BEASON & WEBBER
[2020] FamCA 295
•29 April 2020
FAMILY COURT OF AUSTRALIA
| BEASON & WEBBER | [2020] FamCA 295 |
| FAMILY LAW – PARENTING – With whom the child shall live and spend time – Allocation of parental responsibility – Where the child currently lives with the mother and spends four nights a fortnight with the father – Where the child has a meaningful and positive relationship with both parents – Where previous allegations of sexual harm were unsubstantiated and both parties agree there is no risk of sexual harm to the child in either household – Where the presumption for equal shared parental responsibility is not rebutted – Ordered equal shared parental responsibility – Ordered the child live with the mother and spend time with the father as agreed, or failing agreement, five nights a fortnight during school term, half term school holidays and block time in Christmas holidays progressing to half once the child attains nine years of age – Ordered communication with the mother each Thursday when in the care of the father and each Thursday and Monday with the father when in the care of the mother. FAMILY LAW – PROPERTY – Where both parties agree for the wife to retain the former matrimonial home and for the husband’s superannuation to be split in the wife’s favour – Where the husband’s financial contribution is greater than that of the wife – Where the wife’s contribution to the care of the child requires acknowledgement – Where, as a result of these orders, the wife remains the primary carer of the child and the husband’s care is increased – Where the marriage was of no detriment to either party’s working lives or earning capacity – Where there continues a disparity of income where the wife earns 30 per cent less than the husband – Where the husband’s superannuation is more than that of the wife’s – Where it would be just and equitable to make an adjustment of interests – Ordered an adjustment to reflect equality between the parties. |
| Family Law Act 1975 (Cth) ss 75, 79, 60CC, 61DA |
| Bevan & Bevan [2013] FLC 93-545 Stanford & Stanford (2012) 247 CLR 108 |
| APPLICANT: | Mr Beason |
| RESPONDENT: | Ms Webber |
| INDEPENDENT CHILDREN’S LAWYER: | Adams & Associates |
| FILE NUMBER: | NCC | 2401 | of | 2017 |
| DATE DELIVERED: | 29 April 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 25 – 28 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bithrey |
| SOLICITOR FOR THE APPLICANT: | Gillard Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Tregilgas |
| SOLICITOR FOR THE RESPONDENT: | Kyle & McGowan Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McConaghy |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Adams & Associates |
Orders
Parenting
That the parties have equal shared parental responsibility for the child X born … 2014.
That the child lives with the mother.
That the child spends time with the father as agreed, and failing agreement as follows:
(a)During school terms on each alternate week from the conclusion of school on Wednesday until the commencement of school on the immediately following Monday commencing 29 April 2020;
(b)If any weekend above includes a public holiday on the Monday the time will conclude before school on the Tuesday;
(c)For the first half of the Term 1, 2 and 3 school holiday periods in odd numbered years and for the second half of the Term 1, 2 and 3 holidays in even numbered years:
(i)For the purpose of the above order the Term 1, 2 and 3 holidays are defined to commence at the conclusion of school on the last day that the child is required to attend school and conclude at the commencement of school on the first day the child is required to attend school in the new term with the changeover to occur at 12.00 pm on the middle Saturday of the period;
(d)During the Christmas holidays where Christmas Day falls in even numbered years as follows:
(i)From the conclusion of school on the last day that the child is required to attend school until 10.00 am on 26 December; and
(ii)From 2.00 pm on 2 January until 2.00 pm on 9 January; and
(iii)From 2.00 pm on 16 January until 2.00 pm on 23 January;
(e)During the Christmas holidays where Christmas Day falls in odd numbered years as follows:
(i)From 10.00 am on 26 December until 2.00 pm on 2 January; and
(ii)From 2.00 pm on 9 January until 2.00 pm on 16 January; and
(iii)From 2.00 pm on 23 January until the commencement of school on the first day that the child is required to attend school in the new school year;
(f)On the Father’s Day weekend 5.00 pm on Saturday until the commencement of school on the immediately following Monday;
(g)On the second occasion and each alternate occasion thereafter that Easter falls outside a school holiday period from the conclusion of school on the Thursday that immediately precedes Good Friday until the commencement of school on the immediately following Tuesday.
That the child spends additional time with the mother as follows, with the child’s time with the father to be suspended during such periods:
(a)On the Mother’s Day weekend 5.00 pm on Saturday until the commencement of school on the immediately following Monday;
(b)On the first occasion and each alternate occasion thereafter that Easter falls outside a school holiday period from the conclusion of school on the Thursday that immediately precedes Good Friday until the commencement of school on the immediately following Tuesday.
That upon the child attaining 9 years of age, Orders 3(c) and 3(d) are discharged and the child spend time with the father for half of the Christmas school holidays being:
(a) The first half in odd numbered years; and
(b) The second half in even numbered years:
(i)For the purpose of the above order the Christmas holidays are defined to commence on at the conclusion of school on the last day that the child is required to attend school and conclude at the commencement of school on the first day the child is required to attend school in the new term with the changeover to occur at 12.00 pm on the middle day or first of 2 middle days in the case of the period being an even number of days.
The above orders be facilitated as follows:
(a)Where a changeover coincides with the child’s attendance at school by the mother (or nominee) and father (or nominee) delivering the child to school or collecting the child from school as required;
(b)Otherwise by the parties (or their respective nominee) meeting at the Service Station at Suburb B, for the purpose of changeovers.
That the child will communicate each Thursday with the parent with whom she is not residing, by telephone, FaceTime or equivalent, with the call to be initiated by the parent with whom the child is not residing at 6.00 pm, and in addition with the father on the Monday of each fortnight which the child is not spending with him.
That each party be at liberty to attend significant school and extra-curricular events that each parent would ordinarily be expected to attend including, but not limited to, award presentation, performances, sporting games and competitions and parent teacher interviews.
That each parent is authorised to liaise directly with the child’s treating doctor(s), hospital and/or other health care professionals to obtain any information he or she requires about the child’s medical history and treatment.
That each parent is to notify the other of any accident or emergency in respect to the child as soon as is reasonably practicable.
That each parent is authorised to liaise directly with the child’s school to obtain any information he or she requires about the child’s education. The parents or either of them may provide a copy of these orders to the principal of the school which the child attends.
That each party be restrained from denigrating the other or their family in the presence or hearing of the child and will take all reasonable steps to ensure that no other person does so.
That the parties ensure that the child will continue to attend on her current medical practitioner, Dr C, or any other doctor at the D Medical Centre, unless there is a medical emergency or unless otherwise agreed in writing.
That the child will remain enrolled at E Public School until the completion of Year 6 unless otherwise agreed in writing between the parents.
That the child will attend the feeder high school for the primary school attended unless otherwise agreed in writing between the parents.
That the child will not be enrolled in any future extracurricular activities without the prior written consent of both parents.
Property
Within 42 days of the date of these orders the wife must:
(a)Pay sufficient moneys to the NAB to discharge the mortgages secured over F Street, Suburb B (‘the property’);
(b) That the wife pay to the husband the sum of $54,068.
Contemporaneously with the payment of the sum to the husband, each party shall do all acts and execute all documents required to transfer to the wife the whole of their right, title and interest in the property.
Both parties shall do all acts and execute a discharge authority addressed to the NAB to authorise them to prepare discharges of the above mortgages (account No. …92 and …56).
Pending transfer of the property to the wife, the wife must pay as they fall due in respect of the property:
(a)All mortgage payments;
(b)All rates and taxes;
(c)All household insurances.
In the event that the wife defaults in payment of any moneys due pursuant to Order 17(a) herein, for a period of two months from the date of the making of these orders, the parties will do all acts and sign all documents, instruments and writings necessary to sell the property for the best price reasonably obtainable.
Upon completion of the sale of the property the solicitors for the parties or either of them shall hold the proceeds of sale upon trust for the parties and pay the said proceeds in the following manner and priority:
(a)All legal costs, auction costs if any, agent’s commission and all other expenses connected with the sale of the property;
(b)Rate adjustments;
(c)To the NAB sufficient moneys to discharge the mortgages (account No. …92 and …56) secured on the property;
(d)The balance to be paid to the parties in the following shares:
(i)To the husband an amount representing 8.7% of the sale price of the property;
(ii)To the wife, the balance.
Pending completion of the sale of the property the wife must pay:
(a)All mortgage payments; and
(b)All rates and taxes; and
(c)All household insurances.
Pending completion of the sale of the property:
(a)Neither party shall cause or permit the amount of indebtedness, whether by way of mortgage, line of credit, overdraft or otherwise secured against the title of the property to increase;
(b)The wife must make a key available and permit inspection of the property by agents and prospective purchasers at all reasonable times and keep the property neat and tidy and in a state of good repair, having regard to its present condition.
In order to give effect to Order 21 it is further ordered:
(a)The wife and husband must forthwith list the property for sale with a real estate agent appointed by the wife and husband by agreement and failing agreement with a real estate agent nominated by the president of the Real Estate Institute of NSW or his or her nominee;
(b)The wife and husband must:
(i)Execute all documents requested by the agent for the sale of the property;
(ii)Execute the contract of sale;
(iii)Co-operate in every way with the agent in relation to the sale of the property;
(iv)Instruct the agent to give each of the parties such information as they, or either of them, may reasonably require concerning the progress made from time to time with respect to effecting the sale of the property;
(c)If binding unconditional contracts for the sale of the property have not been exchanged within four months after the making of the orders herein the wife and husband are to forthwith list the property for sale by public auction with an auctioneer appointed by agreement by the wife and husband and failing agreement, with an auctioneer nominated by the president of the Real Estate Institute of NSW or his or her nominee;
(d)The wife and husband must agree the reserve price for the property and in absence of an agreement, the reserve price will be in the sum nominated as a fair value thereof by a licensed valuer appointed by the president of the NSW Division of the Australian Property Institute at the request of either party;
(e)The parties must jointly pay the advertising and associated costs of the auctioneer;
(f)The wife and the husband are to either personally attend the auction or be available at the auction and in the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested persons and in the event that the wife and husband cannot agree as to the acceptance or rejection of a price less than the reserve price they will accept the advice of the auctioneer as to the acceptance or rejection of such price;
(g)In the event that the property is not sold at auction, the parties are to leave the property on the market for sale by private treaty for six months and at the expiry of that time the parties must arrange for a further auction of the property to be held forthwith and the provisions of these orders will apply mutatis mutandis in relation to such further action;
(h)Whenever a valuer is engaged for an opinion or valuation of the property under these orders then the valuer is to be treated by the parties as acting as an expert whose decision is binding upon the parties but who does not act as an arbitrator;
(i)The parties are to jointly pay any fees or charges incurred to any of the Real Estate Institute, the Australian Property Institute or to any valuer engaged in relation to the provisions herein relating to the sale of the property.
That the base amount of $120,000 be allocated, as required by s 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”) to the wife out of the interest held by the husband (member number …) in G Super Trust employer plan.
That in accordance with s 90XT(1)(1) of the Act whenever a splittable payment within the meaning of s 90XE of the Act becomes payable to or on behalf of the husband from his interest in the G Super Trust, the Trustee shall pay the wife the entitlement calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”) using the base amount and make a corresponding reduction in the entitlement the husband would have had but for these orders.
That Order 27 has effect from the operative time.
That the operative time is four business days after the date of service of these orders on the Trustee of the G Super Trust.
That this Order binds the Trustee of the G Super Trust.
Except as otherwise specified in these orders:
(a)Any interest of the husband in any property both real and personal, which is registered in the wife’s name or is in her current possession or control, including her superannuation entitlements, vests in the wife; and
(b)Any interest of the wife in any property both real and personal, which is registered in the husband’s name or is in his current possession or control, including his superannuation entitlements, vests in the husband; and
(c)Each party pay, and indemnify the other in respect of, any liability that may arise in relation to any item of property that vests in him or her pursuant to these orders.
In the event that either party refuses or neglects to sign, within 14 days after receipt of a written request to do so, any documents necessary to put into effect the terms of these orders, the registrar of the Newcastle Registry of the Family Court of Australia or such other person appointed by the Court is hereby appointed pursuant to s 106A of the Act to execute all such deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beason & Webber has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2401 of 2017
| Mr Beason |
Applicant
And
| Ms Webber |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These are competing applications for parenting orders in relation to one child, X, aged five years 10 months at the date of trial and for adjustment of interests in matrimonial property.
The parties met in 2000 and married two years later. They separated on 6 November 2016 but remained living together for one month. In December 2016, physical separation was effected by the applicant moving out of the former matrimonial home. The parties divorced in 2019.
The child currently lives with the mother and spends time with the father four nights per fortnight pursuant to current operative orders.
The Parties
The Applicant – Mr Beason (the father/husband)
The Applicant is currently aged 45 years). He is employed as a professional. He lives in Suburb H, a suburb of City T in New South Wales.
The Applicant is in a domestic relationship with Ms J, currently aged 41 years. Ms J has three daughters from a previous relationship aged 11, 13 and 19.
The Applicant’s household consists of himself, Ms J and her children.
The Applicant is hereinafter referred to as “the father” in relation to parenting and “the husband” in relation to property.
The Respondent – Ms Webber (the mother/wife)
The Respondent is currently aged 40 years. She is employed by the public service and works full-time. She lives in the former matrimonial home in a suburb of K Region in New South Wales.
She is engaged to Mr L.
The Respondent’s household consists of herself, the subject child and Mr L. The maternal grandmother and her partner live on the property, in a separate residence. So too does the maternal grandfather.
The Respondent is hereinafter referred to as “the mother” in relation to parenting and “the wife” in relation to property.
The Trial
The trial was listed for four days commencing 25 February 2020.
Both parents were represented by solicitors and all parties by counsel.
The trial concluded within the allocated time.
On the final day of trial, parenting orders were made with respect to residence with the mother and time with the father pending delivery of orders and reasons.
The Applications
The Independent Children’s Lawyer
The Independent Children’s Lawyer (“the ICL”) put forward a Minute of Order[1] after some discussions between all parties but prior to the evidence of the Applicant father commencing. Her proposal was that:
·The parents have equal shared parental responsibility;
·The child live with the mother;
·The child spend five nights each fortnight with the father during school terms and half school holidays.
[1] Annexure to Exhibit 1.
There were other specific orders, later fine-tuned[2] but the overall proposal thereafter remained unchanged.
[2] Exhibit 8.
The Applicant father/husband
By a Minute of Order in his Case Outline,[3] the father/husband proposed revised orders for both parenting and property:
[3] Exhibit 2, pages 2–9.
Parenting
·That the parties have equal shared parental responsibility for the child;
·Residence with the father;
·That the child spend time with the mother each fortnight from Wednesday after school until before school the following Monday (five nights), half term holidays and other special times;
·Half summer holidays to commence after the child turns nine years.
Property
·That the husband receive 60 per cent of the “net real property pool” [approximately $92,000];
·That the wife discharge the mortgages over the former matrimonial home at Suburb B and thereafter the husband transfer his interest in the property to her;
·Default sale of the property; net proceeds divided 60/40 in favour of the husband;
·Superannuation split to the wife of $120,000.
Change of position
After the conclusion of the evidence and before submissions, the father through his counsel conceded primary residence for the child with the mother.
A new Minute of Order was put forward[4] which was generally consistent with the orders proposed by the ICL.
[4] Exhibit 7.
The Respondent mother/wife
By her Fourth Amended Response filed 5 November 2019 the mother/wife proposed:
Parenting
·That the mother have sole parental responsibility;
·Residence with her;
·That the child spend time with the father each fortnight from Friday after school until before school the following Monday;
·Graduating holiday time and other special times.
Property
·Wife to retain the family home and discharge the mortgage;
·Superannuation split to the wife of $125,000.
Overall the wife proposed that she receive 60 per cent of the net asset pool.
The issues
Parenting
Does the presumption of equal shared parental responsibility apply and if it does is it nevertheless rebutted?
The presumption does apply and is not rebutted.
The mother has made decisions without talking to the father. However the father does not complain about the quality of the decisions made by the mother, other than perhaps the issue of the child having a flu shot, rather the denial of his input.
Will the interest of the child be best served by one parent alone making decisions for the long term welfare of the child?
The mother has been in the habit of making decisions about the child without prior discussion with the father and cutting him off when he asked questions. She directed the pre-school not to give the father information.
To her credit the mother conceded that she had done so and expressed regret.
The mother referred to her own tendency to react punitively when offended or upset, “I have to try not to be so reactive.”
If the child remains living with the mother should the amount of time she spends with the father increase from four nights per fortnight, or decrease from four nights to three?
There was no apparent reason for the mother to propose reducing the father’s time with the child from four days per fortnight to three. For two and a half years that arrangement had been in place and worked well, despite occasional difficulties at changeovers. The mother conceded as much during cross-examination. Likewise her proposal for blocks of holiday time being for a maximum of six days.
The mother agreed that her position was not based on safety concerns or inadequate care nor on any reservations about the father’s partner.
It seemed to be that the mother felt that the child had had a traumatic time after separation and the mother wanted to be protective.
I conclude that the child needs protection from hostility and point scoring between her parents and that an improved relationship between them would increase her level of happiness.
She does not however require to be protected from either parent.
Property
Were the contributions of the parties equal over the marriage?
The financial contributions of the husband during the course of the marriage were greater than that of the wife.
The non-financial contributions of the wife particularly to the care of the child outweighed those of the husband.
What adjustment if any should be made for the future needs of either party?
There should be an adjustment in favour of the wife. I accept that the business of the wife operates at a loss and that it is the choice of the wife to continue with the business. However the total arrangement delivers assistance for the mother and child. The maternal grandparents are present on the property. They provide love and care for the child and assistance to the mother when she is at work. The rent they pay is tax deductible.
The mother earns less than the father after factoring in his payment of child support.
Both parties propose a superannuation split and such an order will be made. The interests of the husband in future are likely to increase at a higher rate than those of the wife.
History of Relevant Events
The parties met in 2000 and married two years later. During that two year period the wife maintained a presence in the home of her mother but spent increasing amounts of time with the father.
In August 2001 the husband purchased M Street, Suburb N (“the Suburb N property”) for $138,000. The husband paid for this with no assistance from the wife. The husband states that throughout the relationship the wife did not contribute any money directly towards the property, for her stated reason that she was not on the title.
In December 2002 the husband was posted to the United States of America for his employment with the Australian Defence Forces. The parties moved there together and lived off the husband’s wage until the wife was successful at gaining employment a few months later.
In December 2004 the parties returned to Australia and resumed their previous employment.
In July 2006 the husband resigned from the Australian Defence Forces and received a payout equivalent to four months of salary. The husband cannot remember the exact payout figure, but he was being paid $77,000 per annum.
In December 2006 the parties purchased Horse no. 1, for $22,000.
In 2007 the husband sold shares for $50,000 and of which some moneys were used to pay down the loan on the purchase of Horse no. 1.
In 2008 the parties purchased Horse no. 2 for $5. In June 2009 the parties sold this horse for $3,000.
In May 2008 the parties purchased O Street, Suburb P (“Suburb P property”) for $335,000. The purchase was funded by the husband’s savings and a joint mortgage. The property was later tenanted and received income of $490 per week.
In July 2009 the Suburb N property was sold for $272,500. The proceeds of sale, totalling $72,000, were applied to the mortgage on the Suburb P property.
In 2010 the parties purchased F Street, Suburb B (“the former matrimonial home”) for $475,000 as tenants in common with unequal shares (99:01 percentage ratio favouring the wife).
The matrimonial home was renovated in 2011/2012 with both parties contributing. The husband made improvements to the property by way of landscaping over the following four years.
In 2013 the parties bought Horse no. 3 for $8,800.
In … 2014 the subject child was born. The wife stayed at home on a full-time basis. The wife started an online craft business which ceased operation in June 2017, generating little income.
In 2014 or 2015 the husband renovated the maternal grandmother’s caravan. He states this took three or four weekends, plus additional weekday nights. The caravan was later sold for a profit of $15,000. The husband was not provided with any financial compensation.
In 2015 the Suburb P property was renovated by both parties.
In October 2015 the Suburb P property was sold for $463,000. The proceeds of sale, totalling $82,000, were applied to the mortgage on the former matrimonial home.
In February 2016 the parties separated for a short period of time.
On 31 July 2016 the wife bought Horse no. 4 and Horse no. 5 for $10,450 on behalf of the maternal grandmother. Horse no. 4 was put into foal again, resulting in three horses. The wife states the purchase was placed in her name by accident, and the wife later corrected the ownership details to reflect that of the maternal grandmother. In December 2016, the wife sold Horse no. 4 for $4,000 and has retained such. This was done without the consent of the husband.
In September 2016 the wife commenced another business. Any income earned through this business was applied to the family and costs of the business. This business ceased its operation in October 2019, generating little income.
Breakdown of the Marriage
On 6 November 2016 the parties separated on a final basis and remained living under the one roof, with separate bedrooms.
Final Separation
In December 2016, physical separation was effected by the husband moving out of the former matrimonial home.
Post-Separation
Following the father leaving the former matrimonial home, the mother withheld the child from the father for one month as she feared the father would not return the child to her.
On 28 December 2016 an incident occurred where the father organised a property valuer to value the former matrimonial home. The property valuer subsequently attended the property. The mother did not know who the person was and asked for his removal from the property. As the mother went to ask the person to leave, the father blocked her way and did not let her leave the house. The mother states she felt “trapped and panicky”.[5] The mother also voice recorded verbal abuse from the father and the child being scared in response. As a result, the mother sought an Apprehended Violence Order (“AVO”) against the father. On 5 October 2017 the AVO was withdrawn and dismissed.
[5] Affidavit of Ms Webber filed 07/02/2020, para 118.
After December 2016 the father did not contribute to the mortgage payments of the former matrimonial home of $1,300 per fortnight. The mother was not in paid employment and could not meet the payments. The bank approved financial hardship for the mother. The mortgage was $5,800 in arrears.
In January 2017 irregular time commenced between the child and the father.
Also at that time the maternal grandmother and her partner, Mr Q, moved onto the property of the former matrimonial home to assist the mother financially. The maternal grandmother and Mr Q paid, and each continues to pay, $100 per week rent.
On 22 March 2017 the parties attended mediation and agreed the child would live with the mother and spend each alternate weekend and each intervening Thursday with the father.
In April 2017 the mother secured employment and commenced paying the mortgage.
Allegations of Sexual Abuse by Mr Q
On 20 July 2017 the father withheld the child from the mother, following disclosures from the child of sexual harm by the maternal grandmother’s partner, Mr Q.
On 20 July 2017 the child disclosed to the father that “Pop” [Mr Q] touches the child’s bottom while she is urinating. The father recorded a conversation with the child and asked the child where Mr Q touches her.
On 22 July 2017 the father reported his concerns to the Department of Communities and Justice (“DCJ”). On this day, the child further disclosed to the father that Mr Q takes his clothes off in front her.
On 23 July 2017 the father took the child to the E Police Station and the child was interviewed. No disclosures were made.
On 24 July 2017 the father returned the child to the mother. The mother withheld the child from the father.
It was the mother’s belief that the father had been coaching the child and subsequently causing her psychological harm. The family consultant notes that it is unlikely this occurred.[6]
[6] Family Report dated 14/02/2019, para 188.
The maternal grandmother states that Mr Q has only been alone with the child on two occasions. She states Mr Q ‘shakes’ the child after the child urinates so he does not have to wipe her. The maternal grandmother also provided evidence that when the child says Mr Q lifts up his shirt for the magic word, it has to do with a visible hernia on his stomach.
The family consultant notes the child has made no further disclosures regarding sexual abuse by Mr Q and reports that sexual abuse is unlikely to have occurred.[7]
[7] Family Report dated 14/02/2019, para 188.
On 24 July 2017 the mother made an undertaking to not allow the child to have any contact with Mr Q.
The allegations of sexual abuse by Mr Q are not substantiated.
Proceedings commence in the Family Court of Australia
On 11 August 2017 the father initiated proceedings in this Court for parenting and property orders. The father has filed a further three Amended Initiating Applications. The father also filed a Notice of Risk alleging sexual harm by Mr Q.
On 14 September 2017 the mother provided a Response. The mother has filed a further four Amended Responses. On 19 September 2017 the mother filed a Notice of Risk alleging the father had caused psychological harm to the child and the child was exposed to family violence perpetrated by the father towards the mother.
Interim Parenting Orders – 21 September 2017
On 21 September 2017 interim consent orders were made in this Court which provided for the child to live with the mother and spend time with the father for four nights a fortnight. Time has been occurring in accordance with these orders.
Interim Property Orders – 14 May 2018
On 14 May 2018 interim consent orders for property division were made which provided for the wife to transfer the boat ($16,000) to the husband and the husband to transfer to the wife the Motor vehicle ($21,000) and a lawn mower ($7,500).
In August 2018 the wife sold Horse no. 3 for $36,900 and retained the proceeds of sale. The wife attributed the funds as follows:
·To Mr L for his work on the former matrimonial home - $9,800;
·To the maternal grandmother for her assistance with the former matrimonial home - $4,800;
·To the maternal grandfather for repayment of a loan - $25,000.
On October 2018 the wife carried out work on the former matrimonial home by installing solar panels, a split system air conditioner, created new paddocks on the property, installed TV antenna, flyscreens and a door to the garage and converted it into a studio with a bathroom. These improvements are yet to be approved by council as the father refuses to sign the application.
In total, since separation, the wife has paid the following for the former matrimonial home:
·Council rates - $5,954;
·Mortgage Repayments - $93,387.
Allegations of Sexual Abuse by the father
In late 2018 the child allegedly told the mother that what she did with the father “is a secret”. The child at this time also asked the mother to tickle her vagina, refused to take her undies off to bathe and told her the father wiped her vagina after the toilet.[8]
[8] Affidavit of Ms Webber filed 7/02/2020, para 42.
The father denies all allegations of abuse by him.
The family consultant reports that the mother’s allegation of sexual abuse related to self-exploratory masturbation which is normal for a child of the child’s age.[9]
[9]Family Report dated 14/02/2019, para 189.
The family consultant also reported a strong, warm and positive interaction between the father and the child in observation.
The mother revealed to the family consultant that she was sexually abused by the brother-in-law of her mother’s partner when she was three or four years old. The family consultant reports:
The mother has her own history of sexual abuse and the Family Consultant is of the view that this history of untreated sexual abuse combines combined with the high conflict and lack of trust between the parents, accentuates the mother’s hypersensitivity to normal sexual behaviour in a child and increases her level of concern.[10]
[10] Family Report dated 14/02/2019, para 192.
The family consultant reported that the mother is focusing on her perception of the child’s needs based upon her own experiences. She states that it is hoped the mother will have the mental flexibility to challenge her own beliefs.
The mother appears to have done this, considering her new position, outlined in her trial affidavit, that the father has not sexually abused the child:
I accepted I was wrong and that there were most likely other things making me overact.[11]
[11] Affidavit of Ms Webber filed 7/02/2020, paras 42.1 & 42.2.
On 11 March 2019 the wife purchased Horse no. 6, for $1,800
On 23 March 2019 the wife purchased Horse no. 7, for $1,500.
On 30 September 2019 the mother instructed her solicitors to write to the father offering graduated orders for the child to have a shared care arrangement in school holidays as recommended by the family consultant. The child spent five nights with the father in accordance with this.
The mother later withdrew from this arrangement.
In November 2019 the wife’s partner bought the wife’s Horse no. 1 for $25,000.
Interim Parenting Orders – 29 November 2019
On 24 October 2019 the father filed an Application in a Case seeking block time with the child in the school holidays until the hearing date.
On 29 November 2019 interim orders were made in this Court which provided for the child to spend three periods of block time with the father over the Christmas school holidays for a seven night, five night, and six night period. Time was spent in accordance with these orders.
Evidence
The documents relied on in respect of the application were as follows:
The Applicant Husband
(a)Further Second Amended Initiating Application filed 30/08/2019 superseded by Minute of Orders 24/02/2020;
(b)Affidavit of Mr Beason filed 4/02/2020;
(c)Affidavit of Ms J filed 4/02/2020;
(d)Financial Statement filed 4/02/2020;
The Respondent Wife
(e)Fourth Amended Response filed 5/11/2019;
(f)Affidavit of Ms Webber filed 7/02/2020;
(g)Affidavit of Ms R filed 7/02/2020;
(h)Affidavit of Mr L filed 7/02/2020;
(i)Financial Statement filed 10/02/2020;
Reports
(j)Family Report dated 14/02/2019;
(k)Children and Parents Issues Assessment dated 5/12/2017.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Parental Responsibility
I consider that the presumption of equal shared parental responsibility applies. There are no reasonable grounds to believe that either parent or any other person has engaged in abuse of the child or family violence.
Further, there is no evidence that would satisfy this Court that it would not be in the best interest of this child for her parents to share equally in the exercise of parental responsibility.
The mother on a few occasions has made decisions unilaterally, for instance about the child consulting a psychologist and being enrolled in a particular activity; dancing. More recently there has been consultation between the parents where the mother has agreed to a course of action proposed by the father.
The signs for future co-operation are there. However I am satisfied that making orders which require the parties to maintain the status quo in certain areas e.g. enrolment at school; attendance on a particular medical practice, unless there is the prior written consent to change by the other party, will avoid prolonged negotiations over decisions.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
Fortunately for the subject child the benefit of her maintaining her undoubtedly meaningful relationships with each of her parents is not affected to any extent by the need for protective orders.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child was almost five years when interviewed by the family consultant. She had just started in Kindergarten.
She volunteered the statement “I don’t spend time with Dad, Mummy doesn’t let me”.[12] However at that time each of the parents were stressed and concerned about the risk of sexual harm for the child in the other household. They have each come to terms with their fears and no longer hold them.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
[12] Family Report dated 14/02/2019, para 134.
Observations of the child were positive in all of her relationships with the members of each household; the mother’s partner and three maternal grandparents in one; the father’s partner and her three daughters in the other.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
These are both devoted parents. The submission of the counsel for the father was “they both think the world of their daughter and want the best for her”. That accords with my impression.
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 parents work full-time. The father pays child support as assessed of $313 per week.
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
The orders made provide for a change in the pattern of time for the child with the father.
For two and half years she has spent alternate weekends and overnight each Thursday with her father.
There is a 35-45 minute drive between the school which the child attends and the father’s home. Some concern about that travel was expressed by the family consultant and submitted on behalf of the mother.
It is a longish trip for a young child but a comfortable one in her father’s car with the benefit of his attention and conversation during the drive.
Of greater significance is the benefit to the child of her father being in contact with her school, assisting with reading and homework and recognising the need for bedtime, school uniforms and packed lunches.
I also consider that one block of five nights rather than three nights and one weekday night makes time predictable with fewer household changeovers.
The practical difficulty and expense of a child spending time with and communicating with a parent
The opinion of the family consultant is that communication with the other parent at a known time will be reassuring and enjoyable for the child. Her suggestion was on Thursday for the child with the mother during five days with father, and twice for the child with the father during nine days with the mother.
I accept that opinion. There is a benefit to the child in keeping contact with the other parent in this way, just to hear the voice of that parent and learn any interesting news in that household.
There has been some tension between the parents over telephone calls/FaceTime with the mother telling the child she can hang up if she wants to and the father wishing to maximise his time.
The child is old enough to be given privacy for her calls. Each parent should also be sensitive to allowing the child both to talk and to withdraw from talking. The father may wish to consider deliberately keeping some calls short and telling the child in advance that he will be doing so. The mother may wish to consider letting calls run on sometimes unless there is a compelling reason not to.
Orders are made for a Thursday early evening call for the mother and on Thursday and Monday for the father.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
I accept the opinion of the family consultant that the capacity to meet the needs of the child are more than good enough for both parents. Further, that rigidity, hyper-sensitivity [mother] and fear of losing contact [father] arose from past allegations of abuse.
Any family violence involving the child or a member of the child’s family, and 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
The mother alleged the father perpetrated family violence throughout the relationship.[13] The evidence does not support such a finding.
[13] Notice of Risk filed 19/09/2017.
The father denies that he ever threatened the mother with violence or assaulted her. The mother does not allege he did.
Both parties acknowledge verbal arguments occurred.
The family consultant noted the mother had reported ongoing daily abuse by the father, however assessed the text messages from the father as “appearing polite”.[14]
[14] Family Report dated 14/02/2019, para 193.
It seems likely that post-separation the mother wanted to be left alone with the child and found the father intrusive. The making of interim orders by consent had some positive impact by creating a new pattern for the child and both parents.[15]
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
[15] Interim Orders dated 21/09/2017.
The parties have been compliant with orders and will very likely continue to be.
The orders provide for substantial holiday time.
The remaining major decision will be high school for the child commencing in 2026. By then both parents will likely be starting to understand that their child will be looking for constructive and enjoyable time away from both of them with school friends and in activities. If they have been working together as parents, the path to independence (at age 18) will be a successful one.
Approach to alteration of interests in property
In considering applications for alteration of property interests and transfer of property the Court must:
(i)Identify the existing legal and equitable interests of the parties in property;[16]
(ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;
(iii)
If an alteration should be made, to consider the matters contained in
ss 79(4) and 75(2) of the Act in coming to an adjustment; and
(iv)Analyse and consider whether the adjustment under consideration would be just and equitable.
[16] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FLC 93-545.
(i) Identify the assets and liabilities of the parties
The parties’ assets are set out in the joint balance sheet:[17]
[17] Exhibit 5.
| Ownership | Description | Applicants value | Respondents value | ||
| ASSETS | |||||
| 1. | J | F Street, Suburb B | $ 625,000 | $ 625,000 | |
| 2. | H | Company A shares | $ 3,180 | $ 3,180 | |
| 3. | W | A horse float | $ 5,000 | $ 5,000 | |
| 4. | W | Horse no. 9 | $ 10,000 | $ 10,000 | |
| 5. | W | Horse tack | $ 5,000 | $ 1,000 | |
| 6. | $ | $ | |||
| 7. | W | Tools and equipment | $ 5,000 | $ 100 | |
| 8. | W | A tractor | $ 22,500 | $ 12,000 | |
| 9. | W | Horses – Horse no. 8, Horse no. 7 & Horse no. 6 | $ 5,300 | $ 5,300 | |
| 10. | H | Boat & trailer | $ 16,000 | $ 16,000 | |
| 11. | W | Motor Vehicle | $ 21,000 | $ 15,030 | |
| 12. | W | Horse no. 1 | $ 25,000 | $ 0 | |
| 13. | H | Motor Vehicle 2 | $ 58,000 | $ 58,000 | |
| 14. | H | Savings | $ 3,487 | $ 3,487 | |
| 15. | H | Household goods | $ 4,000 | $ 4,000 | |
| 16. | W | Wife’s savings | $ 6,372 | $ 3,408 | |
| 17. | |||||
| Total | $ 814,839 | $ 761,505 | |||
| ADDBACKS | |||||
| 18. | $ | $ | |||
| 19. | W | Proceeds of sale – Horse no. 1 & equipment – expended on legal fees | $ 37,144 | $ $37,144 | |
| 20. | W | Balance of proceeds of sale of Horse no. 1 | $ 13,856 | $ 0 | |
| 21. | W | Proceeds of sale from Horse no. 3 | $ 39,600 | $ 0 | |
| 22. | W | Proceeds of sale from Horse no. 4 | $ 4,000 | $ 0 | |
| 23. | H | Proceeds of sale of Motor Vehicle 5 applied to legal fees | $ 8,643 | $ 8,643 | |
| 24. | W | Half share of valuation costs borne by husband | $ 550 | $ 0 | |
| 25. | H | Sale of shares, applied to legal fees | $ 11,711 | $ 11,711 | |
| 26. | |||||
| 27. | |||||
| 28. | |||||
| Total | $ 115,504 | $ 57,498 | |||
| LIABILITIES | |||||
| 29. | J | NAB Fixed Loan *…92 | $ 362,770 | $ 362,770 | |
| 30. | J | NAB Variable Loan *…56 | $ 107,710 | $ 107,710 | |
| 31. | W | Loan – Y Loan | $ 8,800 | $ 8,800 | |
| 32. | H | Car Loan | $ 64,000 | $ 64,000 | |
| 33. | H | ANZ Visa | $ 25,086 | $ 25,086 | |
| 34. | H | W Bank | $ 24,715 | $ 24,715 | |
| 35. | H | Z Credit Card | $ 5,164 | $ 5,164 | |
| 36. | W | Dental Loan | $ 4,166 | $ 4,166 | |
| Total | $ 602,411 | $ 602,411 | |||
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Applicants value | Respondents value | |
| 37. | H | G Superannuation | Accumulation | $ 251,231 | $ 251,231 |
| 38. | H | Military Super | Defined Benefit | $ 259,287 | $ 259,287 |
| 39. | W | PSSAP | Accumulation | $ 158,975 | $ 158,975 |
| Total | $ 669,493 | $ 669,493 | |||
| FINANCIAL RESOURCES NIL | |||||
Notes
| Item No | |
| 5 | The tack has not been valued. The existing tack was acquired post separation by the wife and is made up of cheap second hand gear such as riding boots, helmets, and saddles. Wife estimates $1,000. Admission against interest on behalf of the wife. |
| 7 | The items have not been valued. They are old tools in poor condition. Admission against interest on behalf of the wife. The husband’s value should be disregarded. |
| 8 | The husband’s figure is irelevant. The item was purchased post separation by Mr L for $22,500. The wife sold her mower (received in the partial property settlement) and contributed $7,000 and later $5,000 towards the purchase of the tractor (Wife’s Affidavit 300 – 305). |
| 11 | The Motor Vehicle 1 was transferred to the wife as part of a partial property settlement in May 2018 with an agreed value of $21,000. The current redbook value of the Motor Vehicle 1 is $15,030. |
| 12 | The horse was purchased by Mr L, post separation. |
| 19 | The Horse no. 1 was sold and $37,144 was applied to paying the legal fees of the wife. |
| 20 | The remaining proceeds were distributed to the wife’s father. Dealt with in wife’s affidavit, 277-280. |
| 21 | The father contends that the full value of the sale of Horse no. 3 by the wife should be added back. The wife asserts these funds were applied as set out in her affidavit, 281 – 287. |
| 22 | It is agreed that this horse was sold. It is the husband’s position that the wife owned the asset. It is the wife’s position that this asset was owned by her mother and was not property of the parties. |
| 24 | The husband contends there was an agreement for the wife to reinburse him for the valuation. The wife does not recall this. |
| 31 | This debt was incurred post separation by the wife for her benefit in reducing her electricity costs. The wife seeks that it be included as funds were attributed to improvements to the property. |
END OF BALANCE SHEET
Revision of Balance Sheet
Numerous items were not agreed as to value being 5, 7, 8, 11, 12 and 16 with little or no evidence as to disparity.
There was a dispute over addbacks. Funds expended on legal fees have been added back (Items 19, 23 and 25). Other items were funds reasonably expended.
Of the liabilities, items 33 and 34 have been excluded as spending on legal costs post-separation.
The Revised Balance Sheet is as follows:
| Ownership | Description | Value | |||
| ASSETS | |||||
| 1. | J | F Street, Suburb B | $ 625,000 | ||
| 2. | H | Company A shares | $ 3,180 | ||
| 3. | W | A horse float | $ 5,000 | ||
| 4. | W | Horse no. 9 | $ 10,000 | ||
| 5. | W | Horse tack | $ 1,000 | Wife’s value accepted | |
| 6. | Omitted | $ | |||
| 7. | W | Tools and equipment | $ 100 | Wife’s value accepted | |
| 8. | W | A tractor | $ 12,000 | Tractor partially funded by third party, wife’s valuation accepted | |
| 9. | W | Horses – Horse no. 8, Horse no. 7 & Horse no. 6 | $ 5,300 | ||
| 10. | H | Boat & trailer | $ 16,000 | ||
| 11. | W | Motor vehicle | $ 15,030 | Redbook value accepted | |
| 12. | W | Horse no. 1 | $ 25,000 | Asset of the wife acquired as a gift | |
| 13. | H | Motor Vehicle 2 | $ 58,000 | ||
| 14. | H | Savings | $ 3,487 | ||
| 15. | H | Household goods | $ 4,000 | ||
| 16. | W | Wife’s savings | $ 3,408 | Wife’s value accepted | |
| 17. | |||||
| Total | $ 786,505 | ||||
| ADDBACKS | |||||
| 18. | $ | ||||
| 19. | W | Proceeds of sale – Horse no. 1 & equipment – | $ 37,144 | Used for legal fees | |
| 20. | W | ||||
| 21. | W | ||||
| 22. | W | ||||
| 23. | H | Proceeds of sale of Motor Vehicle 5 applied to legal fees | $ 8,643 | “ | |
| 24. | W | ||||
| 25. | H | Sale of shares, applied to legal fees | $ 11,711 | “ | |
| 26. | |||||
| 27. | |||||
| 28. | |||||
| Total | $ 57,498 | ||||
| LIABILITIES | |||||
| 29. | J | NAB Fixed Loan *…92 | $ 362,770 | ||
| 30. | J | NAB Variable Loan *…56 | $ 107,710 | ||
| 31. | W | Loan – Y Loan | $ 8,800 | ||
| 32. | H | Car Loan | $ 64,000 | ||
| 33. | |||||
| 34. | |||||
| 35. | H | Z Credit Card | $ 5,164 | ||
| 36. | W | Dental Loan | $ 4,166 | ||
| Total | $ 552,610 | ||||
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Applicants value | Respondents value | |
| 37. | H | G Superannuation | Accumulation | $ 251,231 | $ 251,231 |
| 38. | H | Military Super | Defined Benefit | $ 259,287 | $ 259,287 |
| 39. | W | PSSAP | Accumulation | $ 158,975 | $ 158,975 |
| Total | $ 669,493 | $ 669,493 | |||
Assets
General Assets $786,505
Addbacks $57,498
Superannuation $669,493
Total $1,513,496
Liabilities $552,610
Total Net Assets$960,886
(ii) Would it be just and equitable to make an adjustment to interests in property?
The parties hold the title to the former matrimonial home as tenants in common in unequal shares.
There is agreement that the wife retain the home if she can afford to do so.
Both parties propose a split of superannuation interests in favour of the wife.
An adjustment of interests is required.
(iii) Consideration of ss 79(4) and 75(2) of the Act in order to come to a just and equitable adjustment
Contributions under section 79(4)
The parties began living together in August 2001. They moved into the property purchased by the husband in Suburb N. Through a Purchase Assistance Scheme and First Homeowners Grant, the husband had $30,000 to apply to the purchase. He borrowed the balance of $100,000.
At that time the husband was 27 years of age. He was employed earning $70,000 per annum. He had the Suburb N property with equity of about $34,000, Motor Vehicle 3, furniture and household appliances and military superannuation.
The wife was 22 years of age. She had Motor Vehicle 4, a horse float and tack, two horses, jewellery and some superannuation.
The husband is assessed as having been in a stronger financial position at the beginning.
The parties lived and worked overseas as a result of the husband’s employment. The wife did give up her job to travel with the husband. She found work which suited her in the USA earning around US $45,000 per annum. The husband earned about $80,000 per annum. The subsidised living arrangements made by the husband’s employer were agreeable to both parties. They also allowed the husband to use discretionary income to buy shares.
The wife found work again when the parties returned to Australia in 2004. They again lived in subsidised Defence Force housing. Both were in full-time employment, in a similar ratio.
At the end of 2006 the husband left the Australian Defence Forces and enrolled in a Masters’ Degree at S University. He studied for 18 months supporting himself from the sale of shares.
The financial position of the parties allowed for the purchase of an investment property.
In 2008 the wife was made redundant. The husband sold the Suburb N property.
In late 2010 the parties bought, for $470,000, the Suburb B property which they had been renting for two years. It became the family home.
The wife became increasingly involved with work around horses at considerable cost. Satisfying but not particularly profitable.
In mid-2013 the wife became pregnant with the subject child who was born in 2014.
For the 12 or 13 years of the marriage to that point both parties had worked hard and made financial and non-financial contributions, the husband’s income at all times substantially higher.
Thereafter for the two and a half years before separation in November 2016 and the three years since, the wife has made a greater contribution to the welfare of the family by her majority care of the parties’ child.
The wife has had the benefit of continuing to live in the family home. She has also had the sole responsibility for meeting the mortgage payments.
Conclusion
Overall the financial contributions favour the husband from the initial contribution of the Suburb N property as the parties first home to his greater income throughout.
The contribution of the wife to the child requires acknowledgment.
Overall the contributions to date of trial favour the husband 55/45 per cent.
Relevant factors under section 75(2)
The age and state of health of each of the parties
The husband is 45, the wife is 40. They are both in good general health. There was no medical evidence to suggest otherwise.
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
Both parties are in full-time work.
The wife has also run a business, at a loss. She does so out of love and affection for horses. The loss delivers a benefit in respect of her taxable income.
Further because members of the wife’s family live on the property and pay rent she is able to claim as deductions, mortgage and utility costs.
The wife discloses a salary of $65,000 per annum from her employment. She receives rental income of $15,600 from family members and child support of $16,276. This totals $96,876. About $30,000 - $35,000 in income is taxable in her hands after deductions. Tax is modest. The wife is therefore left, with a net total income stream of $90,000 per annum.
The husband discloses income of $4,135 per week, less tax of $1,427, which totals $2,708. This totals $140,816 per annum. From this amount, he pays child support of $16,276, leaving a net total of $124,540 per annum.
There is a disparity of income in real terms between the parties. The wife earns and receives the equivalent of 72 percent of the income which is earned by the husband.
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
Both parties have the care and control of their almost six year old daughter.
Commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain
The husband’s partner is in full-time employment as an educator. The household provides a home for her three children.
Subject to s 75(2)(3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
Each party has superannuation interests. The husband has two funds with a total of $510,518. The wife has one fund with $158,957.
Being in their early and mid-forties, the parties will not have access to their superannuation for 20-25 years.
It is most likely that the level of contribution on behalf of the husband will lead to increasing disproportion in the parties’ interests.
Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
Each party retains a reasonable standard of living.
The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The parties lived together for about 14-15 years.
The marriage did not have a detrimental effect on the working lives and earning capacity of either party.
The need to protect a party who wishes to continue that party's role as a parent
Both parties are strongly committed to adjusting their work commitments and home lives to fit their role as parents.
If either party is cohabiting with another person - the financial circumstances relating to the cohabitation
The Husband
The husband has been living with his partner of three years, Ms J, and her three children, since 2019.
Ms J is employed as an educator earning about $105,000 per annum. As a result of illness and hospitalisation in 2019, Ms J took leave without pay. She resumed full-time work on a permanent basis in 2020.
The husband and his partner keep separate bank accounts and each pay their share of relationship costs.
The Wife
The wife began living with her new partner, Mr L, in early 2020.
Mr L is employed as a technician for a construction company. He earns about $100,000 per annum.
Mr L also assists the mother with maintenance and fencing on her property and with looking after the horses.
I conclude that the parties are each in comparable and fortunate positions with respect to their current partners.
Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The husband pays child support as assessed at $313 per week. That assessment may vary with the increase of term and holiday time provided for in the orders
Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
The maternal grandfather has lent the mother a total of $67,200 in order to meet her financial commitments. The wife has paid the maternal grandfather back all that is owing.
Conclusion
There should be an adjustment in favour of the wife to equality of assets with the husband. This will reflect the disparity of income of the parties and the present and likely continuing disparity in superannuation interests.
To achieve an adjustment to equality an order will be made to effect a superannuation split in favour of the wife. Both parties proposed such a split. I have chosen the number put forward by the husband of $120,000. The husband acknowledged, by proposing the split, that the wife will carry the debt which allows her to retain the family home but pressed for some cash in hand. The wife proposed $125,000 for the split. A small difference overall.
To the wife, superannuation of $120,000.
To the husband, cash payment of $54,068.
Accordingly the net assets, after those adjustments, will amount to $480,443 for each party.
The husband shall retain:
Assets Item No.
$
2
Company A shares
3,180
10
Boat and trailer
16,000
13
Motor vehicle 1
58,000
14
Savings
3,487
15
Household goods
4,000
23
Proceeds of sale of Motor Vehicle 5
8,643
25
Sale of shares
11,711
Total
105,021
Plus Superannuation 37
G Super
251,231
38
Military Super
259,287
Total
510,518
TOTAL ASSETS
615,539
Less Liabilities 32 Car loan 64,000 35 Z Credit Card 5,164 Total 69,164
Husband’s assets 615,539 Less husband’s liabilities 69,164 TOTAL NET ASSETS
Less Super Split to wife
Plus payment from wife
TOTAL
546,375
120,000
426,375
54,068
480,443
The wife shall retain:
Assets Item No.
$
1
F Street, Suburb B
625,000
3
Horse float
5,000
4
Horse no. 9
10,000
5
Horse tack
1,000
7
Tools and equipment
100
8
A tractor
12,000
9
Horses
5,300
11
Motor Vehicle 1
15,030
12
Horse no. 1
25,000
16
Wife’s savings
3,408
19
Part proceeds of (first) sale of Horse no. 1
37,144
Total
738,982
Plus Superannuation 39
PSSAP
158,975
TOTAL ASSETS
897,957
Less Liabilities 29
NAB Fixed Loan *…92
362,770
30
NAB Variable Loan *…56
107,710
31
Y Loan
8,800
36
Dental loan
4,166
Total
TOTAL NET ASSETS
483,446
Wife’s assets 897,957 Less wife’s liabilities 483,446 TOTAL NET ASSETS
Plus Super Split:
Less payment to Husband
TOTAL
414,511
120,000
534,511
54,068
480,443
4. Analysis of whether the adjustment contemplated is just and equitable
The husband will have no real estate, the sum of $54,068, some items of personalty and substantial superannuation ($390,518) despite the split. He will have some personal debt to pay and the balance of his legal costs.
The wife will have the former matrimonial home with substantial debt and about 25 per cent equity. She will have the obligation to pay to the husband the sum of $54,068 (or the equivalent amount if the property is sold). She will have enhanced superannuation ($278,975). She will have some personal debt to pay including the balance of legal costs.
I am satisfied that the adjustment contemplated reflects the contributions and future needs of the parties.
Orders are made accordingly.
I certify that the preceding one hundred and ninety seven (197) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 28 April 2020.
Associate:
Date: 28 April 2020
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Family Law
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