Bilton & Pinemore
[2023] FedCFamC1F 657
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bilton & Pinemore [2023] FedCFamC1F 657
File number(s): BRC 18022 of 2020 Judgment of: BAUMANN J Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – PROPERTY – Two pool approach – Where the use of funds for legal expenses is added back –Unexplained use of funds regarded by the Court as a premature disposition by the husband and added back – Where the receipt by the husband of a number of payments from the Department of Veterans’ Affairs is regarded as a contribution made by the husband –– Where the wife is found to have made an indirect contribution to the husband’s disability benefit entitlement – Where the husband has a number of pre-existing injuries and mental health challenges where he cannot work into the future – final property adjustment orders made that achieve justice and equity between the parties Legislation: Family Law Act 1975 (Cth) ss 75, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.7
Cases cited: Aleksovski & Aleksovski (1996) FLC 92-705
NHC & RCH (2004) FLC 93-204
C & C (2005) FLC 93-220
De Angelis & De Angelis (2003) FLC 93-133
Falcken & Weule [2019] FamCAFC 140
Hickey & Hickey (2003) FLC 93-143
Kennon & Kennon (1997) FLC 92-757
Stanford & Stanford (2012) 247 CLR 108
Townsend & Townsend (1994) 18 Fam LR 505
White & Tulloch v White (1995) FLC 92-640
Yeates (as Executor for Yeates) & Yeates [2013] FCWA 117
Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 17 & 18 July 2023 Place: Brisbane Solicitor for the Applicant: Mr P Bogatec, Wadlow Solicitors Counsel for the Respondent: Ms K Carmody Solicitor for the Respondent: WGC Lawyers Counsel for the Independent Children’s Lawyer: Mr M Pollock Solicitor for the Independent Children’s Lawyer: Berck Solicitors ORDERS
BRC 18022 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BILTON
Applicant
AND: MS PINEMORE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
11 AUGUST 2023
THE COURT ORDERS:
Property adjustment
1.That the husband and wife do all acts and things and sign all documents as may be required to cause all of the funds held in the joint B Bank account number …74 to be paid to the wife.
2.That within sixty (60) days of the date of these Orders, the husband pay to the wife the sum of $156,000.
3.That upon payment of the amount referred to in the preceding paragraph:
(a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right title and interest in the real property situated at C Street, Suburb D, more particularly described as Lot … on SP … certificate of title reference … (“the Suburb D property”); and
(b)the husband indemnify the wife against all payment and cause her to be discharged from any and all liability pursuant to mortgage number … to E Credit Union and all rates, taxes, outgoings of or with respect to the real property of whatsoever nature and kind.
4.That in the event the husband is in default of Order 2 and/or Order 3 herein, the husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of the Suburb D property and by way of consequential arrangement that shall be made for the purposes of effecting a sale:
(a)the listing price for the real property shall be as agreed between the parties and if there is no agreement the listing price shall be $900,000.00; and
(b)the real property shall be listed for sale by private treaty with such agent as shall be agreed between the parties.
5.That in the event the real property has not been sold by or before a date three (3) months from the date of these Orders, then the husband and wife shall make all such arrangements and do all such acts and sign all such documents and the husband and wife shall pay all moneys equally necessary to procure a sale by public auction of the real property upon the following terms:
(a)The auctioneer shall be such auctioneer as agreed between the parties;
(b)The auction shall take place by two (2) months after the deadline date for sale by private treaty;
(c)The reserve price shall unless agreed upon by the parties be as proposed by the auctioneer; and
(d)The husband and the wife shall each pay and be responsible for payment of one‑half of auction expenses payable before the real property is auctioned.
6.That in the event the property is not so sold by auction or by private negotiation within fourteen (14) days after the said auction, then the husband and wife shall do all such acts and sign all necessary documents and the husband and the wife shall pay all moneys equally necessary to procure a second auction within a further six (6) weeks of that date otherwise upon the same terms and conditions as applied to the first auction.
7.That upon completion of the sale, the proceeds of the sale be applied as follows:
(a)Firstly, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the real property;
(b)Secondly, to discharge the mortgage and any other encumbrances affecting the real property; and
(c)The balance then remaining to be paid so as to achieve a distribution of the pool one interests set out in the Reasons for Judgment delivered 11 August 2023 – as to 47% to the husband and as to 53% to the wife.
8.That the husband shall retain sole beneficial ownership as against the wife of the following:
(a)Motor Vehicle 1 registration number …;
(b)Household furniture and collection;
(c)All furniture, household items and personal property currently in his possession;
(d)All bank accounts held by him; and
(e)Subject to the superannuation splitting order below, his superannuation interests with Superannuation Fund 1.
9.That the wife shall retain sole beneficial ownership as against the husband of the following:
(a)Motor Vehicle 2 registration number …;
(b)F Pty Ltd;
(c)All furniture, household items and personal property currently in her possession;
(d)All bank accounts held by her; and
(e)Her superannuation interests with Superannuation Fund 1.
10.That the husband and wife shall do all acts and things and sign all such documents as may be necessary to cause:
(a)National Australia Bank account …46 to be held by the husband solely as trustee for X;
(b)National Australia Bank account …60 to be held by the wife solely as trustee for Y; and
(c)National Australia Bank account …65 to be held by the wife solely as trustee for Z.
11.That Orders 11(a) to 11(g) inclusive below are binding on G Investments Limited (“the trustee”) the trustee of Superannuation Fund 1 (“the fund”):
(a)The member spouse is the Applicant, Mr Bilton, born in 1974;
(b)The non-member spouse is Ms Pinemore born in 1980;
(c)Pursuant to s 90XT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment becomes payable from the superannuation interests held by the Applicant in the fund, the trustee shall pay to the Respondent the base amount of $466,783 and there be a corresponding reduction in the entitlement the Applicant would have but for this Order;
(d)The Respondent is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using the base amount of
$851,938.00$466,783 of the value of the member’s interests in the funds; and(e)There will be a corresponding reduction in the entitlement of the Applicant, to whom the splittable payment would have been made but for these Orders;
(f)That having been afforded procedural fairness in relation to the making of this Order, this Order binds the Trustee;
(g)Order 11(c) has effect from the operative time;
(h)The operative time for these Orders is seven (7) business days after the date of service of the Orders on the Trustee and; and
(i)The trustee and the parties have liberty to apply in relation to these Orders.
12.That each party do all things and sign all documents necessary to give full force and effect to the provisions of these Orders and in default (evidence by the failure to do so within seven (7) days of a written request) then a Registrar of this Court is appointed to sign such documents and do such acts necessary in lieu of the defaulting party.
13.That the transferee spouse or the spouse receiving the benefit of any transaction pursuant to these Orders prepare the documentation necessary to give effect to the provisions of these Orders at their cost and further be responsible for the payment of registration fees and all other fees in relation to the transfer of the properties to their name.
14.That any duty payable on transactions arising from these orders or any documents executed pursuant to these Orders be paid by the transferee spouse or the spouse receiving the benefit of such transfer or transaction.
Further parenting Orders
15.That subject to the terms of the parenting Orders dated 17 July 2023 in respect of the children, Y born 2008 and Z born 2015 to spend time with the father in Brisbane:
(a)the father shall meet all of the costs of supervision and his travel costs for the visit that occurs in City H under Order 7(a) made 17 July 2023;
(b)the father shall meet all of the costs of supervision and the travel costs for the children from the City H airport to the Brisbane airport and return, including all the costs of travel and accommodation for the mother and children for the visit occurring under Order 7(b) made 17 July 2023;
(c)the mother and father, from the commencement of the 2024 school year and continuing, shall meet the costs of travel from City H airport to Brisbane airport and return, including all costs of travel for any accompanying adult (if the airline will not permit Z to fly as an unaccompanied minor) as follows:
(i)The parents shall equally share the costs for the visits at the end of term two (2) and four (4); and
(ii)The father shall solely meet the costs for the visits at the end of term one (1) and three (3).
16.That if the father is unable to meet the costs of travel for the visits at the end of term one (1) and/or three (3) in any year, then he shall give the mother not less than thirty (30) days’ written notice prior to the commencement of that school holiday period, of his inability to meet the costs, and unless otherwise agreed in writing between the parents, the children will not spend time with the father for that holiday.
17.That unless otherwise agreed in writing:
(a)the father shall book the flights from City H to Brisbane and pay for the children’s flights for each visit and give the mother not less than sixty (60) days’ written notice of the flight details for the journey from City H to Brisbane;
(b)if the mother (or another adult known to the child) is required to accompany the child from City H to Brisbane, then the mother shall pay for that flight for the accompanying person, but is entitled to seek reimbursement from the father for the costs incurred for any visit at the end of term one (1) and term three (3);
(c)the mother shall book the flights and pay for the children travelling from Brisbane to City H for the end of term two (2) and term four (4) holidays and give the father not less than sixty (60) days’ written notice of the flight details for the journey from Brisbane to City H’
(d)if the father (or another adult known to the child) is required to accompany the child from Brisbane to City H, then the father shall pay for that flight for the accompanying person;
(e)noting it is likely that the costs of purchase of a return flight may at times be less expensive than purchasing two (2) separate one way tickets, the parents may, by written agreement, vary how tickets are purchased provided that the costs of travel (and those of any necessary accompanying person) are met as prescribed by Order 15 therein; and
(f)in making flight bookings, the parent making the booking shall take into consideration that the departure or arrival time scheduled do not create a practical difficulty for the child travelling from the home of the parent to the airport or from the airport to the home (for example, not too early or too late).
Costs
18.That any party seeking an order for costs of the substantive proceedings or any costs reserved from any interlocutory applications, shall:
(a)within twenty one (21) days, file and serve written submissions (including details of quantification of such costs);
(b)the other party shall file and serve within forty two (42) days any written submissions in Response; and
(c)unless otherwise ordered, the issue of costs shall be determined on the papers in chambers.
IT IS NOTED:
A.That these Orders have been amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bilton & Pinemore has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
The Applicant husband Mr Bilton and the Respondent Ms Pinemore have been litigating since December 2020 over parenting and property issues, culminating in a trial commencing on 17 July 2023.
The parties, with the assistance of their legal advocates – Mr Bogatec for the husband and Ms Carmody for the wife – were able to resolve the parenting issues, save for one issue relating to the costs of travel involved between City H to Brisbane and return. I make some determination of that issue towards the end of these Reasons.
The property issues required the parties to be cross-examined and the Reasons which follow seek to explain why the orders I now pronounce, in the Court’s view, achieve justice and equity for both parties.
STATUTORY FRAMEWORK
Shortly stated, but more concisely and elaborately described in the Full Court decision in Hickey & Hickey (2003) FLC 93-143, in a property settlement case, the Court must adopt a well-known four-step process, essentially:
(a)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
(b)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4) of the Family Law Act 1975 (Cth) (“the Act”);
(c)to consider the factors as are relevant contained in s 75(2) of the Act; and
(d)finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.
Both parties acknowledge, with the end of the relationship and the cessation of the understandings developed during the course of that relationship relating to the hopes of a financial future together, that it is so just and equitable to make orders that alter the existing legal and equitable interests (s 79(2) of the Act and Stanford & Stanford 247 CLR 108).
CONTEXTUAL BACKGROUND
Statements of fact which follow should be construed as findings of fact. In that regard, the parties at the trial relied upon their single trial affidavit, and their most recent Financial Statement. Some documents were tendered during the cross-examination, which was concise and contained within a few hours in total. No issues of credit seriously arose – although the husband did not fully accept all the wife’s evidence about the difficulties she felt and said she experienced, arising from the relationship and the frequent periods of separation arising from both of the husband’s postings and deployment as a member of the Australian Defence Force, and also his asserted behaviour when he would return home.
In circumstances where, at the onset of the hearing, Ms Carmody confirmed for the record that the wife was not running a Kennon & Kennon (1997) FLC 92-757 type case, the cross‑examination about marital conduct by both Counsel was significantly truncated.
When the parties commenced cohabitation in early 2001, the husband was approximately 27 years of age and the wife was approximately 21 years of age. The husband had joined the Australian Defence Force in 1993 at the age of 19. The wife was completing some tertiary studies. Early in the relationship, for the husband’s career advancement, the couple relocated to Melbourne and then City J before marrying in 2004.
The couple were blessed with the birth of three sons:
(a)X in 2005;
(b)Y in 2008; and
(c)Z in 2015.
It is not necessary to detail the significant number of home movements (the husband concedes about thirteen times) and deployments overseas by the husband which usually, but with the exception of some time in the United States of America as a family, occurred during the relationship. I find that at least the husband’s absences meant the wife was required to meet the day to day responsibilities of homemaker and parent often as a single parent. This is not meant to be a criticism of the husband who was serving his country – but a mere statement of fact.
Often when the husband was away for a few weeks, the wife took the opportunity to return to her home country (as an Indigenous Australian) of K Region, where she had family support. With these circumstances that surrounded the wife’s living arrangements, I find it is impressive that she was able to advance her career, – both as a self-employed consultant through her company F Pty Ltd and as a professional within the L Institute and other entities.
I am satisfied that financial issues were often the subject of conflict between the parties – such that it was the wife’s sense that the husband was both financially and personally coercive and controlling. As I will reiterate, although the wife continued admirably to earn a modest income, the husband’s income (and various benefits he acquired as a member of the Australian Defence Force (“ADF”)) significantly exceeded that of the wife.
The evidence demonstrates not only careful financial management, where no evidence of waste or excessive personal discretionary expenditure is offered, but decisions primarily made with a view to securing a good financial future for the couple and their family. Often this involved, I find, advice from professional financial planners.
It is not necessary to set out all the major financial decisions made (most of which I further highlight below) but record that the parties engaged in some real estate transactions (I infer with the taxation benefits of negative gearing) and when the husband received some significant benefits upon his discharge from the ADF in late 2018, funds were contributed to his superannuation. As the agreed pool of assets and interests reveal, all investment properties have now been sold and the funds remaining in the B Bank account represent (after some agreed disbursements) the nett funds from those activities.
At a time when the husband was posted to Suburb M, after 2012, it was decided to purchase a family home at C Street, Suburb D with the benefit of mortgage finance.
The husband has continued to reside in that home (purchased in 2014) since final separation occurred in September 2020. The wife had left the family home to travel for family reasons to K Region with the children. She has not returned to that region of Queensland and has resided in City H primarily since separation.
The husband commenced proceedings in the Federal Circuit Court of Australia (as it was then known) in December 2020 and, where the parties agreed to final parenting orders (save for one issue) on 17 July 2023 on the first day of trial, there is little need to delve into the difficulties encountered by the parties and their children post separation other than to observe that:
(a)shortly after separation, X decided to return from regional Queensland to Brisbane to live with his father and, importantly, to complete his education. He was aged 15 years at the time of separation; and
(b)the two younger children Y and Z (aged 12 years and nearly five years respectively at separation) have continued to live with their mother and have spent little or no time with the father, and limited opportunities for communication were created by the parents. A more complete understanding of this situation for all the children (and their relationship as siblings), is obtained from the family report of Dr O dated 5 May 2022.
The proceedings were transferred to Division 1 of this Court on 23 February 2023 and despite, I am satisfied, genuine negotiations to seek to reach final orders, that did not occur, such that the proceedings were listed for a trial which commenced on 17 July 2023 in Brisbane.
POOL
Considering the observations of the Full Court in Coghlan & Coghlan (2005) FLC 93-220, and after a preliminary view was expressed from the Bench of the appropriateness of adopting a two pool approach, both the husband and wife in final oral submissions adopted the suggestion that one pool relating to non-superannuation interests (“pool one”) and a second pool of superannuation entitlements (“pool two”) is indicated on the facts of this case. Those interests were ultimately agreed to be as follows:
POOL ONE PARTY DESCRIPTION AMOUNT Assets Joint C Street Suburb D $900,000 Joint B Bank account $290,090 Husband Motor Vehicle 1 $32,800 Wife Motor Vehicle 2 $29,600 Husband Furniture and Specialist Collection $10,095 $1,262,585 Liabilities Joint B Bank mortgage debt $419,924 $842,661 Add backs Wife Partial property payments $100,000 Husband Partial property payments $50,000 Husband Premature disposition by the husband $94,000 $244,000 TOTAL NETT POOL ONE $1,086,661 POOL TWO PARTY DESCRIPTION AMOUNT Husband Superannuation Fund 1 $1,623,648 Wife Superannuation Fund 1 $103,016 TOTAL NETT POOL TWO $1,726,664
By final submissions, the husband did not seem to challenge the assertion by the wife that the husband had accessed $105,000 from joint funds from the B Bank account. I find that in early 2021 the husband withdrew $55,000 and then via another B Bank account he controlled, the funds were deposited into this National Australia Bank (“NAB”) account. The husband was taken carefully to subsequent withdrawals from that NAB account – and he conceded that $24,220 were paid towards his legal fees and he claimed $11,000 was used to install an air-conditioning unit into the Suburb D home. I accept the husband’s evidence, however this means the use of the balance of funds ($19,780) is unexplained other than his evidence, under cross-examination, for “living expenses”.
The use of funds for legal expenses should be added back (see NHC & RCH (2004) FLC 93‑204). The monies used to improve the former matrimonial home should not be added back as it was a contribution made essentially jointly to the improvement of the home.
I regard the unexplained use of the balance as a premature disposition by the husband and ought to be added back (see Townsend & Townsend (1994) 18 Fam LR 505). On this basis, rather than “adding back” the sum of $55,000 for these withdrawals as the wife contends, I regard it as just and equitable to “add back” the sum of $44,000.
CONTRIBUTIONS
As I have already identified, the parties undertook what some might describe as traditional roles in their long relationship of over 19 years between cohabitation and final separation. The wife and husband had little by way of assets at cohabitation, although I accept that the husband would have accumulated some benefits from his employment in the Australian Defence Force between 1993 and cohabitation. The husband gave evidence of what he says his accumulated benefits at that time were, however no basis for his estimation is given or corroborated by expert evidence. As such I do not regard his lay opinion as admissible.
The factors that need to be taken into account amongst the myriad of financial and non‑financial; direct and indirect contributions during the relationship to the interests in pool one – additional to the general finding about the roles undertaken, include:
(a)when the husband was discharged in late 2018, having been diagnosed with Post Traumatic Stress Disorder (“PTSD”) in late 2015 and undergoing treatments for other service related complications and injuries, the husband was able to convert part of his entitlement to a disability benefit – currently being paid at a rate of $1,937 a week (gross). Considering the husband’s service was 25 years, with 17 years having occurred post cohabitation, I find the wife made an indirect contribution to that entitlement. Whilst I accept it was the husband who undertook the service obligations, he was, I find, able to maintain his service because the wife supported his career promotions and deployments and took on the responsibilities of caring for the three boys, often in difficult circumstances;
(b)before separation, the husband did receive a number of payments made to him by the Department of Veterans’ Affairs (“DVA”) as incapacity lump sum payments for several injuries suffered in his Australian Defence Force service totalling $434,000 (see paragraph 94 of the husband’s affidavit) between mid-2018 and early 2019. The husband says, and I accept, he deposited these funds to the joint B Bank account “to offset our mortgage and reduce interest”. Although I accept the wife made a further contribution to the care of the husband by attending some medical appointments; necessary travel; support during hospitalisation and rehabilitation, which I take into account, the payments relate to injuries sustained by the husband – akin to personal injuries awards. As a result, I regard them as contributions made by the husband (see Aleksovski & Aleksovski (1996) FLC 92-705);
(c)whilst the husband, I find, sought to minimise the support the wife gave him, and I generally prefer the wife’s evidence in that regard, I accept that the wife did receive a carers pension/allowance for some period prior to final separation which she contributed to the family income or to meet expenses;
(d)post separation, the wife has met the emotional and financial needs of the children Y and Z, with the husband paying child support as assessed currently at $84.84 per week, adjusted I infer by the fact that X was in his care. X has, through DVA, had access to some further financial support as is available to family of veterans; and
(e)post separation, the husband has enjoyed the full use and benefit of the former family home and although I accept he has maintained mortgage payments (currently estimated by him to be $773 a week), the wife has been forced to make rental payments from time to time, although currently she and the younger children have the benefit of rent free accommodation provided by the wife’s family.
In respect of the pool one interests, I estimate the myriad and diverse contributions from cohabitation to the final hearing, should be assessed as slightly favouring the husband in the proportions of 55% to the husband and 45% to the wife (a differential of 10% on $108,000).
The additional factors that should be taken into account in respect of the interests in superannuation detailed in pool two include:
(a)the wife’s employer contributions that have caused her to accumulate her current superannuation benefits ($103,016) which have almost entirely accumulated prior to separation (and represents I infer a number of smaller entitlements over the years sensibly rolled into the one fund). As a result, the husband should be viewed as having made a small indirect contribution to that current entitlement;
(b)I accept the husband’s evidence at paragraph 97 of his trial affidavit that when he was discharged from the Australian Defence Force, his Superannuation Fund 2 was “ceased and closed”. I accept the husband contributed to his Superannuation Fund 2 benefits until his discharge (which I find similarly should be a benefit to which the wife made an indirect contribution), however his estimate that at the time of discharge the “balance was about E$850,000” is not verified by any expert evidence or documentation. If however the husband’s lay opinion was correct, accepting that benefit accrued over 27 years, with 17 of those 27 years accruing during the relationship, it follows that the wife’s indirect contribution to a notional balance of over $500,000 cannot be ignored;
(c)I accept, on financial advice and to minimise some significant tax consequences if he had failed to do so, after the husband elected to accept part of his Superannuation Fund 2 account as a pension, a balance of $362,473 was “rolled over” to the husband’s Superannuation Fund 1. As already mentioned, the wife’s modest contribution can be traced in effect to this payment and, to some degree the continuing disability pension; and
(d)during the course of the relationship the parties took out, and funded from income to which both parties contributed, a trauma and permanent incapacity insurance policy. With the husband’s discharge, it was possible to make a claim on the policy of insurance which was successful and resulted in the husband receiving the benefit of a payout of $1,257,182. The husband says, and I accept, on financial advice and to again minimise significant income tax consequences, he made a further contribution to Superannuation Fund 1 of this payment. Ms Carmody contended that this contribution should be regarded as a joint contribution. In my view, authority identifies a number of different factual situations can lead to a range of findings about how the Court should assess such contributions (see for example Yeates (as Executor for Yeates) & Yeates [2013] FCWA 117 and Falcken & Weule [2019] FamCAFC 140 and other authorities referred to in those decisions). In this case I do not find the contribution should be regarded as entirely one made by the husband (as the husband contends) or a joint contribution (as the wife contends). Whilst it is a matter of weight, I find without determining an exact percentage, that this contribution should been seen as one made by the husband, to which the wife made a significant indirect and non-financial contribution.
In respect of the pool two interests, considering the myriad and diverse contributions of the parties, I assess the contribution based entitlements favour the husband in the proportions of 67% to the husband and 33% to the wife.
SECTION 75(2) FACTORS
I now consider whether the contribution based assessments earlier recorded should be adjusted for the relevant factors prescribed in s 75(2) of the Act, and make these further findings:
(a)The wife is six years younger than the husband and in good health. The husband has a number of pre-existing injuries and mental health challenges and the wife accepts that he cannot work into the future. Exhibit 1 contains some particulars of injuries for which he was compensated by the DVA. Some of the past and likely future effects of his injuries, at least from the husband’s perspective in 2018, are set out in his email to the wife of 21 October 2020 attaching a statement he wrote for psychologist Dr N at that time (see annexure “MP-3” of the wife’s trial affidavit). I accept, apart from the range of physical injuries, the husband’s PTSD suffered as a result of his service is an ongoing and likely permanent condition requiring long term therapeutic support;
(b)Comparing the parties’ current incomes revealed in their most recent Financial Statements, the husband says his gross income is $2,256 per week (approximately $117,000 per annum gross). He did not reveal the other benefits he continues to receive as a veteran in the form of expenses he claims and is able to be reimbursed for by the DVA. In cross-examination, Counsel for the wife referred to many regular payments he, which the husband says in cross-examination, received for claimable expenses in February and March 2023. It is clear these reimbursements are significant and in payments of over $4,000. The Court indicated it would be assisted if some documentary proof of both the claim and reimbursement was offered to the Court – perhaps from some subpoena records. None was forthcoming. I accept that the husband also received some type of support for X (from DVA, around $336 per fortnight) into his account, as X had no bank account. The husband’s income from his CSS benefit is indexed and likely to continue for the rest of his life. It cannot be commuted to a lump sum. Additionally, the husband receives a total permanent injury (“TPI”) pension from the DVA;
(c)The wife say her current income (excluding child support payments the husband pays) is $1,709 gross per week (approximately $88,860 gross per annum). Based on this evidence, I find the husband’s income is slightly superior, and with the benefits he receives (a financial resource available to him but no longer available to the wife), this factor requires an adjustment to the wife. I take into account that pursuant to the final parenting Orders made, the wife will have the care and control of Y (now aged 15 years) and in particular Z (now aged 7 and a half years) for some years to come. The child support payment payable by the husband only contributes a modest sum to the children’s needs. Furthermore, although the wife is able to work full time, the care responsibilities for the children reduce her work flexibility which will likely continue to some extent until Z completes his education. X, who lives with the father, will be 18 years of age within a couple of months and is more independent;
(d)I take into account the pension and allowances the husband receives (s 75(2)(f));
(e)Although Ms Carmody, no doubt with an eye to s 75(2)(k), contended that the wife’s career aspirations and ability to complete tertiary education have been impeded by the duration of the marriage and because of the past care arrangements of the children, there is no evidence (other than the loss of aspiration) as to what the wife would now be doing in the employment area if she had completed her tertiary education successfully;
(f)The terms of the property adjustment orders will, I anticipate, permit the husband to retain the former family home with a slightly larger mortgage, but with a secure future income and a superannuation entitlement exceeding $1,000,000, which in time he could access – either by way of a transition to retirement pension or, under current legislation, tax free lump sum payments – but not for some years. The wife, I anticipate, will have some cash; the ability to continue to work for many years to come and also a sizeable superannuation benefit exceeding $560,000, upon which she could build as she looks ultimately to retirement;
(g)Section 75(2)(o) requires the Court to consider “any fact or circumstances which in the opinion of the Court, the justice of the case requires to be taken into account”. I deal with two remaining issues, which I have considered, namely:
(i)although Ms Carmody, as Counsel for the wife, did not press for any Kennon & Kennon (1997) FLC 92-757 adjustment, on more than one occasion during submissions she contended that the Court should not ignore the difficult circumstances in which the wife carried out her responsibilities as a mother and wife. I accept that the relationship was at times unhappy, and where as the father had many opportunities to “escape” the day to day family pressures as he did (in the very important work for the ADF he was trained to perform) the wife did not get such relief. I accept increasingly after at least the PTSD diagnosis and the various injuries that had an adverse effect on the husband, the wife had to manage some difficult behaviour of the husband (often not intended but a consequence of his diagnosis and continual stressors arising from his army duties); and
(ii)the husband, in somewhat of a “throw away” comment at paragraph 102 of his trial affidavit says:
My parents are aged and have failing health. I have one sibling. My parents have a modest estate and when they pass way, I may receive part of their estate. [Ms Pinemore’s] family is very wealthy, her father recently passed away and left all his property and assets to [Ms Pinemore’s] mother. [Ms Pinemore] will most likely receive significant gifts and transfer of assets to her when her mother passes away.
If these comments were designed to enliven principles identified in decisions such as White & Tulloch v White (1995) FLC 92-640 and de Angelis (2003) FLC 93-133, they simply fail to do so. Apart from their vagueness (for example what does “very wealthy” even mean), if the husband was asking the Court to consider a likely pending future inheritance, he needed to adduce some real evidence. He did not do so.
When I consider these factors, some which favour the wife and some which favour the husband, I assess that it is appropriate to adjust the parties’ contribution based entitlements to the pool one interests in the wife’s favour by 8% or a differential of 16% or approximately $170,000.
I would make no adjustment to the contribution based entitlements in respect of the pool two interests.
WHAT ORDERS ACHIEVE JUSTICE AND EQUITY?
Based on the analysis above, the Court would use as a guide, a determination of whether to distribute pool one interests as to the husband 47% and the wife 53%. The pool two interests would result in a distribution as to 67% to the husband and 33% to the wife. However it is not the percentage that determines whether justice and equity for both parties is achieved, but the form of the orders.
If the distributions above were applied to the respective pools then:
(a)the husband’s entitlement to 47% of pool one and 67% of pool two would result in orders as follows:
C Street, Suburb D $900,000 Motor Vehicle 1 $32,800 Furniture and Specialist collection $10,095 Add back $144,000 $1,086,895 Less B Bank mortgage $419,924 $666,971 Less payment to the wife $156,241 47% of $1,086,661 $510,730 Plus 67% of pool two Current superannuation $1,623,648 Less superannuation split to the wife $466,783 $1,156,865
(b)The wife’s entitlements to 57% of pool one and 33% of pool two would result in orders as follows:
B Bank account $290,090 Motor Vehicle 2 $29,600 Add back $100,000 $419,690 Plus payment from husband $156,241 53% of $1,086,661 $575,931 Plus 33% of pool two Current superannuation $103,016 Plus superannuation split $466,783 $569,799
On this basis, for the husband to retain the Suburb D home, he will need to secure further funds of approximately $160,000, which when added to the current mortgage balance of $419,924 would combine to a total debt of approximately $580,000 which on the recent value of $900,000 of the home means a debt to equity ratio of approximately 65%. There is no evidence about whether any financial institution would lend the husband these additional funds so as to allow him retain the home. At an indicative rate of say 7%, the husband’s mortgage repayments may increase by over $1,000 per month. Again, whether the husband believes he is able to afford such repayments on his income, is ultimately a matter for him.
I regard orders which achieve this distribution are just and equitable. The orders I now pronounce will allow the husband 60 days from these orders to pay the wife the sum of $156,000 (rounded down). If he cannot do so, then the home will need to be sold.
The Court is satisfied (see Exhibit 6) that procedural fairness has been afforded to the Trustee of Superannuation Fund 1 such that a superannuation splitting order can be pronounced.
REMAINING PARENTING ISSUE
The parenting Orders made by consent on 17 July 2023 make no orders relating to X (who turns 18 years in October), but provide for the children Y (aged 15 years) and Z (aged seven and a half years) to live with the mother and for Y to be encouraged by the mother to spend time with the father “at the same time as Z spends with the father”.
For Z, the regime prescribed is essentially as follows:
(a)During a five day period in the week commencing 26 September 2023, the father will travel to City H and spend time with Z (and hopefully Y). All costs of travel and accommodation for this contact visit will be the father’s responsibility;
(b)After this visit, Z will spend time with the father in Brisbane:
(i)for five days in the first two weeks of the end of term four Christmas school holidays 2023, with the mother to accompany the child on the plane; and
(ii)thereafter, for half of all future school holidays as prescribed by Orders 7(c) and 7(d).
Order 12 provides for Z to travel as an unaccompanied minor “in accordance with the rules and regulations of the airline with which he is travelling”. He turns eight years of age in 2023 and no admissible evidence was adduced as to the various “rules and regulations” of any airlines.
At paragraphs 10 and 11 of the proposed parenting orders contained in his case outline, the father sought orders that:
(a)the father purchase a travel ticket to Brisbane for the children, and the mother purchase a travel ticket for the return journey, or in the alternative the parties meet the costs of a return ticket equally for an unaccompanied minor; and
(b)any costs of an accompanying adult are to be shared equally – the father anticipating Z may not be able to fly unaccompanied until he reaches the age of 12 years.
In circumstances where the parents did agree to the first Brisbane contact visit to occur in December 2023, at paragraph 8 of the mother’s proposed parenting orders contained in her case outline, the mother sought an order that the father meet all the costs of supervision and travel costs for the children from the mother’s residence to Brisbane including the costs of travel and accommodation for the mother and the children during the initial five day visit in December 2023. The father did not agree with this proposal – relying upon the obligation for the parties to meet costs equally. I understand the effect of the proposed orders of the mother is that the father bear the financial responsibility for all travel.
It is important for particularly Z, at his age, that he reconnect with his father. One consequence of the father’s reluctance since separation to travel to City H to see the children is that he has saved the costs of travelling to City H for a few years at least.
I take into account the findings I have made about the respective incomes of the parties. Neither could be said to be wealthy people. The costs of travel for a child to return from City H to Brisbane accompanied will be an impost on both parties if they are, as the father contends, to share the expenses equally. However, both parties asked the Court to make orders for Z (at least) to have four trips a year to Brisbane from 2024.
I take into account that the father pays modest amounts of child support. I accept that he may seek for costs imposed upon him to be taken into account when his liability to pay child support is assessed.
I also take into account that it is likely that Z will be required to be accompanied for a period, which adds further costs.
I propose to make orders that:
(a)the father meet the costs, as proposed by the mother, of the holiday in December 2023;
(b)thereafter the parents are to share equally, in the process I will order, the travel costs of Z and Y (if he elects to go), for the holidays at the end of term two (June holidays) and the end of term four (Christmas holidays) and any required accompanying adult; and
(c)the father will meet solely the travel costs of holidays at the end of term one (Easter holidays) and three (September holidays).
Considering the additional costs met by the mother in the day to day care of the children, and slightly higher income of the father, I regard this apportionment as appropriate. I accept, sadly, that the father may say he is unable to afford to meet the costs of travel solely for the two holiday periods identified. If that is the case, Z would not be able to travel to spend time with the father in Brisbane, however with both parents obliged by Court orders to contribute equally to the costs of the mid-year and longer end of year school holidays, if regrettably the father is unable to afford to pay for the extra holidays, Z’s relationship with the father would still develop through the other two occasions.
I make the orders as set out at the commencement of these Reasons. I regard the parents’ capacity to communicate as currently so poor that expecting them to communicate about equal sharing of a return airfare (and accompanying person) as problematic.
Although it may be “cheaper” to buy a return ticket with the one airline, and the parties can agree to do so and both benefit from that saving, until that ever occurred the most simple order that compels the father to pay for the child (and when required an adult accompanying the child) to travel to Brisbane and for the mother to pay the return costs, is less likely to lead to further conflict necessitating Court intervention.
COSTS ORDERS FOR INTERLOCUTORY APPLICATIONS
The wife sought orders for costs in respect of:
(a)the wife’s Application in a Case filed 16 March 2021;
(b)the husband’s Notice of Objection to Subpoena filed 28 April 2021;
(c)the husband’s Application in a Case filed 25 May 2021; and
(d)the husband’s Notice of Objection to Subpoena filed 25 July 2022.
Suffice to say, none of these events were before me and I have, as a result, little information about the context for any application and thereafter any decision made, I assume, by another judicial officer. Although the wife does deal with some of her applications in her affidavit. I have no response from the husband.
Also, I have no quantification of costs and, in a case like this, would be reluctant to expose the parties to a form of taxation of costs, as the wife, in her alternative where no agreement is reached, seeks. The types of applications identified are more likely to result in costs being fixed (r 12.7(1)(a)).
As the wife does press for costs orders, I will direct that she file within 21 days any further submissions as to costs including a quantification or amount sought (and why), with the husband having an opportunity to file submissions in response within 21 days thereafter.
Noting both parties, perhaps cautiously, sought orders for costs in the substantive proceedings, the same directions for costs submissions can apply to the substantive proceedings – so they can, in effect, all be dealt with at one time by the Court.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 11 August 2023
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