Bertrand & Bertrand

Case [2021] FedCFamC1F 70

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bertrand & Bertrand [2021] FedCFamC1F 70

File number(s): SYC 2440 of 2019
Judgment of: BERMAN J
Date of judgment: 11 October 2021
Catchwords:

FAMILY LAW – CHILDREN – Parental Responsibility – Where the wife seeks shared parental responsibility save as to decisions in relation to the children’s education and health – Where the husband seeks equal shared parental responsibility – Where there has been issues with the parties’ ability to communicate – Where the wife will be able to support the children’s relationship with the husband once the litigation has ended – Orders.

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Relocation – Best interests – Where the wife seeks to relocate the children’s residence to Melbourne – Where the husband opposes the relocation and seeks equal shared care and if not significant time spending – Where there are allegations of family violence – Where the children’s primary attachment is to the wife – Where the children are aware of the wife’s distress and anxiety and the financial conflict between the parties – Consideration of weight to be given to the children’s views – Consideration of the impact relocation will have on the children’s relationship with the husband – Where the children will be able to maintain a meaningful relationship – Where the wife will support the children’s relationship with the husband – Orders.

FAMILY LAW – CHILD SUPPORT – Application for departure – Where the wife seeks that the husband pay periodic child support in addition to non-periodic child support of the children’s school fees and expenses – Where the husband seeks that he only pay non-periodic child support by way of the children’s school fees and health insurance – Consideration of the parties’ financial circumstances – Consideration of costs likely to be incurred in the children spending time with the husband – Orders.   

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Contributions – Future needs – Add backs – Where the contributions of the parties are considered equal – Where the husband has accrued a significant tax liability – Where the husband seeks to bring to account as a liability of the parties his full tax liability – Where the Commissioner of Taxation has intervened in the proceedings and seeks payment of the liability from sale proceeds of the former matrimonial home prior to any distribution to the parties – Where the husband also seeks a similar order – Where the wife argues the issue has already been determined in the Supreme Court of New South Wales and the liability should be borne by the husband alone – Consideration of whether the tax liability should be a joint liability of the parties – Consideration of the wife’s knowledge and whether she benefited – Where the parties should be required to contribute equally to the liability accrued pre-separation – Where part of each parties’ legal fees are added back – Consideration…

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Bertrand & Bertrand [2021] FedCFamC1F 70
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[2021] FedCFamC1F 70
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CaseChat Overview and Summary

The case of Bertrand & Bertrand involved a dispute between the husband and wife regarding the division of property and the care arrangements for their four children following their separation. The matter was heard in the Family Court of Australia. The wife sought sole use and occupation of the family home, and both parties presented their proposals for parenting arrangements for the children. The legal issues included the division of the matrimonial property and the determination of the children’s living arrangements.

The court considered the separate proposals of the parties, the objects and principles of the Family Law Act, and the best interests of the children. The court gave particular attention to the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from harm. The court also evaluated the evidence provided by both parties regarding the primary and additional considerations outlined in the Act. The wife's allegations of family violence were noted, but the court considered that appropriate court orders could mitigate any risks.

In its reasoning, the court determined that an adjustment in favour of the wife was warranted based on the dollar value of the assets rather than a strict percentage approach. The court calculated the net pool of property and superannuation, leading to an award of 57.5% to the wife, amounting to $1,710,033. The husband was required to pay a settlement sum to the wife, with a portion going to the Australian Taxation Office. The court made orders for reimbursement of the cost of a report by Dr D, reducing the husband's settlement sum. The court concluded with specific orders for the division of property and care arrangements for the children, ensuring that the best interests of the children were paramount.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

A case outline document was filed by each counsel and their closing final submissions were supplemented by detailed written final submissions.BACKGROUND The wife was born in 1975 and is now aged 46 years. The husband was born in 1976 and is now aged 44 years. The parties commenced cohabitation in 2002 in the United Kingdom where they met. The husband was employed in the finance industry. The wife also worked in the finance industry. The parties relocated to Australia in 2004 and following their marriage in 2005, purchased a property at T Street, Suburb U, New South Wales (“the Suburb U property”) for $1.9 million. At that time, the wife was employed by a large international firm with the husband being employed by an American company. Following the birth of W in 2006, the wife ceased employment and undertook the role of homemaker. In 2007 the parties sold the Suburb U property. In or around 2008, the parties purchased a property at V Street, Suburb C (“the V Street property”) for approximately $2,100,000 by application of the net proceeds of sale of the Suburb U property, with the residual balance funded by a secured loan. The parties agree that they undertook significant renovations either at or greater than $1,000,000. The parties remained in the V Street property until they purchased the property at J Street, Suburb C (“the first Suburb C property”) in 2010. As at the sale of the V Street property in 2010, X and Y were born. Z was born in 2012. The parties separated for a short period of time in 2015. In 2017 the parties agreed to sell the first Suburb C property and purchased the former matrimonial home at J Street, Suburb C for $4,890,000, funded by mortgage of about $2,800,000 and the net proceeds of the sale of the first Suburb C property. The former matrimonial home is held as tenants in common as to 99 per cent interest to the wife and 1 per cent interest to the husband. In September 2018, the husband as both founder and CEO established the entity known as H Business with a number of other investors. On 7 December 2018, the husband transferred $260,000 to the wife’s account to assist in the payment of school fees and mortgage payments on the former matrimonial home. As a result of irreconcilable differences, the parties agree that they finally separated on 1 January 2019. On 3 June 2019, interim orders were made by the Senior Registrar that the children live with the wife and spend time with the husband each weekend on a two weekly cycle, for the first week from 9.00 am to 5.00 pm on Saturday and for the second week from 9.00 am to 5.00 pm on Sunday. A notation to the order of 3 June 2019 required the husband to advise the wife if he intended to sell or in any way deal with more than $100,000 of shares held by him with G Bank. On 24 July 2019, the parties consented to an order resolving on an interim basis that the wife have sole use and occupation of the former matrimonial home. Each of the parties has re-partnered. The husband commenced a relationship with Ms AA (“Ms AA”) in February 2019 and the wife with Mr B (“Mr B”) in early 2019.

Evidence

Evidence Before The Court

I propose to adopt the following approach:-(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;(3)Have regard to the provisions of s 60CC of the Act 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) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;(5)Have regard to the additional considerations under s 60CC(3) of the Act;(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.EVIDENCEThe wife The wife confirmed that W is currently undertaking year 10, Y is in year 5, X is in year 7 and Z is in year 3. At the time of trial, the wife acknowledged that if the children are permitted to relocate to Melbourne then the girls have been accepted into BB School. The wife also confirmed that as at March 2020 her fiancé Mr B had care of his children on a week about basis. The wife’s evidence is that at least one of the reasons for her relocation to Melbourne is to take advantage of better financial opportunities. The wife agreed that part of the financial consideration was her relationship with Mr B. The wife was asked to consider her suite of orders that provided for the children to spend time with the husband whilst they remained in Sydney and if permitted to relocate, following their move to Melbourne. The effect of the wife’s orders is that prior to relocation the children should spend three nights per fortnight with the husband and one week in each of the short school holidays. The wife considered that the children would benefit from such an order but that if they sought more time then she would consider it. In particular, she accepted that she would facilitate any request by the children for extended time during school holidays. The wife was asked to consider whether Dr D, in her report dated 20 March 2020 (Exhibit “15”) at paragraph 5, accurately recorded the wife’s purported allegation “that the father was verbally, physically and emotionally abusive to her and the children throughout the marriage”. The wife confirmed that the assertion that the husband was the perpetrator of family violence was still a part of her case. The wife was asked to consider how her statement to Dr D would be reconciled with orders that she now sought which provided for the husband to have unsupervised overnight and extended block time during school holidays. The wife considered that the husband’s conduct and any risk that he posed to the children could be effectively dealt with by Court order that restrained him from being physical, abusive or violent.

Decision

Reasons for decision

Taking into account the matters considered and acknowledging that a percentage adjustment must be considered on the basis of its dollar worth rather than the application of some percentage based principle, there should be an adjustment in favour of the wife of 7.5 per cent.CONCLUSION The net pool is $2,973,971. At 57.5 per cent the wife is to retain property and superannuation totalling $1,710,033. The wife is to retain the following: The wife is entitled to the sum of $1,710,033 and accordingly, she must pay to the husband the settlement sum of $1,076,916 from which will be paid the sum of $949,554 to the ATO. From the husband’s share, he is to reimburse the wife one half of the cost of the report of Dr D in the sum of $19,580, reducing his settlement sum by $9,790 to $1,067,126. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

As discussed, the focus is to consider the separate parenting proposals of the parties, have regard to the benefits and detriments that the child will experience and ultimately determine the matter on the basis of the best interests of the child.PARENTING CONSIDERATIONS Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) of the Act and the underlying principles of s 60B(2) of the Act. I give weight to the primary considerations and additional considerations in respect of the factors as set out in ss 60CC(2) and (3) of the Act. I propose to adopt the following approach:-(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;(3)Have regard to the provisions of s 60CC of the Act 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) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;(5)Have regard to the additional considerations under s 60CC(3) of the Act;(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.EVIDENCEThe wife The wife confirmed that W is currently undertaking year 10, Y is in year 5, X is in year 7 and Z is in year 3. At the time of trial, the wife acknowledged that if the children are permitted to relocate to Melbourne then the girls have been accepted into BB School. The wife also confirmed that as at March 2020 her fiancé Mr B had care of his children on a week about basis. The wife’s evidence is that at least one of the reasons for her relocation to Melbourne is to take advantage of better financial opportunities. The wife agreed that part of the financial consideration was her relationship with Mr B. The wife was asked to consider her suite of orders that provided for the children to spend time with the husband whilst they remained in Sydney and if permitted to relocate, following their move to Melbourne. The effect of the wife’s orders is that prior to relocation the children should spend three nights per fortnight with the husband and one week in each of the short school holidays. The wife considered that the children would benefit from such an order but that if they sought more time then she would consider it. In particular, she accepted that she would facilitate any request by the children for extended time during school holidays. The wife was asked to consider whether Dr D, in her report dated 20 March 2020 (Exhibit “15”) at paragraph 5, accurately recorded the wife’s purported allegation “that the father was verbally, physically and emotionally abusive to her and the children throughout the marriage”. The wife confirmed that the assertion that the husband was the perpetrator of family violence was still a part of her case.