Barton and Barton
[2008] FamCA 996
•29 July 2008
FAMILY COURT OF AUSTRALIA
| BARTON & BARTON | [2008] FamCA 996 |
| FAMILY LAW – PROPERTY SETTLEMENT FAMILY LAW – CHILDREN – With whom a child spends time – Father living overseas |
| APPLICANT: | Mrs Barton |
| RESPONDENT: | Mr Barton |
| FILE NUMBER: | SYC | 3379 | of | 2007 |
| DATE DELIVERED: | 29 July 2008 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | STEVENSON J |
| HEARING DATE: | 16, 17, 18 June 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom |
| SOLICITOR FOR THE APPLICANT: | Dimocks Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Rees |
| SOLICITOR FOR THE RESPONDENT: | Craddock Murray Neumann |
Orders
PROPERTY ORDERS
It is noted that the net pool of assets is calculated by adding:
1.The net proceeds of sale or the shortfall after the sale of the W Street, United Kingdom property;
2.The costs and fees of the accountant arising from order 7 herein;
3.The net value of the H Street and C Street, United Kingdom properties;
and deducting therefrom the following liabilities:
4.
Royal Bank of Scotland MasterCard (H Street and W Street loans):
$7,038
5.
MINT Visacard:
$11,130
6.
MBNA (H Street and W Street loans) $33,726 less ₤12,000 (legal fees)
$9,726
7.
Halifax Visa (H Street and W Street loans):
$17,800
$45,694
That the husband forthwith do all acts and things and sign all necessary documents to sell the W Street property and to distribute the proceeds as follows:
1.In payment of agents commission, advertising expenses and legal expenses of the sales and all taxes incurred thereon;
2.In payment of the mortgage/s secured over the property;
3.In payment of the costs of necessary repairs and refurbishment to ready the property for sale;
4.That the balance thereafter if any, be paid to an interest bearing account in the names of both parties, pending the operation of order 3.
that the husband pay to the wife within 60 days of the date of settlement of the sale of the W Street property, a sum equivalent to 70% of the net asset pool (“the payment”).
That the wife forthwith do all acts and things and sign all necessary documents to transfer her interest in the C Street and H Street properties to the husband and the husband shall indemnify the wife in relation to all encumbrances thereon.
That the husband forthwith do all acts and things and sign all necessary documents to transfer his interest in the D property to the wife and the wife shall indemnify the husband in relation to the Commonwealth Bank mortgage secured thereon and the loan from the wife’s mother and stepfather.
That in the event the husband does not make the payment in the prescribed period then each party shall do all acts and things and sign all documents necessary to forthwith sell the C Street and H Street properties and to distribute the proceeds of the sale as follows:
1.In payment of agents commission, advertising expenses and legal expenses of the sales and all taxes incurred thereon;
2.In payment of the mortgage/s secured over the property;
3.The credit card liabilities referred to in notation 1 above;
4.In payment of all United Kingdom Capital Gains Tax (“CGT”) and any other taxes arising out of the sale;
5.In payment of the balance as to 70% to the wife and the balance to the husband.
That the parties forthwith nominate a joint accountant to calculate the amount of capital gains tax payable on the notional sale of the H Street and C Street properties and to calculate the net value after the discharge of the mortgage/s and tax, of those properties.
That the parties are each declared to be solely entitled to:
1.Any chattels, goods and furnishings and other property which are at the date hereof in their possession respectively;
2.Any monies, shares, debentures, retirement and/or superannuation and/or pension funds which stand in their sole name respectively at the date hereof.
That the wife retain sole responsibility and liability for any loans, liabilities and credit obtained by her in her name for any purpose and indemnify and keep indemnified the husband with respect to all such liabilities.
PARENTING ORDERS
That all existing orders in relation to the child … born … July 2004 (“the child”) be discharged.
That the child live with the mother at all times other than the periods prescribed in order 12, during which she will live with the father.
That the child live with the father as follows:
12.1In Australia until she commences her formal education as follows:
12.1.1for not less than 6 weeks per calendar year, to coincide with the father’s leave entitlements, on dates to be notified by the father to the mother in writing or email no less than 28 days prior to the commencement of all such periods
12.1.2during the first such period, the child will be in the care of the father from 10:00am until 6:00pm on the first and second days and then from 10:00am on the next day until 6:00pm on the last day of the period, provided that the father will return the child to the mother each alternate day from 10:00am until 2:00pm
12.1.3during the second such period, the child will be in the care of the father from 10:00am until 6:00pm on the first and second days and then from 10:00am on the next day until 6:00pm on the last day of the period provided that the father will return the child to the mother from 10:00am until 2:00pm on every third day
12.1.4during the third such period, the child will be in the care of the father from 10:00am until 6:00pm on the first and second days and then from 10:00am on the next day until 6:00pm on the last day of the period, provided that the father will return the child to the mother from 10:00am until 2:00pm on every fourth day
12.1.5during all subsequent periods, the child will be in the care of the father from 10:00am until 6:00pm on the first day and then from 10:00am on the next day until 6:00pm on the last day of the period
12.2After the child commences her formal education, for the periods prescribed in order 12.1.5 provided that the father shall use his best endeavours to arrange for such periods to occur during school holidays.
12.3From the time of the child’s 7th birthday, for not less than 4 weeks per calendar year on the following conditions:
12.3.1the father shall nominate the dates of such periods and advise the mother in writing or by email no less than 6 weeks prior to the commencement of such periods
12.3.2that the mother accompany the child on the travel for the first and second periods of living with the father in the United Kingdom
12.3.3the father shall meet the cost of airline tickets for the child and the mother and he shall pay for accommodation, of a reasonable standard, for the mother while she is in the United Kingdom or, at his election, he will alternatively pay her airfares to return to Australia but collect the child in the United Kingdom at the conclusion of these periods
12.3.4from the time of the child’s 12th birthday, she will travel unaccompanied between Australia and the United Kingdom, unless the father or a member of his family elects to accompany her
12.3.5the mother shall cause the child to be delivered to and collected from Sydney International Airport for the purposes of implementation of these orders
12.3.6the mother communicate with the child by telephone every second evening, between 5:30pm and 6:30pm (United Kingdom time) when she is living with the father in the United Kingdom, unless the parties agree on different times
12.3.7the father shall provide to the mother copies of all airline tickets and itineraries referable to the child’s travel for the purposes of these orders.
13.1 That the child communicate with the father, while she is in Australia and he is in the United Kingdom or another overseas venue to the extent possible, by telephone and/or webcam and or skype at reasonable times, being not less than 4 times per week between 7:00pm and 7:30pm on Tuesdays, Thursdays, Saturdays and Sundays, Fathers Day, the child’s birthday, the father’s birthday, Christmas Eve and Christmas Day unless the parties agree on different times.
13.2For the purposes of implementation of order 13.1 the mother shall:
13.2.1ensure that the child is present at her home to participate in such communication
13.2.2ensure that she has a land telephone line available and operational for the purposes of such communication and that she keeps the father informed of the number at all times
13.2.3ensure that a computer webcam and/or skype and/or speaker facilities are available and operational and placed in a position where the child can both see and hear the father
13.2.4assist the child in participating in such communication with the father.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.
IT IS NOTED that publication of this judgment under the pseudonym Barton & Barton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: SYC 3379 of 2007
| MRS BARTON |
Applicant
And
| MR BARTON |
Respondent
REASONS FOR JUDGMENT
THE PROCEEDINGS
Mr Barton (“the husband”) and Mrs Barton (“the wife”) disagree as to what arrangements should be made to enable their only child, born in July 2004 (“the child”) to spend time with her father. There are also issues as to property settlement, spouse maintenance and child support.
The parenting issues are complicated by the fact that the wife and the child live in Sydney while the father is a resident of the United Kingdom. A further difficulty is that he is in employed by the United Kingdom government and is regularly posted out of the United Kingdom.
BACKGROUND
The husband, who is 36, and the wife, who is 39, began to live together in England in October 2000. They married in Sydney in April 2003 and separated on 21 December 2006.
At the commencement of cohabitation the husband was employed in the United Kingdom public service, which he had joined in 1995. He claimed that he owned furniture and had the equivalent of $27,000 in savings when the parties began to live together. The wife denied that he had any savings. For reasons which will become obvious I am comfortable in accepting the husband’s version of events over that of the wife, wherever any conflict arises. I accept that he had savings of about $27,000 at the commencement of cohabitation.
The wife was employed as a nurse or nanny at the commencement of cohabitation. She said that she had approximately $16,000 in savings in Australia. The husband said that he did not know of any such savings. It may be that she had this money but I accept the husband’s evidence that it was not used for the joint benefit of the parties.
When the husband and the wife began to live together, they occupied accommodation provided by the United Kingdom government. For the next two years they lived in government accommodation, for which the husband paid the rent.
In September 2002 the wife’s visa expired and she was obliged to leave for Australia. She spent approximately six weeks over Christmas 2002 in England with the husband and returned to Australia in December 2002. The parties married in Sydney in April 2003 and went back to England in May 2003.
The wife commenced full time employment as a nurse in July 2003. During the course of her pregnancy she became ill and had to cease work in October 2003.
Shortly before the wife returned to Australia in September 2002 the parties purchased a property at C Street, in the United Kingdom in the sole name of the husband. The purchase price was the equivalent of $345,000, which came from a building society mortgage loan of $308,000 and a government loan of $18,500. The husband said that his savings provided the deposit and about $14,000 for renovations to the property.
The wife disputed that the husband had savings to pay the deposit, and presumably, also to meet the cost of the renovations. She suggested no alternate source for these funds. Again, I prefer the evidence of the husband.
In January 2004 the parties jointly purchased an investment property at H Street in the United Kingdom for the equivalent of $235,750. They obtained a mortgage loan of $223,963 and the balance of the purchase money, together with acquisition costs, was borrowed or charged to credit cards.
In May 2004 the husband was posted overseas for six weeks. The parties agreed that the wife would return to Australia to await the birth of the child. They opened a Commonwealth Bank account in Sydney, into which the husband’s wages were deposited. The wife withdrew money from this account to meet her living expenses.
The child was born three weeks prematurely in July 2004. The wife was in intensive care for seven days following the birth. She underwent surgery and remained in hospital for six weeks. The child was discharged from hospital after four or five weeks and the husband assisted with her care at the home of the wife’s mother and stepfather. He was obliged to return to England in mid August 2004 but came to Sydney on leave between 4 October and 26 October 2004 and 4 December 2004 and 11 January 2005. He then arranged for a posting in Australia between April and October 2005.
During the husband’s posting in Australia the parties lived in rented accommodation in Sydney. The wife underwent further surgery in February 2005 and July 2005. On the second of these occasions she was hospitalised for 14 days, after which she and the child stayed with her mother and stepfather.
In July 2005 the parties purchased jointly an investment property at D in New South Wales. The purchase price was either $465,000 or $450,000. The parties borrowed $350,000 from the Colonial State Bank and $150,000 from the wife’s mother and stepfather.
With part of the money loaned by the wife’s mother and stepfather, the parties set up a mortgage offset facility (“the Misa account”). The husband said that $50,000 was deposited into this account, whereas the wife said that the amount was only $35,000. The balance of the account on 1 January 2006 was $45,680 (exhibit 7), which shows that the husband’s evidence was correct.
In November 2005 the family returned to England and took up residence in government accommodation. In July 2006 they purchased a property, W Street, in the sole name of the husband for the equivalent of $345,000. The purchase money came from a building society mortgage of $328,783 and credit card borrowings of $32,469.
In September 2006 the husband was posted overseas for six months and the wife returned to Australia with the child. In December 2006 the wife returned alone to England, one week before the commencement of the husband’s leave. They separated on his return from overseas and the wife departed for Australia on 21 December 2006.
Between 21 November 2006 and 8 January 2007 the wife withdrew $69,221 from bank accounts in Australia and the United Kingdom, and charged $16,143 to the husband’s credit cards. He was posted overseas when these transactions took place.
On 8 February 2007 the husband travelled to Australia from his overseas posting. He was in Sydney until 13 February 2007 and spent time with the child for short day time periods, in the presence of the wife. I accept his evidence that he saw the child on three occasions during this period. I reject the wife’s contention that there were five such occasions.
In March 2007 the wife lodged an application with the Child Support Agency, which resulted in an assessment of $1,280 per month. I accept the husband’s evidence that he did not receive notification of this assessment because he was overseas.
On 10 May 2007 the husband again travelled to Australia. On arrival he paid child support of $2,200 in cash to the wife. As he was unable to see the child until 14 May 2007, he travelled to Adelaide to visit friends on the preceding weekend. The wife allowed him time with the child, in her presence, for short daytime periods on 14, 15, 16, 17, 20 and 21 May 2007. The husband departed Australia on 22 May 2007.
On 6 July 2007 the Federal Magistrates Court made interim orders providing that the husband have telephone communication with the child each Sunday, Tuesday, Thursday and Saturday. Further interim orders were made on 21 August 2007, which provided that the child spend time with her father in Australia between 13 and 22 September 2007. This regime progressed to unsupervised time but did not extend to overnight stays.
Difficulties arose in the implementation of these orders, due to confusion about the husband’s accommodation in Sydney. The husband conceded that a mistake on his part led to these problems. The child was able to spend time with her father despite these complications.
The husband was in Sydney for two weeks around the time of the final hearing, which commenced on 16 June 2008. No arrangement was put in place for the child to spend time with her father during this period. The wife sent her to stay with her sister on the Central Coast. I made further interim orders on 18 June 2008 and the child was then able to spend time with her father each day and overnight, on two occasions.
Telephone communication between the child and her father has been problematic, with each of the parties blaming the other for these difficulties. The wife maintained that the husband rarely calls and he alleged that she and her parents are consistently uncooperative in allowing him to speak to the child. I accept his evidence on this issue. Communication between the child and her father by Skype now seems to be working well.
THE PROPOSALS OF THE PARTIES
The wife proposed a graduated regime for the child to spend time with her father in Australia. There would be no overnight stays until his second visit, which would be in 2009. The wife would accompany the child to the United Kingdom to spend time with her father in approximately three and a half year’s time.
The wife sought a child support departure order, to the effect that the husband pay all school fees and expenses in addition to the administrative assessment. She intends to enrol the child at a private, church-based, school to which the husband is opposed. She also sought an order for spouse maintenance of $500 per week, continuing until her remarriage or the death of one of the parties.
The wife sought an adjournment of the property proceedings, pursuant to section 79(5), until the vesting of the husband’s Government Employees Pension Scheme superannuation benefit. Alternatively, she sought orders to the effect that he pay to her an amount equal to 80% of the equity in the C Street, H Street and W Street properties, upon which she would transfer her interest to him. She further sought orders for the sale of the D property and payment to her of the net proceeds.
The husband proposed that the child live with him in Australia for not less than six weeks and in the United Kingdom for not less than four weeks per year. All of these periods would coincide with his leave entitlements. The husband or a member of his family would accompany the child on the travel between Australia and the United Kingdom until she attains the age of 12 years. He proposed various modes of non face to face contact between himself and the child.
The husband proposed that his payments for air travel and accommodation, for the purpose of the child spending time with him, would be taken into account in the calculation of his child support assessment. He opposed the wife’s application for spouse maintenance.
By way of property settlement the husband sought an order for the sale of the W Street property and the transfer of the wife’s interest in the C Street and H Street properties to him. From the net proceeds of sale of the W Street property the wife would receive an amount equal to 60% of the total net value of the parties’ assets. He would transfer to the wife his interest in the D property, and she would indemnify him in relation to the mortgage and the loan from the wife’s mother and stepfather. The husband’s Proposed Minute of Property Orders contained a formula for calculation of the value of the net pool of assets, hence the amount which he would be required to pay to the wife.
APPROACH TO THESE PROCEEDINGS
Property Settlement
According to guidelines established through a series of leading decisions, the Court is required to determine the following matters on the evidence:
·firstly, the assets, liabilities and financial resources of the parties to the marriage are to be determined
·secondly, all relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other
·thirdly, the matters in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2) must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution
·finally, an order under section 79 must not be made unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order.
PARENTING ISSUES
It was agreed by counsel that it is not necessary that I go through the charade of considering whether the child should spend equal or substantial and significant time with each of her parents. It is patently clear that any such arrangements are geographically impossible, with the parents living on opposite sides of the world. I am grateful for counsel’s agreement.
In her affidavit the wife set out a series of complaints about the father as a person and a parent. In cross-examination, however, she was demonstrated to be untruthful and hypocritical in levelling a number of these criticisms. Her commitment to promoting the relationship between the child and her father thus appeared to be questionable.
The wife complained that the husband had a habit of visiting pornographic sites on the internet. She swore in her affidavit: “I have never watched or bought porn of any sort and I have certainly never watched it with [the husband] or anyone else.” and “I have never looked at porn with [the husband] or anyone else.” The husband said that they watched pornographic DVDs together, an activity which they both enjoyed.
The husband conceded that he had registered on an adult website which was apparently a forum for arranging sexual favours. He said that he did so as a joke, after receiving an email invitation from a friend. He said that the only response which he received was from a person who used the name “Britney Blowjob”. He said that he suspected this person to be the wife, as she had used this name in jest previously. He said that the wife laughed and admitted that she was this person when he asked her if that was the case.
In cross-examination the wife eventually admitted that she logged on to this site as “Britney Blowjob”. It is thus blatantly untrue that she has never looked at pornography, as she swore in her affidavit. I accept the husband’s evidence that they watched pornographic DVDs together during their relationship. The wife’s alleged concerns about the husband’s use of pornography are thus opportunistic and hypocritical.
The wife also complained that the husband went out at night on several occasions dressed as a female prostitute. In cross-examination she admitted that she and the husband went to about four fancy-dress parties when he dressed in this way. Apparently she was not sufficiently concerned about his attire to refuse to accompany him on these occasions. This alleged concern, too, appears to be contrived and hypocritical.
The wife next complained that the husband took nude photos of her without her consent. She maintained that she objected strongly when he asked her for such photos shortly before he departed for his overseas posting. In cross-examination the wife specifically denied that she had ever willingly involved herself in being photographed unclothed or partly clothed. She was then shown photographs in which she appeared partly unclad, in one case wearing the husband’s clothing. She was forced to admit that she “obviously was not unwilling” but claimed, incredibly in my view, to have forgotten that these photos had been taken by the husband. I should note that she denied, most unconvincingly, that the person depicted in one of the photographs was herself.
The wife claimed that she is concerned that the husband will wish to take naked photographs of the child. In my view, there is no basis at all for this assertion. I regard this professed concern as nothing but an example of her willingness to say whatever she thought was necessary to be successful in these proceedings.
The wife’s next complaint was that the husband drinks alcohol to excess. His response was that he did attend work functions and regularly stayed overnight. He said that he did so to avoid an expensive taxi fare home and because the wife objected to the smell of cigarette smoke on his clothes. He was not challenged on this evidence. He said also that the wife regularly went on social outings and came home affected by alcohol. Again, I accept his evidence in preference to that of the wife.
The husband said that, as a general proposition, he holds a high level security clearance as a government officer. His unchallenged evidence was that he would not be able to obtain this clearance if he had an alcohol problem or engaged in inappropriate sexual behaviour. I accept this evidence.
The wife complained also that the husband gave alcohol to the child. In his affidavit he referred to an incident when the child grabbed a glass of beer which he was drinking and pulled it to her mouth, while sitting on his lap. He removed the glass from her mouth before she drank the beer and he laughed because she had “a white moustache from the beer foam”. I accept the husband’s evidence and I regard this complaint, too, as contrived and baseless.
The wife next complained that the husband fails to abide by orders of the court. The husband admitted that he made a mistake in September 2007, in that he did not properly notify the wife about his accommodation in Sydney. I am satisfied that, on this occasion, he did all that he could to make his time with the child work smoothly but that the wife seized the opportunity to create difficulties.
The wife next sought to blame the husband for parental conflict which has occurred in the presence of the child. My overall impression of the evidence was that she, not the husband, has created much of this conflict. For example, she has threatened more than once to withhold time with the child unless the husband paid money in her bank account, as appears in the email correspondence between the parties (exhibit 14). She wrote, inter alia:
“You will get to see me and [the child] when the money is in the account and not a second before” and
“I haven’t even begun to be unreasonable. Put the money in the bank and I will be very accommodating. Antagonise me by withholding financial support and your world will come crashing down.”
In cross-examination the wife denied threatening to destroy the husband’s career. In an email dated 4 June 2007, however, she wrote:
“as for destroying your career….if you insist on pushing me to do something that I don’t feel is good for [the child], I will do whatever I have to, to keep her safe. If you force me to go to court, things will come out about you that will ruin your career. I can’t help that. I am just telling you what will happen. If you choose to be reasonable, then we won’t go to court, and your secrets will be safe.”
Provocative statements of this kind were bound to inflame the relationship between the parties. Again, I regard this supposed concern on the part of the wife as an opportunistic and hypocritical allegation.
The wife gave “specific examples of the father’s irresponsible parenting” in her affidavit. She referred to alleged occasions when the father left the child in the bath and went into a room next door, to use a computer. He admitted that he had left the bathroom on two occasions, to turn on the computer which commenced operation slowly. He conceded that he should not have done so. I am satisfied that he now regrets that he left the child alone in the bath, even for this short time, and that he would not do so again.
It was alleged that the husband has failed to properly secure the child while she is travelling in a motor vehicle. He conceded that, on one occasion in the United Kingdom, he allowed her to stand in the back seat on a short trip between a shop and the family home. Obviously, he should not have done so.
The orders of 21 August 2007 required the husband to have the child travel in a child restraint in accordance with the laws of New South Wales. A dispute arose between the parties in September 2007, when the husband was unable to secure a taxi with a child restraint. His version of events was that he was informed by the taxi company and by a police officer that it was not necessary for a three year old child to travel in a restraint. Subsequently, in any event, he hired a car with a child restraint to transport the child.
The wife complained in her affidavit that the husband failed to comply with an order made on 21 August 2007, that he attend a Parenting After Separation course. This allegation is simply incorrect. The husband attended two parenting courses in the United Kingdom in May 2008.
Ultimately, I am not satisfied that the wife has any valid basis for concern about the child’s safety while in the care of her father. My overall impression was that she distorted past incidents, or was simply untruthful, in order to cast aspersions on the husband’s character and his ability and commitment as a parent.
I had the benefit of evidence from a Family Consultant, Dr V, who interviewed the parties in September 2007 and prepared a report dated 10 October 2007. She also gave oral evidence at the hearing.
Dr V reported that, at the start of a formal observation with her father, the child exclaimed “Daddy” and ran over to him and hugged him. Dr V observed “a warm and affectionate interaction” between them. In her oral evidence she said that there was clearly an attachment between the child and her father, which is stronger than she would have expected.
Dr V saw the husband and the wife together. She noted that “[the wife] was verbally aggressive and derogatory towards [the husband]”. Her assessment was as follows:
“She seems to have a strong need to be highly protective of [the child], maintain a firm sense of control in [the child’s] life and monitor the extent of [the husband’s] involvement with the child.”
Dr V noted that the wife was unable to make any positive comments about “how [the father] added constructively to [the child’s] life during the marriage”.
Dr V observed that the husband and the wife feel disdain for each other, which she described as “palpable and intense”. She assessed that the wife appears to have a limited capacity to acknowledge the positive role the husband might play in the child’s life, and noted that she expressed ambivalence about her willingness to facilitate the father/child relationship. She was concerned about a possible “eventual alienation of [the child] from [the husband]”, particularly given that they will have limited opportunities to spend time with each other.
In October 2007 Dr V recommended that the child have one overnight stay with her father by the end of his next visit to Australia. Pursuant to the interim orders which I made at the end of the hearing, overnight stays have now commenced. Dr V was of the view that there should be an extended period of several overnights in Australia, before the child travels to the United Kingdom to spend time with her father.
Dr V recommended that there be a graduated increase in the overnight periods which the child spends with her father. She observed that it will be a question of “taking it gently every time”, so that the child can reacquaint herself with her father.
On the vexed question of when visits to the United Kingdom should commence, Dr V was of the view that this arrangement could be considered once the child commences school. She said that a visit to the United Kingdom is “a big transition” and that it would be ideal if the wife accompanied the child.
CONCLUSION AS TO PARENTING ISSUES
Subject to her best interests, the child is entitled to a loving, constructive relationship with each of her parents. She is also entitled to experience life with her father and paternal family in the United Kingdom, at an age-appropriate time. I am not satisfied that the wife is committed to promoting and fostering the child’s relationship with her father and his family. It was my impression that her protestations to the contrary were nothing but empty words.
Dr V identified a strong attachment between the child and her father. She was prepared to recommend the introduction of overnight stays when she gave her oral evidence. I accept the expert opinion of Dr V that the child will need to be re-acquainted with her father at the start of each visit. I accept also that the duration of continuous overnight stays should be increased gradually.
It seems to me that the husband’s proposal introduces block periods of time too quickly, as there is no graduation process at all. On the other hand, the wife’s proposal appears to me to be unnecessarily restrictive of the child’s time with her father. In my opinion, a compromise will best meet the child’s interests.
The Minute of parenting orders submitted on behalf of the wife contained eight proposed restrictions on the husband’s behaviour, while the child is in his care. I do not consider that the evidence even approaches a justification for any of these restrictions. I will make none of these orders.
The wife sought an order that she have sole parental responsibility for the child. I can see no basis for depriving the child of this kind of input into her life from her father and no justification at all for such an exclusion of the husband. I will not make this order.
SETTLEMENT OF PROPERTY
The Assets, Liabilities And Financial Resources
The Assets
The parties agreed in relation to the value of the real estate assets, the husband’s motor vehicle and the wife’s jewellery. There was a dispute as to whether any of the money taken by the wife in November/December 2006 and January 2007 should be added back to the list of assets. There was also a dispute as to whether a sum of $6,000, which the husband withdrew from the D property mortgage offset account in January 2007, and an amount of $33,000, which he received from the sale of shares and bonds, should be added back to the list of assets.
The reality is that these suggested addbacks are largely an academic consideration. A total amount of around $124,000 has been extracted from the parties’ asset base. At present the net equity in their property is around $195,500, before any allowance is made for credit debts, capital gains tax and the costs of sale of the four real estate assets. There is thus little in the way of net assets to accommodate any notional addbacks.
In cross-examination the wife admitted that she “took every cent out of these two accounts”, being the joint Barclays Bank account and a Visa credit card facility. The result was that that the Barclays Bank account was placed in overdraft and the mortgage instalments on the United Kingdom properties could not be paid. The limit on the Visacard was exceeded as a consequence of her actions.
The wife further admitted that the money in the Misa account would have covered the shortfall between the D property mortgage and the rental income for 29 months, if she had not withdrawn $48,451 between 21 November 2006 and 8 January 2007. Since the separation she has received rental income of $400, and later $410, per week and paid the mortgage instalments of $525 per week.
The husband withdrew $6,000 from the Misa account on 5 January 2007. He deposited this money into a joint Streamline account, which was overdrawn at that time. He subsequently lodged $5,000 into a new Barclays Bank account in his sole name. He used this money to pay “UK Barclay account bills”. He also sold shares and bonds during January 2007 for the equivalent of $33,000.
The husband’s evidence, which I accept, is that he used this money to pay the mortgages on the United Kingdom properties, credit card arrears and living expenses. He was placed in an invidious financial position when the wife appropriated all possible money from the Barclays Bank and Visacard accounts. He said, and I accept, that he also repaid part of a loan from his father. I see no reason to add back the money which the husband received from the sale of shares and bonds in these circumstances.
It may have been appropriate to add back at least a portion of the money taken by the wife, if the parties were in a more advantageous financial position. It seems to me that to do so would largely be a futile exercise, as I have already noted. I will, however, take into account the wife’s withdrawal of approximately $85,000 pursuant to section 75(2)(o).
I thus find the assets of these parties to be as follows:
Non-Superannuation Assets
1.
D property
$476,000
2.
H Street property
$248,487
3.
C Street property
$430,000
4.
W Street property
$294,857
5.
1998 BMW motor vehicle
$1,600
6.
Jewellery
$3,550
$1,454,494
Superannuation Assets
7.
Mercer Superannuation Benefit (W)
$27,555
The Liabilities
There was agreement in relation to the mortgages on the four real estate assets and the loan from the wife’s mother and stepfather. There was a dispute as to the appropriate treatment of the husband’s credit card debts and as to the existence of an alleged loan from his father. Further, there were issues as to supposed loans of $5,000 from the wife’s mother and $14,730 from her sister, as well as the appropriate treatment of her Visacard debt of $4,021.
The wife claimed that her mother provided $2,500 in each of April and May 2008, to cover the mortgage on the D property. On this basis, she claimed that the parties have a joint debt to her mother in the sum of $5,000. She annexed to her affidavit copies of cheque butts, containing the self-serving words: “[The wife] mortgage payment [D property]”. Of course, these words do not establish that the cheques were drawn for the stated purpose and the relevant arithmetic flies in the fact of this contention. The rental income is $410 per week and the mortgage repayments are approximately $525 per week. Even allowing for agent’s commission, it is impossible to see how an additional sum of around $625 per week was required to service the mortgage.
I thus reject the suggestion that the parties have a joint debt to the wife’s mother of $5,000. In my view, this contention is nothing but an example of the wife’s preparedness to take every opportunity to advance her case, with truthfulness being a secondary consideration.
There was no evidence whatsoever that the wife owes her sister $14,730, other than a bare entry in her Financial Statement: “debt to sister E $14,730”. There was nothing in her affidavit to explain when and how this alleged liability came into existence, let alone any corroborative evidence from the unnamed sister. I reject the suggestion that the wife has a debt to her sister of $14,730 and make an observation similar to that relating to the supposed joint loan from the wife’s mother.
The only evidence in relation to the wife’s Visacard debt was an entry in her Financial Statement: “E $4,016”. There was nothing in her affidavit as to when these charges were incurred or for what purpose. In these circumstances, I will not include the wife’s Visacard debt as a liability.
The husband has five credit card debts, totalling approximately $56,000. Although there was no specific evidence as to the circumstances in which these liabilities arose, it is clear from his affidavit that his credit card debts date back to the purchase of the H Street property in January 2004. Since that time he has become involved in a cycle of obtaining new credit cards to cover existing debts and also to finance in part the acquisition of the W Street property.
The husband’s credit card debt situation was exacerbated by the wife’s removal of all of the funds available to the parties in the United Kingdom in November/ December 2006 and January 2007. She also charged $4,144 to his Amex account at that time. The husband said, and I accept, that he was thus obliged to make further credit card borrowings simply to meet recurring expenses and to pay the United Kingdom mortgages. He said in his affidavit that his credit card debts relate to “separation and pre-separation liabilities”, with the exception of an amount of ₤12,000. The latter amount related to legal costs did not appear to be included in the joint balance sheet. I will take the husband’s credit card debts into account in calculating the value of the net pool of property.
The husband alleged that he has a debt to his father of $7,500. The evidence in relation to this liability is deficient and it will not be included in the balance sheet.
I thus find the liabilities of the parties to be as follows:
1.
Mortgage on the D property
$350,106
2.
Mortgage on the H Street property
$201.340
3.
Mortgage on the C Street property
$260,146
4.
Mortgage on the W Street property
$292,178
5.
Loan from the wife’s mother and stepfather
$150,000
6.
The husband’s RBA MasterCard
$8,666
7.
The husband’s Halifax MasterCard
$21,250
8.
The husband’s MBMA Visa card
$10,054
9.
The husband’s Mint MasterCard
$13,409
10.
The husband’s Amex card
$2,713
11.
UK government home loan
$7,507
12.
The husband’s Barclay Bank overdraft
$6,000
$1,323,369
Financial Resources
The husband’s Government Employees Pension Scheme is a United Kingdom benefit, arising from his service in the United Kingdom public service. It was agreed that this benefit is a financial resource and should not treated as a superannuation asset.
The Contributions of the Parties
It was agreed by counsel that contributions should be found to be equal as at the date of trial. In my view, this agreement properly reflects the contributions of the parties and would have been my finding in any event.
Section 75(2) Factors
There was a concession on behalf of the husband that there should be an adjustment pursuant to section 75(2) in favour of the wife. It was recognised that she has a restricted capacity to engage in paid employment and that she will have responsibility for a very large part of the care of the parties’ child. On the other hand, it was submitted that the money withdrawn by the wife should be taken into account pursuant to section 75(2)(o). As well, it was emphasised that the wife will be free of all of the United Kingdom debts but the husband will be left to service these mortgages for some months, even if the properties are ultimately sold. It was thus submitted that the appropriate adjustment is 10% of the net pool.
The wife sought orders to the effect that she receive property to the value of at least 80% of the net pool. Her case was thus that the appropriate adjustment in her favour is no less than 30% of the net pool. It was contended that the section 75(2) factors “overwhelmingly” favour her, primarily because of her responsibility to care for the parties’ child; her very limited capacity to engage in paid employment and the husband’s superior income and financial resources.
I have considered all matters listed in section 75(2) but I will now refer only to those matters which appear to me to be relevant to the present proceedings.
section 75(2)(a): the age and state of health of each of the parties;
The husband is 36 years old and in good health. The wife is 39 and suffers from a number of serious health problems.
Professor B, a gastro-enterologist, and Professor N, a consultant physician in rehabilitation medicine, were engaged as expert witnesses in the cases for the wife and the husband respectively. They each provided a report and they prepared a joint statement dated 17 June 2008 (exhibit 16).
Professors B and N agreed on the following matters relating to the wife’s health and capacity to engage in paid employment:
·she suffers “very severe” Crohn’s disease, which is unpredictable in its manifestations
·paid employment for her is not feasible for four months, while she is undergoing treatment in an attempt to stabilise her condition
·after four months she could undertake employment for 8 hours per week
·after that further period of four months, there should be a reassessment of her Crohn’s disease and employment progress
·for the next 15 years she “is to aim for 12 hours per week paid employment”.
section 75(2)(b): the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The husband said that he earns approximately $100,000 per annum from his employment with the United Kingdom government. Clearly he has a much greater capacity for gainful employment than does the wife. At best, she will be able to work for 15 hours per week in approximately 8 months’ time.
The wife’s health problems, coupled with her care of the parties’ child, mean that she is unlikely ever again to earn a reasonable level of income. On the other hand the husband has secure employment in the government of the United Kingdom.
section 75(2)(c): whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The wife has the responsibility to care for the parties’ four year old daughter. Geographical constraints mean that, for most of the time, the husband will be unable to assist with the child’s care.
section 75(2)(na): whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The husband currently pays child support of $1,274 per month. Following an assessment dated 5 May 2008, he will pay $1,000 per month for the period 1 July 2008 to 14 September 2009.
section 75(2)(o): any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
As noted, the wife removed approximately $85,000 from the parties’ bank accounts and credit card facilities between November 2006 and January 2007. This amount equals around $1,130 per week for the period January 2007 until the date of hearing. In addition, she received rent of $410 per week for the D property and child support of about $300 per week from mid-2007.
The wife thus had available to her funds equivalent to around $1,830 per week and a mortgage liability of $525 per week. I do not accept that the wife spent the money she withdrew between November 2006/January 2007 entirely on the D property mortgage and living expenses. In my view she has chosen not to account fully for the way in which she disposed of this money. It seems to me to be appropriate that her use of this money is balanced against the section 75(2) factors which weigh in her favour.
If it were not for the wife’s taking of $85,000 I would assess her section 75(2) adjustment at 25% of the net pool of property. As she did take this money and, in my view, failed satisfactorily to account for its use, I assess her overall section 75(2) adjustment at 20% of the net pool.
Conclusion
It follows that I find that the net pool of property should be divided as to 70% to the wife and 30% to the husband. The value of the net pool cannot be calculated precisely until there is an estimate of the capital gains tax payable on the sale of the three United Kingdom properties.
The minute of proposed orders submitted on behalf of the husband provides a useful formula for calculation of the value net pool of property. This proposal takes into account the husband’s credit card debts, which is consistent with my findings. In fact, this formula would operate to the wife’s advantage, as it deducts credit card debts amounting to $45,694 rather than $56,092. It does not deduct the government loan of $7,507, the Amex debt of $2,713 and the Barclays Bank overdraft of $6,000.
The Minute submitted on behalf of the husband allows him to attempt to retain the United Kingdom properties. In my view there is no reason to deny him this opportunity. I thus propose to make orders in accordance with the scheme set out in the Minute submitted on his behalf. It is necessary only that the figure of 70% be substituted for 60%, wherever the latter appears in the Minute. This significant differential between the entitlements of the parties seems to me to achieve justice and equity.
Spouse Maintenance
The wife sought an order that the husband pay to her spouse maintenance of $500 per week, until her remarriage or the death of one of the parties. The first issue to be considered is whether she has established that she is unable to support herself adequately within the meaning of section 72 of the Act. For present purposes I will assume that she has done so. There must be some doubt about this proposition, though, given that she took $85,000 from the parties’ bank accounts and credit card facilities around the time of the separation. As I have observed, I am not satisfied that she has properly accounted for her use of this money.
The next question is the extent to which the husband is reasonably able to support the wife. According to his Financial Statement, he earns $1,774 gross per week and receives rent totalling $900 per week. He explained that the figure of $1,774 per week is the standard rate of pay for his position but the reality is that he earns the equivalent of approximately $100,000 per annum. His gross weekly income thus consists of salary of approximately $1,923 and rent of $900 per week.
The husband listed his recurring weekly expenses as follows in his Financial Statement:
Income tax $460
Mortgages $952
Credit card payments $378
Government loan $42
Rent $220
Child support $268
Pension contribution $112
Car insurance $16
Life insurance $14
Rates $346
Total $2,808
This list does not include the cost of food, petrol and travel between the United Kingdom and Australia, to enable the child to spend time with her father. The husband’s unchallenged evidence was that food and petrol cost him $140 and $120 per week respectively.
These figures make it abundantly clear that the husband is unable to afford to pay spouse maintenance of $500 per week. It is my view, and I find, that he is unable reasonably to support the wife. The application for spouse maintenance will be dismissed.
Child Support
The wife sought an order that the husband pay all of the child’s school expenses, in addition to the amount of child support assessed administratively from time to time. The husband sought that the cost of travel and accommodation in Australia and the United Kingdom be taken into account in the assessment of child support.
It seems to me that the husband’s case in relation to child support is far stronger than that of the wife. He incurs substantial costs to enable him to spend time with the parties’ child. This ground is recognised in section 117(2)(b)(i) of the Child Support (Assessment) Act [1989].
In my view the wife failed to establish any ground for a departure order pursuant to section 117(2). Perhaps not surprisingly, there was no submission on her behalf as to what evidence might support a finding that she succeeded in establishing any of these grounds.
Even if the wife had established a ground for departure, it would not be just and equitable to make an order. The husband simply is unable to afford to pay the amount sought by the wife. The application for a child support departure order of the wife will be dismissed. It seems to me to be appropriate that the Child Support Agency take into account the husband’s cost of air fares and accommodation in assessing his liability. I will make orders in accordance with the Minute submitted on his behalf in relation to child support.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson
Associate:
Date: 29 July 2008
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Equity & Trusts
Legal Concepts
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Constructive Trust
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Fiduciary Duty
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Remedies
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Restitution
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