S Club, for the period from 2 October 2015 to 27 February 2016, a period of about five months, the wife suffered a gambling loss in the sum of about $102,000. There were no gambling records in evidence from other licensed venues to further consider this issue.
xi)Further, the Court observes the suggestion of a correlation between the wife’s total ATM cash withdrawals during this five month period and the wife’s gambling losses at that same venue, which the wife did not persuasively address in her evidence.
xii)Further, the Court observes the suggestion, by reference to the wife’s Bank 1 Account bank statements in evidence, that when the wife was not attending the licensed club venues, she was not withdrawing significant sums of money for living expenses, again which the wife did not persuasively address in her evidence.
xiii)Her statements to Dr K, psychologist, and to Dr R, psychologist, as to the extent to which she spent money on gambling, were inconsistent. The wife had told Dr R that she had visited clubs such as Suburb S Club and RSL Clubs, both pre and post separation, for the purpose of gambling. She stated that she typically played poker machines and acknowledged that she had spent large amounts of money and time at these clubs. Yet the wife had stated to Dr K, inter alia, that at most she might spend $400 in a week on gambling.
xiv)The wife asserted (inter alia, again see paragraphs 85-98 of her Affidavit filed 20 July 2017) that she spent significant monies from her personal injury lump sum receipts on various living and business expenses. She sought to rely, inter alia, on certain bank and credit card statements, having made numerous assertions as to the manner and extent of her expenditure.
It was not possible for the Court to ascertain from the voluminous bank statement material in evidence (which the wife had only drawn limited specific attention to in her above Affidavit), relating to both the wife and her company, the manner in which, and the extent to which, she had spent the personal injury lump sum receipts on living and business expenses, as opposed to gambling activities, noting that she was also receiving (and spending) income from her work as a (occupation omitted). No persuasive expert evidence was adduced by the wife demonstrating her contentions in this context.
xv)The evidence of Mr N, accountant, was inconclusive in this context. He referred, inter alia, to the wife’s access to after tax wages from her work as a (occupation omitted) to pay her living expenses, and stated, under Conclusions:
To the extent that the living expenses of the wife were greater than these amounts (a reference to the wife’s earnings from 2012 to 2016), then she would have needed access to additional funds in order to support her living expenses. I understand that the wife had access to additional funds from increased personal borrowings and a partial property settlement during this period. Due to the number of bank accounts, the volume of transactions and transfers between bank accounts, it will be difficult and time-consuming and therefore costly to accurately quantify the wife’s living expenses and how these living expenses were funded over this period. (Court’s italics)
(The Court should state that it had allowed Mr N’s Affidavit into evidence, over objection by the husband, and the Court refers to the oral exchanges between the Court and the husband’s side in this context. Inter alia, at the time of its admission into evidence, it was potentially relevant, and the Court was satisfied that the deponent understood his duty to the Court as an expert (see, paragraphs 5-8 of his Affidavit, and paragraphs 5.9-5.16 of his report).
xvi)The wife had submitted that it was necessary for her to expend moneys on re-establishment costs for herself and the child post separation, and that such expenditure was referable to the relationship. However, the Court notes that the wife’s contended date of separation was April 2013, the Court having found that the parties separated under the one roof in September 2011. Further, and in any event, she did not persuasively establish the source of funds for such expenditure, whether from personal injury lump sum receipts, income, or otherwise.
xvii)The court does not accept that the wife has persuasively established that in 2010 she deposited $30,000 (from the $36,000 that she received for her workers compensation lump sum settlement) into a term deposit styled in the parties’ joint names as security for husband’s mortgage loan on the Property B property; inter alia, the bank records in evidence did not persuasively establish this assertion and the wife’s oral evidence in this context (not reflected in her affidavit evidence) was not supported by such bank records.
xviii)In summary, the Court finds that the only relevant contributions made by the wife from her lump sum personal injury receipts (totalling some $493,497; $457,497 from the work injury damages settlement and $36,000 from the workers compensation lump sum settlement) were the $36,000 workers compensation lump sum settlement, and the saving by the parties on home loan interest, for a limited period, after the wife deposited $400,000 from her lump sum personal injury receipts against the mortgage loan, whilst taking into account the fortnightly payments received by the wife. However, as discussed above, the wife has failed to satisfactorily explain the manner in which she ultimately spent the work injury damages settlement of $457,497.
m)The husband made all direct contributions to the bank account balance held by the husband “in trust for” the child, $37,700, apart from deposits from his extended family. In April 2013, when the wife and child vacated the former matrimonial home, the account balance was between $15,000 and $20,000. As at September 2011, the date of separation under the one roof, the husband would have only contributed about eighteen payments of $200; the balance in the account at that time would only have been about $3,600 (subject to additional funds in the account through gifts from the husband’s family contributed by them between the child’s birth and separation). Accordingly, any indirect contribution by the wife to the bank account by the separation date would likely have been minimal. Taking further into account the husband’s contributions to this bank account post separation, it can be seen that he has made the vast majority of relevant contributions overall to this bank account.
Overall, assessing the parties’ respective contributions holistically, in relation to the non-superannuation assets, the Court assesses contributions to the non-superannuation assets, as at the date of final hearing, in favour of the husband at 70% to the wife’s 30%. This creates a disparity of $403,998.
Pool A: Section 75(2)
General considerations, section 75(2)
The husband is aged 46 years, and the wife 47 years.
The husband is in good health. He is employed with the (employer omitted).
The wife asserts that as a result of her work injury in 2005, she continues to feel pain and spasms, and she needs to take painkillers. She also asserts that she has been diagnosed with a partial tear of a left shoulder tendon and may require surgery. She asserts that, accordingly, she is slower at her work. The medical report of Dr F, neurological surgeon, is dated 16 March 2009, over nine years ago. There is no current medical evidence relating to the wife’s asserted conditions, including in relation to her asserted reduced work capacity, noting that she is presently employed as a contractor (occupation omitted). There is no medical evidence indicating that the wife will be unable to work as a (occupation omitted) to age 65 years. No adjustment is made in this context in favour of the wife.
The husband earns a gross salary of about $124,644 per annum (Financial Statement filed 5 October 2017).
The wife asserts in her Updated Financial Statement filed 12 October 2017 that her average weekly income, from all sources, apart from childcare rebate, is about $2,722, or $141,544 per annum, before tax.
The wife’s draft income taxation return, for the year ended 30 June 2017, suggests a taxable income of about $140,413 (which reflects the director’s fees and salaries of some $140,000 specified in the wife’s company’s draft comparative trial balance as at 30 June 2017). The gross receipts stated in the wife’s company’s draft comparative trial balance for the year ended 30 June 2017, in the sum of $245,860, approximately reflect the wife’s gross receipts referred to in her company’s bank statements for that financial year.
The wife’s company’s draft comparative trial balance for the year ended 30 June 2017, indicates that the wife claims, as expenses of her business, inter alia, certain expenses for a motor vehicle, and a telephone.
The wife asserts that she actively continues to further her career as a (occupation omitted). It is observed that she completed a (omitted) course in (country omitted) in 2013.
The wife’s income earning capacity as a (occupation omitted) is probably superior to that of the husband’s earning capacity, as discussed above.
Pursuant to the Court’s proposed parenting Orders, the child will be subject to an equal shared care parenting regime. There is presently no child support payable or claimed by either party.
The wife has access to cash funds of some $48,888, albeit she contends that it will be significantly utilised to pay an anticipated tax liability.
The wife asserts credit card debts in her Updated Financial Statement filed 12 October 2017, noting that these debts did not enter the balance sheet. The wife has outstanding legal fees.
There is a bank account in the husband’s name, on trust for the child, for some $37,700, whilst noting that this account has been maintained since the child’s birth, and sustained largely by the husband’s regular modest contributions predominantly post separation.
Child support has not been paid, nor is it being sought.
The wife contends that the husband acted unilaterally in relation to the sale of the Property B property which has impacted on funds available for distribution as between the parties, whilst conceding that no expert evidence was adduced as to the current value that could have been obtained had this property been retained to trial. The Court rejects this submission of the wife.
Pursuant to the Court’s contributions assessment, relating to the non-superannuation assets, the wife will receive $302,999 of the non-superannuation assets, less the $106,000 interim property receipt received by her, making net $196,999. The husband will receive $706,997 less the $106,000 interim property receipt received by him, making net $600,997.
The wife currently rents premises at Suburb S for $650 per week.
Taking the above matters into account, including the wife’s age at 47 years and her income earning capacity as a (occupation omitted), it is not appropriate that there be any adjustment under section 75(2) in relation to the non-superannuation assets.
The Court should now deal with the husband’s wastage contentions, which the Court does not accept.
Alleged gambling waste by wife: section 75(2)(o)
The husband contends there has been wastage of matrimonial assets by the wife by reason of her alleged gambling expenditure (see the husband’s written submissions).
The case which has come to define the scope of “waste” in the family law context and which is viewed as establishing legal “guidelines” for this Court is the frequently cited case of Kowaliw & Kowaliw (1981) FLC 91-092 (“Kowaliw”).
In Kowaliw, Baker J made the following comments on the topic of “waste” at [10]:
[10] As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
[11] Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provisions of sec. 79.
At [18] of Kowaliw Baker J reiterated his earlier comments by stating:
If a party has acted in a manner to which I have referred earlier … then such conduct in my view and the economic consequences that flow therefrom are clearly matters to which the Court may have regard pursuant to the provisions of sec. 75(2)(o).
The wife’s receipts through her personal injury lump sums and (employer omitted) termination payment total some $532,472 ($457,497 work injury damages settlement, $36,000 workers compensation lump sum, and $38,975 (employer omitted) termination payment). The Court refers to its contributions assessment findings above.
The husband contends that the wife should be found to have wasted “matrimonial assets” in the sum of about $676,000 through gambling, being the total of her cash ATM withdrawals for the period from November 2010 to February 2016, being withdrawals from venues which facilitated gambling.
Yet the Court has found, in the context of its contribution assessment analysis, that the wife has failed to adequately explain how she ultimately spent some $457,497, representing her work injury damages settlement lump sum, received by her in November 2010, noting the evidence before the court relating to the wife’s gambling activities. And importantly, the court has concluded that the wife should not be found to have made any relevant s79 contribution in respect to this sum of $457,497 (at least after she withdrew $400,000 relating to this sum from the parties’ mortgage loan). Again, the Court refers to its previous discussion as to the appropriate characterisation of these monies, including the absence of any relevant contribution by the husband in relation to these monies.
The Court further observes in this context that the alleged gambling activities of the wife occurred largely post-separation, separation having been in September 2011, and the husband has not persuasively established that any surplus income earnt post-separation by the wife, as a (occupation omitted), was not utilised by her for gambling.
The husband’s wastage contention, in the above circumstances, is not made out.
Alleged wastage of wife regarding her business: section 75(2)(o)
As discussed previously in these reasons, the Court is not satisfied that there was any such alleged wastage by the wife in relation to the purchase, conduct or sale of her business.
Contributions: Pool B superannuation assets
There is a paucity of evidence relating to the history of the parties’ respective superannuation entitlements.
The husband superannuation entitlement is $190,044. The wife’s superannuation entitlement is $54,629.
The husband would appear to receive superannuation contributions through his employment. The wife refers to the husband working as a (occupation omitted) from at least as early as 2001. Exhibit L, a letter from the Super Fund A, states that the husband’s Eligible Service Period commencement date was 30 July 1995, and his date of joining the Fund was 1998.
The wife obtained her first full-time employment as a (occupation omitted) from 2004 with (employer omitted) which concluded in about 2009; a period of about five and a half years during which she was paid superannuation. On commencement of that employment she was paid some $6,277 per annum in superannuation; at cohabitation, dated 2006, the wife’s superannuation entitlement through (employer omitted) was probably at least about $12,500, and at least some $34,524 of superannuation contributions would have accumulated by September 2009.
There is no evidence relating to the value of the husband’s superannuation entitlements as at commencement of cohabitation or separation in September 2011. The Court infers that the husband’s superannuation entitlement had some value as at cohabitation date and separation date but again the Court simply does not know what that value would have been at these times.
The wife works as a contractor (occupation omitted) with (employer omitted) but receives no superannuation contributions through that engagement.
There is no evidence of direct financial contributions made by one party to the other’s superannuation entitlement either during the relationship or post separation to date. Neither party made any submission to the contrary.
There is no persuasive evidence of any significant indirect contribution made by either party to the other’s superannuation entitlement either during the relationship or post separation to date. Neither party made any submission to the contrary. In any event, even if there could be found to exist some indirect contribution by either party, in particular during the course of their relatively short relationship, it is unquantifiable by reason of the paucity of evidence before the court.
The Court finds that the parties made no relevant contributions to the other’s superannuation entitlement.
Pool B: section 75(2) superannuation assets
The wife contends for a significant adjustment by reason of the parties’ disparate superannuation assets, albeit her approach is that each party retain their respective superannuation entitlements.
The husband contends that there should be no relevant section 75(2) adjustment by reason of the parties’ disparate superannuation entitlements.
There is a disparity in the parties’ respective superannuation assets.
The Court refers to its discussion above, relating to section 75(2) under Pool A.
Both parties are in their mid 40s with many years ahead of income earning potential before retirement. The wife’s income earning capacity is superior to the husband’s, as discussed previously. The court refers to the parties’ present respective incomes. There is no call for an adjustment under section 75(2) by reason of the parties’ disparate superannuation entitlements.
Justice and equity
The parties shall retain their respective superannuation assets.
There shall be, in favour of the husband, a 70/30% division of the net non-superannuation assets, whilst taking into account the fact that each party has already received $106,000 by way of partial property settlement.
The husband’s 70% of the net non superannuation assets ($1,009,996) is $706,997 less $106,000 is $600,997. The wife’s 30% of $1,009,996 is $302,999 less $106,000 is $196,999.
In relation to the non-superannuation assets, should the husband retain:
·The Property A property, together with its mortgage debt, net $819,655,
·Bank account, $121,211,
·Bank account, $10,721,
·Car $27,510,
·Bank 1 account for child $37,700
and cause to be repaid the debt of $230,919 (business loan, overdraft and leases debt),
leaving net $785,878, with the wife retaining:
·Bank account, $3,657
·Bank account, $1,311
·Car, $7,150,
then the husband will be required to make a cash payment to the wife of $184,881. He should have three months to make this payment, otherwise the Property A property should be sold.
In the event that the property is sold, then the net proceeds of sale of the property, after payment of the mortgage debt and Business loan, overdraft and leases debt, shall be divided between the parties as to 30% to the wife, together with a cash payment of $8,260 (see the paragraph immediately below), with the balance remaining to the husband.
The Court now summarises its calculations relating to the above sum of $8,260. Assuming that the parties shall each retain the assets presently in their respective names (see items 2 to 9 in the balance sheet), then the husband should pay the wife additionally a cash sum of $8,260. (In relation to items 2 to 11 in the balance sheet (assets totalling $421,260) the husband should at the outset receive 70% of $421,260, $294,882, less $106,000 already received by way of partial property settlement, leaving $188,882. Because he already holds $197,142, he should pay the wife $8,260.Such latter payment to the wife would result in her holding $20,378 ($12,118 in assets already held, plus the $8,260, representing 30% of $421,260 ($126,378) less $106,000 already received by way of partial property settlement).
The wife can utilise the sums she receives pursuant to the Court’s orders, at least in part, to pay off debt. Subject to her preferences in accommodation, she has the ability to save further monies (noting she has already put aside certain cash monies to pay a taxation liability) if she wishes to purchase real estate. She remains living in rental accommodation without difficulty. The parties will have the equal care of the child. The Court again refers to her earning capacity as a (occupation omitted) and her age, being in her mid 40s.
The Court is of the view that its proposed property adjustment Orders will represent a just and equitable property settlement between the parties.
Parenting
Evidence
The child was born on 2010.
The Court refers to its earlier introduction and discussion of the evidence relating to the Property A property proceedings, in so far as that discussion referred to the parties’ care of the child during and after the relationship.
The Court refers to the Family Report and accepts the evidence and recommendations of the Family Report writer.
Legal principles
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC Considerations
Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child has a meaningful relationship with each parent and would benefit from a continuance of those relationships.
Should the child be subject to an equal time arrangement, noting that the parenting arrangement post separation has been fairly close to an equal time arrangement, the child’s meaningful relationship with the mother should not be detrimentally affected. Further, such relationship should not be detrimentally affected if parenting Orders are made such that each parent is able to spend a full weekend with the child once per school term.
Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the view of the Court, there is no relevant need to protect issue in these parenting proceedings. In this context, the Court notes the parties’ respective parenting proposals. This view is consistent with the evidence of the Family Report writer.
There is no evidence that the wife has been involved in significant gambling activities since about early 2016. The Family Report writer stated that there are no reports of the mother leaving the child at home unattended or inappropriately supervised or her having physically harmed the child. She stated that the husband does not assert any differently. The Family Report writer stated that overall, it was her assessment that the degree to which the wife’s gambling behaviour compromises her parenting would, at this point in time, seem to be negligible.
The Family Report writer noted that by all accounts the child is settled into school routines and is making pleasing progress across all key learning areas.
The Family Report writer stated that post-separation at least, both parents, to their credit, appear to have attempted to insulate the child from their personal problems with one another arising from their marriage and separation and their feelings and opinions about one another. They have also ensured that the child is not aware of litigation surrounding future parenting arrangements. She stated that there was nothing to suggest that they do not intend to continue to do so.
The Family Report writer stated that the parties should remain mindful that exposure to parental conflict and/or any negative feelings they may have about one another, could result in the child struggling with a constellation of difficulties which could, potentially, overwhelm her and negatively impact on her psychological well-being. It also has the potential to undermine the positive relationships the child experiences with not only each of her parents, also with other persons in her family to whom she is reportedly close. A positive parental alliance will inevitably give the child the best possible opportunity to achieve all her hopes and dreams, according to the Family Report writer.
Section 60CC(3) - additional considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The Family Report writer noted that the child spoke to her of her desire for there to be no significant changes to how she currently spends time with each of her parents.
Whilst noting the tender age of this child, the Court takes into account her views.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parents appear to have taken such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parties have fulfilled such obligations.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The child has been subject to a substantially shared care arrangement since about April 2013.
The Court refers to its discussion above under the meaningful relationship primary consideration.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable
(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The Family Report writer stated that both parents clearly love the child and each is cared well, and provided, for her in many ways essential to her upbringing generally.
The Family Report writer stated that were the child to be exposed to the father’s negative opinions about the wife and the wife’s care of the child, it would not only place immense emotional stress on the child but even perpetuate in the child a sense of insecurity and/or fear of the wife. In the view of the Court, this issue can be addressed and minimised by acceding to both parties’ proposed non-denigration parenting Order.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is eight years of age. She is meeting her developmental milestones.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Family Report writer stated that the parties both appear to have a strong sense of responsibility for the child and appeared motivated to provide her with optimal (if contrasting) life experiences. She referred to potential poor outcomes for the child if the parents fail to reach a rapprochement and come to terms with the need for a consistently cooperative approach to the joint parenting of the child.
(j) Any family violence involving the child or a member of the child's family
Not applicable.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter
Not applicable.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Not applicable.
(m) Any other fact or circumstance that the Court thinks is relevant
It is appropriate to deal here with the competing overseas travel proposals in relation to the child.
The wife was born in (country omitted) and her extended family all live overseas. The wife asserts the child has expressed wishes to be able to travel to see family.
The wife travelled alone to (country omitted) in 2014 for about four weeks.
The parties travelled to (country omitted) together on two separate occasions in 2005 and 2006. The husband met the wife’s family.
The wife asserts that her parents are getting old and it is harder for them to travel to Australia. The maternal great grandmother is 94 years old. The maternal grandmother has medical problems.
The child has previously travelled to (country omitted) when she was younger with the husband’s consent. The child travelled with the wife to (country omitted) for six weeks, leaving in 2013 and returning in 2013.
The wife is an Australian citizen, and retains (country omitted) citizenship. She is in employment as a (occupation omitted) in Sydney. The child has grown up in Australia. The wife has been in a relationship with Mr G for about four years; he is an Australian citizen, and he has a child who lives in Australia who he spends regular time with. The wife has travelled to (country omitted) for two weeks in 2017 with Mr G.
The wife has no immediate family in Australia.
The child told the Family Report writer that she would very much like to be able to holiday with her mother in (country omitted), or elsewhere, in order to spend time with her extended maternal family.
The Family Report writer stated that having the opportunity to spend time with the maternal family in the mother’s native country will give the child the benefit of spending quality time with the wife and maternal family and to enjoy her culture with other persons she shares that culture. Sharing meaningful relationships with her extended maternal family as she does with her paternal family and experiencing the diversity of each of her parents’ countries of origin would make a positive contribution to the child’s emotional development and her sense of self.
The Family Report writer recommended that the child be permitted to temporarily travel overseas with either parent to countries that are signatories to The Hague Convention, during periods of time that the child is scheduled to spend time with them.
The father’s proposal for international travel is that each parent is permitted to travel with the child once every two years for a period of no more than four weeks, unless there has been written agreement between the parties.
The wife’s proposal for international travel is, inter alia that both parties be entitled to take the child outside of Australia on the basis that certain provisions have been satisfied, including,
(n) That the mother be entitled to travel overseas during the Christmas holidays with (the child) once every three years and spend a period of up to 5 weeks during the Christmas school holidays overseas with (the child) and in those circumstances the mother is to then give make up time by way of the whole of the next short school holiday period.
In the view of the Court, the wife’s proposals for international travel, at least in relation to Christmas holidays, providing for a potential period of up to five weeks that the child would not spend with the husband during that holiday period, albeit once every three years, would carry the real risk that the child’s meaningful relationship with the husband could be detrimentally affected.
The husband’s proposal for an extended holiday of four weeks every two years would reduce this risk, including reducing the risk that the child’s meaningful relationship with the mother might be detrimentally affected. Further, the husband’s proposal, in particular during the longer Christmas school holidays, would ensure that the non-travelling parent would be able to spend about a fortnight with the child during such holiday period.
The evidence of the Family Report writer is consistent with this above view.
As to school holiday time, the Court views the husband’s proposals as too restrictive, by not permitting (apart from his proposal for international travel each two years) each parent to spend greater block time with the child during school holidays. It will be in the child’s best interests to make the wife’s proposed Orders for holiday time.
As to the wife’s proposed restraining Order that the husband be restrained from allowing the child, presently aged eight years, to sleep in his bed with him, the Court refers to the wife’s evidence that the child had told her that she wanted to sleep in her bed, having stated that at the husband’s house she sleeps in his bed every day. The wife had stated to the Family Report writer that the child sleeping in the same bed as the husband does not support the child to become independent or learn to tolerate sleeping by herself. In the view of the Court there is some force to this concern of the wife, again noting the age of the child. It is not without relevance in this context that the husband conceded to the Family Report writer that he was very protective, if not overprotective, of the child. It will be in the best interests of the child to make the proposed restraining Order.
As to the wife’s proposed Orders relating to obtaining a paediatric assessment for the child, the Court refers to the wife’s affidavit evidence in this context. Inter alia, the wife expresses her concern as to whether the child might have an attention deficit issue in the context of her learning activities. The husband indicated he would not agree to the wife’s proposal to obtain such medical opinion. It will be in the best interests of the child that such order be made enabling this important issue to be resolved in a timely fashion.
Parental responsibility: sections 61DA(1) and (2)
Each party seeks an Order for equal shared parental responsibility.
The child spoke very positively to the Family Report writer of the current parenting arrangement, her experience of which is that she gets to see, and spend time with, each parent each week.
The Family Report writer stated that the child presently appears to be comparatively well settled in the current parenting arrangement.
The Family Report writer stated that despite the parties’ differences and concerns about one another, they have, to a large extent, demonstrated the capacity to make a substantially shared care arrangement work and this could predict, to some extent their capacity to continue to do so in the future. (And the Court interpolates that such arrangement has operated in the absence of Court Orders). There is discrete evidence before the Court that tends to supports that view, for example, Exhibit K, being a series of text message exchanges between the parties, in relation to the child’s schooling, in about early June 2017, whilst not overlooking the wife’s assertion that the parties’ ability to communicate in a timely fashion has not always been optimal.
The Family Report writer recommended that the child continue to spend time and communicate with each of her parents in line with the current arrangement.
In the view of the Court, it will be in the best interests of the child that the child spend time with each parent pursuant to an equal time arrangement.
Summary
Evaluating the above discussed considerations, it will be in the best interests of the child to make final parenting Orders as follows:
(1)That the parties have equal shared parental responsibility of the child, [X] (“[X]”) born 2010.
(2)[X] shall spend time and communicate with the Father as follows:
(a) During the school term:
(i) Week 1 – from Wednesday after school until Sunday 10:00am; and
(ii) Week 2 – from Thursday after school until Sunday 10:00am and so on.
(iii) Each school term, the parties shall have one full weekend with [X], being from Friday after school until Monday morning.
(b)Over the Easter period from the conclusion of school on Thursday until 5pm on Easter Sunday.
(c)On Father’s Day in the event [X] is not otherwise in the Father’s care the Father’s time in accordance with Order (2)(a) be extended until the commencement of school the following Monday.
(d)During the Term 1, 2 and 3 school holiday periods from the conclusion of the last school day of term until 10am on the second Saturday of the school holiday period.
(e)During the Christmas summer school holiday period for the first half of the school holidays in 2017 and each alternate year thereafter and the second half of the school holidays commencing 2018 and each alternate year thereafter.
At all other times, subject to the parenting Orders below, the child shall live with the mother.
(3)[X] will spend time with the parent that she would not otherwise be with during the period 5pm Christmas Eve until 5pm Christmas Day.
(4)[X] will spend time with the parent that she would not otherwise be with during the period 9am New Year’s Eve until 10am New Year’s Day.
(5)[X] will spend time with the parent that she would not otherwise be living with by agreement and both parents will use their best endeavours to ensure that the other parent is able to spend some time with [X], noting that she may have extra-curricular activities on that day.
(6)The Father’s time with [X] pursuant to Order 2(a) is suspended from 5pm on the day preceding Mother’s Day.
(7)For the purposes of changeover that do not occur at school, the Mother or her agent is to deliver [X] to the paternal grandmother’s residence at Property A or such other place as agreed by the parties and the Father or his agent shall return [X] to the Mother’s residence or such other place as nominated by the Mother.
(8)The Mother and Father shall notify the other parent by way of text or phone call in the event that they will be more than 15 minutes late for the purposes of either collecting or returning [X] at the commencement or conclusion of her spending time with the Father.
(9)Each parent is permitted to travel with [X] outside of the Commonwealth of Australia upon compliance with the terms set out in Order 10 below. Each parent is permitted to travel with [X] once every two years for a period of no more than four weeks, unless there has been written agreement between the parties.
(10)That pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth), both parties shall be entitled to take [X] or cause for [X] to be temporarily removed, to a place outside of the Commonwealth of Australia on the basis that the following provisions have been satisfied:
(a)That the travelling parent shall first provide to the non-travelling parent at least two (2) months prior to any intended travel, the written details of the following:
(b)The names of all places outside of the Commonwealth of Australia where it is proposed that [X] is to travel (being countries, cities and towns);
(c)The proposed dates of travel including departure and return dates; and
(d)The contact telephone numbers, and addresses for all the places where it is proposed that [X] will be staying overnight when outside of the Commonwealth of Australia.
(e)That in the event the intended period of travel time exceeds three (3) weeks and does not occur wholly during a school holiday period the non-travelling parent must provide express written consent to the travelling parent.
(f)Not less than 14 days prior to the proposed date of [X]’s departure from the Commonwealth of Australia, the travelling parent must provide to the non-travelling parent the following further documents and information in writing:
(i) A photocopy of all return airline and/or shipping tickets for [X] evidencing [X]’s return travel to Australia taken from the original or the same referred to;
(ii) A copy of the relevant travel insurance policy verifying that whilst [X] is travelling outside the Commonwealth of Australia she is listed and covered on valid travel insurance policy for the duration of the time she is overseas;
(iii) Copies of all written itineraries for the actual overseas travel; and
(iv) Details in writing confirming the contact telephone numbers upon which [X] may be contacted whilst overseas and details in writing of all addresses of the places where [X] will be staying overnight when outside the Commonwealth of Australia.
(g)The above notice period is suspended in the event that the Mother is required to travel overseas in an emergency relating to her family and that the Mother be permitted to travel with [X] in the event of an emergency.
(h)Within 48 hours of receipt of itinerary and travel details pursuant to this Order, the non-travelling parent will provide their written consent to the travelling parent in accordance with Section 65Y Family Law Act 1975 (Cth).
(i)That for the purposes of facilitating [X]’s travel outside the Commonwealth of Australia pursuant to these Orders, and in the event [X] requires a current Australian passport, travel visas and/or other travel related documents for such travel, then both parties shall do all things necessary, sign all documents deeds and instruments and provide all necessary consents to facilitate the issue of an Australian passport, all required travel visas and all other travel related documents for [X] within seven (7) days of the non-travelling parent receiving a request from the travelling parent.
(j)The costs of any passport applications and photographs for [X]’s Australian passport and maintaining [X]’s Australian passports until eighteen (18) years of age shall be shared equally between both parents.
(k)The parties will each be solely responsible for the costs associated with any Visa application associated with their proposed travel.
(l)When [X] is not travelling [X]’s Australian passports shall be held by the Father.
(m)Within 72 hours of [X]’s return to Australia, her passport is to be returned to the Father.
(n)[X]’s name shall be removed from the Airport Watchlist and PACE Alert system.
(o)The Court requests the assistance of the Australian Federal Police in the implementation of Order (10)(n) above.
(11)The Mother and Father are both restrained from denigrating the other parent or a family member or allowing any other third party to do so in [X]’s presence or hearing.
(12)The Mother and Father are restrained from saying or doing anything to discourage [X] from maintaining a good relationship with their respective families.
(13)The Mother and Father do all things to facilitate [X]’s participation in such extra-curricular activities as [X] expresses a reasonable wish to pursue and the mother and father will consult with each other prior to [X] being enrolled in any extra-curricular activity that shall occur during the other parent’s time with [X].
(14)Both parents and members of the paternal and maternal families be permitted to attend school and extra-curricular events that [X] is involved in.
(15)Each parent must provide and keep up to date, the name/s and all contact details and give any authority and any consent necessary to any provider to ensure the other parent is able to contact and discuss and receive any and all information and reports as and when they are available on any matter in relation to [X], particularly with regard to the following any and all medical and health treating doctors, health practitioners, therapists, physiotherapist, health related professionals, dieticians and including alternative health treatments or care [X] may receive.
(16)At the time of booking or as soon as practicable and prior to any consultation, each party must inform and keep the other party informed of all doctors, health care/medical professionals including school counsellors or alternative health care providers [X] attends and the initiating parent shall discuss the findings, outcomes and/or recommendations of such visits, emergency treatments or consultations with the other parent within two (2) days after the consultation.
(17)Each parent is to authorise and allow all doctors, health care/medical professionals including school counsellors or alternative health care providers to discuss treatment/s, care, findings or outcomes in relation to [X] with the other parent.
(18)In the event [X] is seriously ill or admitted to hospital the parent who has the care of [X] shall notify the other parent as soon as possible.
(19)Each parent must keep the other parent informed of their current residential address and provide written notice of any change in residential address, e-mail address and telephone numbers, including mobile and landline telephone numbers, within seven (7) days of any such change.
(20)In the event that the parents are unable to come to an arrangement in relation to [X], the issue/s in dispute shall be mediated by Relationships Australia or a suitably qualified Family Dispute Resolution practitioner.
(21)That in the event that each party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
(22)The Father and Mother are restrained from discussing the breakdown of the relationship with [X].
(23)That the Mother be permitted to obtain a paediatric assessment for [X].
(24)That the parties shall do all such things necessary to follow the reasonable recommendations of the paediatrician engaged by the Mother for the purpose of providing an assessment for [X].
I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 17 September 2018
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Costs
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Remedies
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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