Bertram and Bertram
[2016] FamCA 383
•20 May 2016
FAMILY COURT OF AUSTRALIA
| BERTRAM & BERTRAM | [2016] FamCA 383 |
| FAMILY LAW – CHILDREN – final orders – where the parties live in different states – where significant weight is given to the wishes of the children – where it is ordered that the parties have shared parental responsibility but that the father have sole parental responsibility for matters relating to health and education affecting one child – where it is ordered that the children live with the father and spend time with the mother at such times to be agreed between the parties. |
FAMILY LAW – PROPERTY – final orders – where the husband seeks orders by way of property settlement – where the wife opposes the sale of one property – where consideration is given to contributions – where the wife is required to pay the husband a settlement sum – where various ancillary orders are made by way of property settlement.
| Family Law Act 1975 (Cth) s 4, 60CA, 60B, 60CC, 65DAA, 75, 79 |
| Beckham & Desprez [2015] FamCAFC 247 Blanding & Blanding [2016] FamCAFC 21 Karen & Rita (1995) FLC 92-632 Pierce & Pierce (1999) FLC 92-844 Scott & Scott [2006] FamCA 1379 Stanford v Stanford (2012) 247 CLR 108 Waters & Jurek (1995) FLC 92-635 |
| APPLICANT: | Mr Bertram |
| RESPONDENT: | Ms Bertram |
| FILE NUMBER: | ADC | 2917 | of | 2015 |
| DATE DELIVERED: | 20 May 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 29 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dickson |
| SOLICITOR FOR THE APPLICANT: | Ouwens Lawyers |
| COUNSEL FOR THE RESPONDENT: | Litigant in Person by telephone |
| SOLICITOR FOR THE RESPONDENT: |
Orders
The parties have shared parental responsibility for C born … 2004 (“C”) and equal shared parental responsibility for B born … 2002 (“B”).
That the husband have sole parental responsibility in respect of matters relating to the education and health affecting C.
That in respect of education and health issues affecting C, the husband will advise the wife in writing (electronically or otherwise) and provide his views about any major issues affecting the child’s education and health and shall consult with the wife about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties THEN the husband shall make the final decision and advise the wife in writing (electronically or otherwise) of that decision.
That C and B shall live with the husband.
That B shall spend time with the wife on such dates and times as may be agreed between the parties but in any event in accordance with the child’s wishes.
That C shall spend time with the wife on such dates and times as may be agreed between the parties.
That the husband be at liberty to renew the Australian passports for the said children at his sole expense and to sign all documents necessary to secure the passports for the said children.
That the requirements for the wife’s signature and consent for the said children’s passports shall be dispensed with.
That by way of settlement of property:-
(a)That within ninety (90) days of this order the wife do pay to the husband the settlement sum of FOUR HUNDRED AND TWENTY FIVE THOUSAND ONE HUNDRED AND FIFTY DOLLARS ($425,150).
(b)That contemporaneously with the payment of the said settlement sum the husband do all things necessary and sign all such documents as may be required to transfer his estate, title and interest in the property situate at E Street, Suburb F in the state of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio ....
(c)That the wife do forthwith do all things necessary and sign all such documents as may be required to transfer her estate, title and interest in the property at G Street, Suburb D being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … to the husband and upon transfer the wife shall have no right or interest in the said property.
(d)That contemporaneously with the transfer of the wife’s interest in the Suburb D property, the husband will do all things necessary to indemnify the wife in respect of any mortgage or other liability related to the said property AND will refinance, discharge the current finance or in any event obtain written confirmation that the wife has no further liability in respect of the said property.
(e)That the husband do retain as his sole property the following assets free from all claim and demand by the wife:-
(i)his superannuation;
(ii)his prestige motor vehicle;
(iii)his shares, investments and savings and interest in any life insurance policy;
(iv)furniture and personal effects in his possession;
(v)the Mr Bertram Family Trust.
(f)That the wife do retain as her sole property the following assets free from all claim and demand by the husband:-
(i)her superannuation entitlement with Super SA, Northern Territory Government and Public Authority Superannuation Scheme, AMP and Super SA Triple S Scheme;
(ii)her shares, investments, savings and interest in any life insurance policy.
(iii)her motor vehicle;
(iv)the porta-loo, caravan and exercise gym equipment;
(v)furniture and personal belongings;
(vi)the property situate at H Street, I Town being the whole of the land comprised and described in Certificate of Title Register Book … Folio ...
(g)That pending final settlement, the husband do continue to meet all mortgage instalments to the Commonwealth Bank of Australia as and when they fall due being mortgage number … and mortgage number ....
(h)That each party shall keep the other indemnified in relation to actions, claims, proceedings and demands howsoever arising in relation to any debts and liabilities incurred in their respective names.
(i)That the husband shall have authority and be at liberty to execute all documents necessary to close all joint bank accounts including but not limited to credit card accounts and various joint accounts.
(j)That should the wife default in the payment of the settlement sum to the husband either in whole or in part and should such default continue for thirty (30) days THEN the parties will do all things necessary to cause the Suburb F property to be placed on the market for sale by public auction or private treaty upon such terms and conditions as the parties may agree or in default of agreement as may be made by this Honourable Court and from the net proceeds of sale following the payment out of the costs properly incurred in the marketing and sale of the property the husband shall receive so much of the settlement sum as shall remain outstanding together with default interest at the rate of 10 per cent per annum, with the wife to receive the balance if any.
(k)That if either party fails, neglects or refuses to sign any document necessary to give effect to the terms of these orders THEN a Registrar of this Honourable Court upon proof by affidavit of such failure, neglect or refusal is hereby authorised to sign any document necessary to give effect to the terms of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bertram & Bertram has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2917 of 2015
| Mr Bertram |
Applicant
And
| Ms Bertram |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Initiating Application filed 5 April 2016, Mr Bertram (“the husband”) seeks orders against Ms Bertram (“the wife”) for settlement of property and parenting orders in relation to C born in 2004 (“C”) and B born in 2002 (“B”) (collectively “the children”).
The proceedings came before me on 20 August 2015 in respect of interim issues. The parties were represented, although it was noted that the solicitor who appeared for the wife clearly had limited instructions and there was the first sign that her continued representation of the wife may be problematic.
Orders were made on 21 August 2015 that required the wife to deliver up B and C to the husband and imposed orders by restraint on each of the parties requiring them to keep their distance from the other and to ensure that the children remained in the care of the husband, continued to attend J School and were not removed from the metropolitan area of Adelaide.
On 11 September 2015 orders were made that effectively continued the previous orders, but gave leave to the wife’s solicitor to withdraw from the file. Service of documents and process was deemed to be served on the wife by forwarding the documents to her via her email address as set out in the order.
The husband made application that the matter be listed as an undefended hearing on the basis that the wife had not complied with Court orders for the filing of a response, affidavit in support of any orders sought and a financial statement.
The proceeding were listed on 23 October 2015. At that hearing a solicitor attended for the wife, but indicated to the Court that she did not have sufficient instructions that would enable her to file a Notice of Address for Service. Her appearance should be seen as a courtesy to the Court.
Consistent with the difficulties encountered by the wife’s former solicitors, the inability of the solicitors to have appropriate communication with the wife was a continuing theme.
Ultimately I determined that I would not hear the matter on an undefended basis on that occasion, but that it was appropriate to give the wife a further opportunity to consider her position and to engage in the proceedings. My reasons were settled and delivered on 23 October 2015.
On 18 December 2015 there was no appearance by the wife, her solicitor or counsel and accordingly I made orders that the matter proceed on an undefended basis. Trial direction orders were made and a copy of the order was send to the wife at her email address.
As at the date of hearing, the Court file reflects that the wife had not filed any answering documents, nor did she seek to formally participate in the proceedings.
On 28 April 2016, the wife forwarded email communication to the registry and ultimately to my chambers setting out that whilst she did not intend to participate, she was hopeful that the Court would be respectful of her general position that if at all possible the following orders be made:-
·That the parties have equal shared parental responsibility in respect of B and C.
·That B live with the wife and C with the husband.
·That in respect of property settlement, she retain the property situate at E Street, Suburb F (“the Suburb F property”).
Upon the wife’s communication coming to my attention, I caused the Court to make contact with the wife and arranged for her to attend the hearing by telephone from her place of residence in North Queensland.
The wife’s email communication to the Court is “Exhibit 2” in the proceedings.
Upon her attendance, the wife was invited to make application to adjourn the proceedings to enable her to seek further legal advice and consider thereafter whether she wished to be heard, withdraw completely or remain involved in the trial but with the limited right of making submissions upon the husband’s evidence.
The wife chose to be heard in the trial but declined any invitation to make application for an adjournment.
As matters transpired and notwithstanding the proceeding were listed for an hour in the morning, the proceedings were adjourned part-heard to the afternoon. The wife was afforded significant opportunity to consider her position.
At no stage in the proceedings did the wife indicate that she was under any impediment, that she was surprised by the hearing or that she did not understand the issues that the Court would need to hear.
The wife also acknowledged that all documents had been served upon her and that she had them with her during the currency of the trial.
DOCUMENTS RELIED UPON
The husband relies upon the following documents:-
(1)Amended Initiating Application filed 5 April 2016
(2)Financial Statement filed 5 April 2016
(3)Trial Affidavit filed 5 April 2016
(4)Supplementary Trial Affidavit filed 26 April 2016
(5)Amended Balance Sheet as at 28 April 2016 (“Exhibit 2”)
(6)Taxation records and ATO Portal download (“Exhibit 3”).
The Court was also assisted by an Outline of Case document prepared on behalf of the husband by counsel.
ORDERS SOUGHT
The husband seeks an order for equal shared parental responsibility for B, but an order for sole parental responsibility for C.
Taking into account the age of B and that he resides with the husband, no specific spends time with order is sought in relation to the child, with the expectation that he may move between the parties as his particular needs change.
The same is not the position for C. The husband opposes specific orders in relation to time being spent between C and the wife arising out of an alleged incident that occurred over the recent Christmas holiday period.
Notwithstanding that the wife does not seek specific parenting orders, the parties are not significantly apart in their separate desired outcome.
Whilst the wife does not seek specific orders, nonetheless she is keen that orders be made to ensure that C is able to spend time with her whether that be in Queensland which is her current state of residence, or if she returns to South Australia.
The husband seeks orders that would divide the non-superannuation interests of the parties equally between them. He proposes that he retain his superannuation entitlement with K Super and that the wife retain her superannuation entitlements in her various funds.
The husband’s position in respect of the real property is that he retain the former matrimonial home at G Street, Suburb D (“the Suburb D property”), but that the Suburb F property be sold and the mortgage liability discharged.
There is no challenge to the wife retaining property at H Street, I Town (“IT property”).
The principal concern of the wife is that she would seek to retain the Suburb F property but recognises that the opportunity for her to do so is entirely dependent on the division of property between the parties and her ability to raise finance.
BACKGROUND
The husband was born in 1967 and is currently aged 48 years. The wife was born in 1973 and she is currently aged 43 years. The parties married in 2004 and separated on 26 November 2012 after a relationship of eight years.
The husband works as a highly qualified health professional with membership in the relevant professional societies and associations.
The wife holds a Bachelor’s Degree in a professional discipline.
The husband has an adult child by a previous marriage. His son currently lives predominantly in his household and this is a reflection of the arrangements that existed during the course of the marriage.
B is the wife’s child of a former relationship and C is a child of the parties’ relationship.
There is no challenge by the wife to the importance of the relationship between the husband and B.
I accept the husband’s position that he supported B both financially and emotionally. It is the husband’s contention that B has never met his biological father and whilst he may know of him, he has never been a part of that child’s life.
The husband concedes that the relationship between the parties acknowledged that the husband’s work as a health professional was busy and that the children were significantly cared for by the wife based upon her greater flexibility and availability.
In 2004 the husband considered that he needed to adjust his work practice in order to facilitate his greater involvement in the family and the children, which then prompted his further study and training. The parties appeared to adopt a cooperative approach to the household duties and obligations and the parenting of the children.
I accept the evidence of the husband that when not at work he took on a significant and active role in the home.
In 2003 the parties purchased their first home in Suburb J assisted by the sale of the husband’s pre-marriage property situate at Suburb L. An amount of $210,000 was used from the sale of the Suburb L property to assist in the purchase of Suburb J.
In 2003 the parties purchased the Suburb F property for $510,000. This became the family home until the purchase of the Suburb D property in 2012. It is noted that the Suburb F property is in the joint names of the parties, whereas the Suburb D property is in the wife’s sole name.
In 2012, at the wife’s request, the parties purchased the IT property for $150,000.
At separation the wife retained certain personal effects and furniture situate in the Suburb F property, in addition she retained a caravan, an outdoor spa and gym equipment of indeterminate value.
Following separation, in November 2012, the wife moved into the Suburb F property. The property is apparently tenanted although the details of the tenancy arrangements are unclear. There are no formal tenancy agreements and the husband is uncertain as to the extent to which the wife has gained financially from those tenancies.
The husband is however certain that the wife has not provided any funds to him in relation to the upkeep of the Suburb F property and it is his contention that effectively since separation he has been paying all of the costs, charges, upkeep and expenses in respect of the Suburb F property without contribution from the wife.
On 1 August 2015 the wife moved to North Queensland. She lives in circumstances not clearly understood by the husband. He is also uncertain as to her financial resources.
In April 2015 the husband re-partnered. His partner now resides with him in the Suburb D property with her six year old daughter. His partner is also a health professional and works on a part-time basis.
I accept the husband’s position that he has supported the wife post-separation. He has paid mortgages in respect of the three properties, the wife’s private health insurance, the children’s private health insurance, the wife’s life insurance, school fees and insurances and all expenses in respect of the properties. Child support has also been paid by way of private arrangement in the sum of $250 per week.
Notwithstanding that the wife resides in Queensland, there has been ongoing conflict between the parties.
Initially the husband’s concern arose out of the wife’s threat to move back into the Suburb D property in May 2015. Given that his partner now resides in the property with her daughter and the general desire of the husband to restrict and limit his involvement and engagement with the wife, the threat was clearly troublesome to him.
His concern was further exacerbated by the wife breaking into the Suburb D property and taking some of the husband’s personal effects, belongings and confidential information.
The apparent refusal of the wife to respect the privacy of the husband at the Suburb D property ultimately prompted the proceedings being initiated in August 2015.
It is relevant to parenting issues that on 1 August 2015 the wife took C and B to North Queensland without the husband’s knowledge or consent. The children were removed from school and for a time the wife refused to tell the husband the whereabouts of the children and what arrangements if any she was proposing for their return.
It was only after a recovery order was made that the husband was able to fly to North Queensland and be reunited with the children on 22 August 2015.
Notwithstanding the clear mistrust that had now developed between the parties, between August 2015 and January 2016 the children had regular and appropriate contact with the wife.
In January 2016 it was agreed that B would return to live with the wife in Queensland.
The husband had some concerns at the arrangements for the care of B. There appears to be some dispute or difficulty with a man with whom the wife was in a relationship. B had not started the academic year by March 2016 and the husband took some steps to have the relevant school authorities check upon his attendance.
Notwithstanding the husband’s misgivings, there appears to be no difficulty with B spending time with each of the parties. At the expense of the husband, B stayed with him for a period of two weeks during the school holidays but returned to the wife. By agreement between the parties, B has now returned to the care of the husband.
A curious incident appears to have occurred on 28 January 2016 whilst C was in the care of the wife. The husband learned from another child that C had been tied up with duct tape whilst in Queensland and on holiday with the wife. Apparently both the wife and B engaged in the action and a photo of C bound up in duct tape around a verandah pole was placed on the child’s Facebook page.
At Annexure “AJB13” there are pictures downloaded from the Facebook page of B that would appear to show the child being bound as alleged.
It is of substantial concern that the wife whilst she has chosen to not engage in the proceedings, has not provided any explanation for the abusive and outrageous treatment of C.
In the absence of any explanation, I consider that the evidence of the husband in respect of the treatment of C at the hands of B (and possibly the wife) must be given significant and influential weight in terms of the orders that the husband seeks in relation to C.
PROPOSALS OF THE PARTIES
The husband proposes that B will live with him in South Australia, but in the future he may return to the wife’s home. He does not however seek any specific order in that regard but rather proposes that upon an order for equal shared parental responsibility, B should spend time with each of the parties as they may agree based upon his wishes.
It is likely that in respect of travel arrangements they will fall to the husband without contribution by the wife.
C is aged 11 and it is difficult to determine what orders should be made for him to spend time with the wife. There is no practical difficulty in either of the children spending time in the home of the husband or the wife, but there is now a reluctance by the husband to allow C to travel to Queensland without the wife being able to satisfy him that the child will be safe from abuse.
Unfortunately the wife has not chosen to make comment on the incident involving C notwithstanding the opportunity that she clearly has had to do so.
PRINCIPLES RELEVANT TO PARENTING ORDERS
The parties are not agreed as to the extent to which they should share the parental responsibility for the children. The wife promotes an outcome that would see each of the parties having the equal shared parental responsibility for both children, whereas the husband does not consider it appropriate for there to be an order of equal shared parental responsibility in respect of C.
I am uncertain as to the extent that the husband now mistrusts the wife. It does seem however that he has been generously disposed towards her circumstances and there is an inherent recognition by him that the lines of communication need to be open.
The parties are therefore not agreed as to the issue of parental responsibility save and except in respect of B. The husband concedes that given his age, the time that B will spend in his care is to be determined by the child’s wishes absolutely.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests of the child are met by the application of the objects of s 60B(1).
I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the direction contained in s 60CC(2A) and have regard to the allegations of the husband that the child may have been the subject of inappropriate conduct by his older sibling and possibly the wife.
Notwithstanding the incident, I do not consider that there is evidence of endemic conduct or abuse in the wife’s household.
Section 65DAA (1) provides:
Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child the court must:
(a)consider whether the child spending equal time with each of the parents would be in the interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides:
Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal share parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
I am required to bring to account the provisions of s 65DAA(3) in my consideration of the appropriate orders to be made.
I am obliged to consider in circumstances where I make an order for equal shared parental responsibility whether the proposals of each of the parties are reasonably practicable for the purposes of s 65DAA(2)(c). The Act provides assistance in the determination of “reasonable practicality”.
Accordingly, I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by the husband as identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2).
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests.
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefits of the child having a meaningful relationship with both of the child’s parents and the need to protect the child or children from physical or psychological harm.
(5)Have regard to additional considerations under s 60CC(3).
(6)The evidence adduced by the husband in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.
Section 60CC is to be utilised in order to determine the question about best interests and whether the issue of an order for equal time and/or substantial or significant time would be reasonably practicable is to be determined by reference to the provisions of s 65DAA(5).
I have regard to the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21 where her Honour considered that following the Full Court decision in Beckham & Desprez [2015] FamCAFC 247 there is now no requirement to consider s 65DAA(1A) and s 65DAA(1B) in any particular order.
Moreover, in terms of the application of appropriate principles to parenting cases and the application of what has often been described as “the legislative pathway”, the remarks of Finn J at paragraph 27 are apposite:-
Notwithstanding the imperative language used in decisions such as Goode & Goode (2006) FLC 93-286, it does seem to me that as a matter of pure practicality and in the interests of the efficient disposition of parenting cases, a court need only concern itself with the actual proposals which each party puts before it and which, it can be assumed are “reasonably practicable” from that party’s point of view. In so saying, I do not overlook the fact that in U & U (2002) 211 CLR 238 the High Court made clear that subject to procedural fairness considerations, a court in a parenting case is not bound by the parties’ proposals.
The importance of her Honour’s remarks is to focus judicial attention on the practical reality of each of the party’s proposals and the consideration of the primary and additional considerations as are appropriately applicable.
MEANINGFUL RELATIONSHIP
I am satisfied that it is important to each of the parties that the children have and maintain a meaningful relationship with each of them. That obviously is tested by the tyranny of distance.
The husband also recognises that it is important that C maintain a meaningful relationship with his mother. The current proposal of the husband is that unless the wife travels to South Australia, there is some uncertainty as to the extent to which the husband will allow C to spend time with the wife in her home.
WISHES OF THE CHILDREN
I propose to give significant weight to the wishes of the children to the extent that they are known. B now resides with the husband, but I accept there may be the possibility that he will return from time to time and for differing periods of time to live with the wife.
I am uncertain as to the current wishes of C, but I think it is reasonable to bring to account that he would wish to spend time with his mother providing he is kept safe and is not the subject of ridicule and abuse. The risk of poor behaviour may now be reduced by B residing with the husband.
INVOLVEMENT OF THE PARTIES WITH EACH OF THE CHILDREN
Both the husband and wife have effectively co-parented the children during their relationship. Post separation the children resided with the husband until May 2015 when the husband needed orders of the Court in order to recover the children and to restore them to his home.
In respect of the child C, I am satisfied that the husband is better equipped to foster the child’s development. I am also satisfied that he is sufficiently respectful of the wife’s position that when it is considered appropriate and upon the reasonable assurances of the wife, he will continue to foster the child’s relationship with her.
PARENTAL RESPONSIBILITY
I consider that there should be an order of equal shared parental responsibility by each of the parties in respect of both children.
Whilst the husband seeks to maintain equal shared parental responsibility in respect of B, he considers that the same should not apply in respect of C. It is difficult to understand the rationale for the proposed distinction. It is however necessary to recognise that each of the parties would wish to have responsibility for some considerations in respect of each of the children to reflect the practical reality of each child living a significant distance from the other parent.
In the somewhat unusual circumstances of this case, I propose to order that each of the parties have shared parental responsibility for the children, but that the husband have sole parental responsibility in respect of matters affecting the health and education of C.
I consider that the arrangements for the children to spend time in the care of the non-residential parent should be as agreed between the parties, but in the case of B, subject to his wishes.
PROPERTY SETTLEMENT
I bring to account the husband’s trial affidavit and supplementary affidavit together with the annexures to those affidavits as the evidence in support of the orders he seeks for settlement of property. No evidence has been presented by the wife, although I accept that ideally she would seek to retain the Suburb F property. Whilst the husband seeks orders that the Suburb F property be sold, there is no evidence to support that outcome as inevitable and accordingly I consider that it is open to me, if appropriate to do so, to make orders that would give the wife the opportunity to seek to retain Suburb F.
LEGAL PRINCIPLES TO BE APPLIED
Section 79 of the Act provides:-
(1)In property settlement proceedings, the court may make such orders as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage in the property; or
(b)…
Including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i)either or both of the parties to the marriage; or
(ii)the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
Section 79(2) provides:-
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
“Property” is defined in s 4(1) of the Act as meaning:-
…property which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion…
In Stanford v Stanford (2012) 247 CLR 108 the majority held:-
[35]It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two subsections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
[36]The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds…
It is therefore not to be assumed that a party to a marriage has a right to an interest in property by reference to matters arising under s 79(4). In effect, a party cannot pull themselves up by their own bootstraps by asserting contribution under s 79(4) and then using that position to satisfy the obligation created by s 79(2). To do so would be to “conflate” the relevant sections.
The High Court in Stanford (supra) sought to define its likely application to cases in the following manner:-
[42]In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of the choice made by one or both of the parties, the husband and the wife are no longer living in a marital relationship. It would be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of the property by the husband and the wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
The husband and wife are no living in a marital relationship and will not have the advantage of benefit of the “common use” of property.
I am satisfied that it is just and equitable in the circumstances of a mutual commitment made by each of the parties during a marriage of some significant duration and involving children that the Court should embark upon a consideration of the adjustment of property interests of either of them.
ASSETS & LIABILITIES OF PARTIES
The following list of assets and liabilities are resolved:-
Assets
G Street, Suburb D (wife)
1,070,000
E Street, Suburb F (joint)
760,000
H Street, I Town (wife)
150,000
CBA bank account (husband)
129,000
CBA bank account (husband)
16,000
CBA bank account (wife)
5,000
Furniture (husband)
16,000
Furniture (wife)
16,000
Prestige motor vehicle (husband)
65,000
Motor vehicle (wife)
35,000
BHP shares (husband)
2,500
Total
$2,264,500
Liabilities
Prestige Car finance
52,800
CBA mortgage (Suburb F & Suburb D)
907,000
Taxation liability (husband) (current)
223,000
Total
$1,182,800
Net Total
$1,081,700
Superannuation
K Super (husband)
218,025
Miscellaneous superannuation entitlement (wife)
63,275
SUPERANNUATION
The husband seeks that each of the parties retain their superannuation without adjustment to the other.
There has not been any evidence placed before the Court that procedural fairness has afforded to the trustees.
In any event, it is not sought by the wife and I do not propose to effect any superannuation split of the husband’s splittable entitlements with his superannuation fund.
As at 1 July 2003, the husband’s accumulated superannuation entitlement was $42,380. The husband had joined the Statewide Superannuation Trust in 1994 and had been a contributor up to that point.
It is agreed that the husband’s current superannuation is $218,025. There is no evidence as to the manner in which the superannuation has accumulated from 1 July 2003 to either the date of separation or to the present date other than that the husband has made regular contributions to his superannuation. I am uncertain whether there is any component of the husband’s superannuation which has been achieved by way of salary sacrifice or other work related entitlements or benefits.
Equally, there is no information that assists in the manner in which the wife’s superannuation benefits have accumulated variously held with Super SA, Northern Territory Government and Public Authority Superannuation Scheme, AMP and Super SA Triple S Scheme. I am however satisfied that the wife did not work during the course of the relationship and accordingly, other than the general increase in superannuation by the efflux of time, the wife has not made any contribution to superannuation. On 30 June 2012 the husband however transferred $20,000 into her superannuation on advice of his accountant in order to minimise the taxation of the parties.
Accordingly, it is likely that a significant proportion of the wife’s superannuation has accumulated during the course of the marriage. The same applies to the husband but perhaps to a lesser degree reflecting his superior earning capacity and the likelihood that there has been enhanced contributions made post-separation.
I do not propose to bring the superannuation into the balance sheet and treat the separate superannuation entitlements of the parties as if they were property.
I decline to adjust between the parties their superannuation interests but rather, I propose to leave the parties separate superannuation interests with each of them, but to bring to account superannuation as an adjustment under s 75(2) of the Act noting that in doing so it is nonetheless proper to bring to account as a matter of contribution the extent of the husband’s superannuation entitlement at the commencement of marriage, but not bring the same component to account in determining the extent to which the superior superannuation of the husband is reflected in the s 75(2) adjustment.
CONTRIBUTIONS
The husband’s position is that at the commencement of cohabitation he had net property of about $240,000 together with superannuation of about $46,000. The wife had total property to the estimated value of $12,000.
The difference in the value of property introduced into the relationship between the parties is significant noting that it is against an asset pool of $983,193.
There is no argument by the wife in respect of matters relating to contribution. She presents nothing in relation to the topic and I consider that the evidence of the husband should be accepted.
In Pierce & Pierce (1999) FLC 92-844 at page 85,881 the Full Court said as follows:-
In our opinion it is not so much a matter of erosion of contribution but a question of what weight should be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
Significantly, the husband’s property at Suburb L enabled the parties to purchase the Suburb J property and then the Suburb F property.
The husband’s shares in BHP are still retained by him and his early superannuation contributions now forms part of the husband’s current superannuation with K Super at $218,025.
It is not argued by the husband that there should be any adjustment to reflect the parties differing contributions during the course of the relationship. The same however is not said in respect of the period following separation.
At paragraph 69 of the husband’s affidavit he sets out the extent to which he has contributed both in respect of the children by the payment of child support, the mortgages over the properties in the sum of $178,000, various cash and other payments made to the wife and the payment of accounts and insurance in respect of both Suburb F and Suburb D. The husband considers that the total amount paid by him since separation is $263,500. It is relevant that the husband has financially supported B throughout the relationship and continues to do so.
I do not however consider that it would be appropriate to bring to account child maintenance, particularly having regard to the significant disparity in income enjoyed by each of the parties.
It is however relevant that the husband has paid the mortgages over the properties, particularly the Suburb F property, to which he has not had any benefit and about which he complains the wife has received rental income without contribution by her to offset the expenses in respect of that property.
It is also noted that the husband had the care of the children until mid-2015. There were significant expenses that arose in relation to the unilateral action of the wife in retaining the children requiring Court proceedings and a recovery order that they be returned to his care. The husband has also paid the school and sporting fees for C and B to the sum of $4,000.
I have also considered in determining the weight to be given to the husband’s contribution, the property accumulated by him (including substantial cash savings) in the period following separation. This occurred in circumstances where the husband had the care of the children. See Scott & Scott [2006] FamCA 1379.
I propose to adjust the contribution as between the parties to reflect 65/35 per cent in favour of the husband.
SECTION 75(2) FACTORS
I am uncertain as to the extent to which the husband concedes that there should be an adjustment of s 75(2) factors. Significantly, the principal adjustment is to take into account the income disparity of the parties in favour of the husband (see Waters & Jurek (1995) FLC 92-635).
It is also necessary to bring to account the financial resource of the husband that he has in respect of his superannuation entitlement which is significantly more substantial than that of the wife. The income disparity is however overwhelming and I am mindful to ensure that any adjustment in respect of s 75(2) must have a meaningful outcome.
Accordingly, I propose to make an adjustment of 15 per cent in favour of the wife to reflect s 75(2) resulting in an overall adjustment of 50 per cent to the wife and 50 per cent to the husband.
CONCLUSION
The net total property is $1,081,700. The wife is entitled to 50 per cent of the property being a settlement outcome of $540,850.
The wife retains the following:
The Suburb F property
$760,000
I Town property
$150,000
Furniture and effects
$ 16,000
Motor vehicle
$ 35,000
CBA bank account
$ 5,000
Total
$966,000
Less wife’s entitlement
$540,850
Settlement sum payable to husband
$425,150
The wife has now secured fulltime employment and given her intention to retain the Suburb F property, it is a matter for her as to whether she intends to retain the IT property.
Accordingly, I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 May 2016.
Associate:
Date: 20 May 2016
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