BLASS & BLASS
[2018] FCCA 2474
•12 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLASS & BLASS | [2018] FCCA 2474 |
| Catchwords: PROPERTY – Small pool with large superannuation component – order for the wife to be given first option to retain the home provided that she makes a payment to the husband – superannuation splitting order made. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA, 75, 79 Family Law (Superannuation) Regulations 2001 |
| Cases cited: Clauson & Clauson (1995) FLC 92-595 Cuneo & Cuneo (2006) FamCA 158 Kennon & Kennon (1997) FLC 92-757 Mazorski & Albright (2007) 37 FamLR 518 MRR v GR (2010) HCA 4 Norbis & Norbis (1986) 161 CLR 513 |
| Applicant: | MR BLASS |
| Respondent: | MS BLASS |
| File Number: | NCC 2831 of 2015 |
| Judgment of: | Judge Terry |
| Hearing dates: | 20 & 21 June 2017, 8 September 2017 and 20 December 2017 |
| Date of Last Submission: | 20 December 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 12 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bithrey |
| Solicitors for the Applicant: | Everingham Solomons Solicitors |
| Counsel for the Respondent: | Mr Kelly |
| Solicitors for the Respondent: | Michel & White Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Bateman |
| Solicitors for the Independent Children's Lawyer: | Emalene Gemmell Solicitor |
ORDERS
PARENTING
The parents shall have equal shared parental responsibility for [X] born 2010 (“[X]”) and [Y] born 2013 (“[Y]”) (“the children”).
The children shall live with the wife.
The children shall spend time with the husband as follows:
(a)Commencing on 19 October 2018 and from the first school term in 2019 commencing on the second Friday of each school term, each alternate weekend from 3.30pm or the conclusion of school on Friday until 5.00pm on Sunday.
(b)On the Father’s Day weekend each year and if Father’s Day falls on a weekend when the children would otherwise be with the wife the children shall spend the Father’s Day weekend with the husband and the following weekend with the wife noting for the avoidance of doubt that this will result in the children spending two consecutive weekends with the husband.
(c)For three separate periods of four nights in the 2018 Christmas school holidays as agreed between the parties and failing agreement:
(i)From 10.00am on 21 December 2018 until 2.00pm on 25 December 2018.
(ii)From 10.00am on 3 January 2019 until 10.00am on 7 January 2019; and
(iii)From 10.00am on 17 January 2019 until 10.00am on 21 January 2019.
(d)For a period of 5 nights in the 2019 Term 1 school holiday period from 9.00am on 20 April 2019 until 9.00am on 25 April 2019.
(e)Thereafter in the Term 1, 2 and 3 school holidays each year:
(i)In even numbered years from 9.00am on the first Saturday of the holidays to 9.00am on the second Saturday; and
(ii)In odd numbered years from 9.00am on the second Saturday until 9.00am on the following Saturday.
(f)Commencing in the 2019 Christmas school holiday period and each year thereafter from 9.00am on Saturday until 9.00am on the following Saturday commencing on the 2nd and 4th Saturday of the holiday period.
(g)At such additional or alternate times as the parties may agree in writing.
Time pursuant to orders 3(c) and 3(d) shall only take place if the husband confirms to the wife in writing not less than seven days before the periods are due to commence that he has taken leave from his employment for the period the children are to spend with him.
Notwithstanding any other order the children shall spend the Mother’s Day weekend with the wife each year and if Mother’s Day falls on a weekend when the children would otherwise be with the husband the children shall spend the Mother’s Day weekend with the wife and the following weekend with the husband noting for the avoidance of doubt that this will result in the children spending two consecutive weekends with the wife.
Notwithstanding any other order the children shall spend time with each of the parents during the Christmas period as follows:
(a)In even numbered years:
(i)With the husband from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and
(ii)With the wife from 2.00pm on Christmas Day until 2.00pm on Boxing Day.
(b)In odd numbered years:
(i)With the wife from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and
(ii)With the husband from 2.00pm on Christmas Day until 2.00pm on Boxing Day.
These orders shall be sufficient authority for each parent to obtain (at their own expense) from the following all information relevant to the children’s care, welfare, development and medical treatment:
(a)The Principal of any school, pre-school or day care facility attended by the children or either of them class photographs and certificates, copies of correspondence, newsletters and school reports.
(b)Any treating health professional, copies of all reports, prescriptions, correspondence and referrals.
Each party is restrained from speaking badly of the other party in the presence or hearing of the children or either of them or from allowing the children or either of them to be in the presence or hearing of any third party who is speaking badly about either parent.
Communication Book
Unless the parties otherwise agree in writing, the husband and the wife must communicate with each other in relation to issues involving either of the children by a communication book, which each party will sign at changeover, with the parent who is delivering the children or either of them to the other parent to deliver the communication book at the same time to the other parent.
Each of the parties are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent (or any member of the other parent’s household) in the communication book.
Dispute Resolution
If the parties seek to discuss issues in relation to which they have equal shared parental responsibility, then unless the parties otherwise agree in writing, the parties shall both attend mediation at an approved Family Dispute Resolution provider listed on the Attorney-General’s Family Pathways website, with the cost of any such mediation to be paid equally by the husband and the wife.
The wife and the husband must each:
(a)Keep the other advised, at all times, of his/her current residential address and contact telephone or landline and mobile number;
(b)Advise the other in writing of any change of address or contact telephone number(s) within seven (7) days of any such change;
(c)Advise the other immediately in the event of the child suffering from any serious illness or injury;
(d)Authorise any medical practitioner upon whom the children or either of them may attend from time to time to communicate with the husband in relation to either child’s medical condition and/or requirements; and
(e)Ensure that, except for the purposes of [Y] obtaining urgent medical or dental treatment, or pursuant to the direction of the school, [Y] attends the pre-school on no less than three (3) school days.
PROPERTY
Within 60 days of the date of these orders the wife shall:
(a)Do all acts and things required to discharge the mortgage registered in favour of Ms L over Property A being the whole of the land in Folio Identifier (omitted) (“the property”).
(b)Pay the husband the sum of $30,020.00.
The wife shall thereafter indemnify the husband and keep him indemnified from liability for the mortgage and for all rates taxes and outgoings owing in respect of the property.
If the wife fails to comply with order (13) the husband shall have the option of retaining the property provided that within a further 60 days he:
(a)Refinances into his sole name the mortgage secured over the property in favour of Ms L.
(b)Pays the wife the sum of $94,011.00.
Contemporaneously with the husband complying with Order (15) the wife shall sign all documents and do all acts and things required to transfer to the husband the whole of her right title and interest in the property.
If the husband fails to comply with Order (15) or gives the wife notice in writing prior to the expiration of the 60 days referred to in Order (15) that he does not wish to retain the property the parties shall forthwith do all acts and things and sign all documents required to sell the property and for that purpose:
(a)the property shall be listed for sale with a real estate agent agreed between the parties;
(b)in the event that the parties cannot agree on the nomination of such agent they shall jointly approach the President of the Real Estate Institute of New South Wales and accept his or her nomination of a real estate agent to sell the property;
(c)in the event the parties are unable to agree on a listing price, the time of listing, the method of sale and conditions of such sale in respect of the property they shall accept the recommendations of the real estate agent appointed pursuant to these orders for the sale of the property in respect of each such matter; and
(d)these orders are authorisation for the real estate agent to provide the respondent with all information he may request about the sale from time to time.
Upon completion of the sale the proceeds of sale shall be applied as follows:
(a)in payment of the costs and expenses of sale including agent's commission and conveyancing costs;
(b)in payment of adjustments, if any;
(c)in payment of the amount owing to the mortgagee for the mortgage secured over the property.
(d)the balance as to 40% less $22,392.60 to the husband and 60% plus $22,392.60 to the wife.
The wife shall have the sole right to occupy the property pending its transfer or sale provided that she pays the rates and outgoings as they fall due and makes the mortgage payments.
If the wife has failed to make any of the mortgage payments since the proceedings concluded in September 2017 the amount owing as a result of that default shall be deducted from the amount the husband is required to pay the wife pursuant to Order (15) or the amount the wife is entitled to receive pursuant to Order (18).
Orders (22) to (25) of these orders are binding on the Trustee of Superannuation A.
The base amount allocated to MS BLASS (“the wife”) out of the interest of MR BLASS (“the husband”) in Superannuation A is $67,093.80.
Pursuant to s.90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of s.90ME of the Act becomes payable in respect of the interest of the husband in Superannuation A the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount referred to in Order (22) above and that there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
Order (23) has effect from the operative time.
The operative time for the purposes of Order (23) of these orders is four (4) business days after the date of service of these Orders upon the Trustee of Superannuation A.
Subject to the above orders each party is otherwise declared the owner of all property and superannuation in their possession or under their control.
Pursuant to s.106A of the Family Law Act 1975 in the event that either party fails, neglects or refuses to execute any deed, instrument or document to give validity and effect to these orders a Registrar of the Federal Circuit Court at Newcastle is appointed to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.
IT IS NOTED that publication of this judgment under the pseudonym Blass & Blass is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2831 of 2015
| MR BLASS |
Applicant
And
| MS BLASS |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting arrangements for [X], 8 and [Y], 5 and competing applications for a property settlement.
The parties had an eight year marriage. The property pool is modest and largely consists of the former matrimonial home with equity of about $125,000.00 which has been occupied by the wife since the separation and superannuation of about $177,000.00 which is largely in the husband’s name.
The dispute in the property matter originally turned largely on who should retain the home and whether, if the wife retained it, she should be required to pay the husband some cash and accept a superannuation splitting order or whether she should be able to retain it without making a cash payment leaving the husband with little but his superannuation.
However the husband conceded during the trial that the wife should have first option to retain the home and the wife conceded that she should pay the husband some cash so the dispute narrowed considerably.
The dispute in the parenting matter was about the time the children should spend with the husband. Both parties sought an order for equal shared parental responsibility and it was not in dispute that the children should continue to live primarily with the wife and at the beginning of the hearing final orders were made by consent in relation to both of those matters.
Even then the dispute was fairly narrow because the parties agreed that the children should spend time with the husband each alternate weekend and on one afternoon each alternate week from 4.00pm or after school until 7.00pm.
They also agreed that the children should spend time with the husband during the school holidays although the wife’s proposal was much more restrictive than the husband’s.
In their written submissions the parties put forward proposals about the time the children were to spend with the husband prior to 28 January 2018 and after 28 January 2018. The wife’s counsel’s submissions were not filed until 14 December 2017. As it a result it was not possible to complete a judgment prior to 28 January 2018 and the parties’ proposals for the period prior to this are now irrelevant.
To clearly demonstrate the differences between the proposals for the period after 28 January 2018 I set them out as follows:
Time during school terms
Husband:
Until January 2019 [X] spend time with him each alternate weekend from after school Friday until the commencement of school Monday and [Y] spend time with him from after school or 4pm on Friday until Sunday evening
From January 2019 both children spend time with him each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday
Commencing immediately and continuing that both children spend time with him each alternate Thursday from 4.00pm to 7.00pm.
Wife:
Commencing immediately and continuing indefinitely both children spend time with the husband each alternate weekend from noon on Saturday until noon on Sunday and each alternate Wednesday from the conclusion of school until 7.00pm. (During cross-examination the wife said that she would be happy for the afternoon time each alternate week to be on Thursday.)
School holidays
Husband:
Half of each school holiday period.
Wife:
Three nights/days with the husband each mid-year school holiday period and 7 nights in the Christmas school holidays with Christmas Day alternating.
When the trial concluded the wife was still breastfeeding [Y] notwithstanding that she had turned 4. It was conceded during the trial however that [Y] did not rely on breast milk for nourishment and the wife’s counsel in written submissions said the fact that [Y] was still breastfed was not determinative of the issue of the time the children should spend with the husband.
The issue the wife submitted was determinative was that the husband was violent and short-tempered during his relationship with her and in particular was violent to her older daughters.
The husband made some admissions about his treatment of his step-daughters but it was his case that he posed no risk of harm to his children and that the problem in the case was that the wife so relished being a mother that she had great difficulty sharing the children with anyone.
The Independent Children’s Lawyer’s proposal lay between those of the husband and the wife. She proposed that [X] spend time with the husband each alternate weekend from 3.30pm on Friday until 5.00pm on Sunday during school terms and that from 22 July 2018 (which has now passed) [Y] spend the same time with him.
The Independent Children’s Lawyer proposed that subject to the husband being free of employment [X] spend half of the Term 1, 2 and 3 school holidays with him and that from the age of 5 (which she has now attained) [Y] spend the same time with him.
The Independent Children’s Lawyer proposed that the children spend the second and fourth week of each Christmas school holidays with the husband, again subject to him being free of employment.
The evidence
The husband relied on his second amended initiating application filed on 13 June 2017, his affidavit filed on 15 June 2017 and his financial statement filed on 9 June 2017.
The husband proposed a splitting order and provided evidence that the trustee of his fund had been given procedural fairness.
The wife relied on her second amended response filed on 15 June 2017, her affidavit and financial statement filed on 15 June 2017, the affidavits of her daughters [C] and [D] filed on 15 June 2017 and the affidavit of the maternal grandmother Ms L filed on 15 June 2017.
A family report was prepared by Ms A, a Regulation 7 Family Consultant on 19 April 2017.
[C] was not required for cross-examination but the remaining witnesses were cross-examined.
I apologise for the delay in delivery of this decision. There was a delay in the wife’s counsel filing written submissions which did not help but the delay for the last nine months is due to me and my attempt to juggle dealing with older judgments from 2017 which was a difficult year in terms of judicial resources in Newcastle and delivering judgments in newer matters in a timely fashion. I understand that this explanation is likely to be of little comfort to the parties.
Background
The parties commenced a relationship in 2007 and married 2008. They have 2 children, [X] born on 2010 and [Y] born 2013. They separated on 5 June 2015 and thus had a relationship/marriage of about 8 years.
The wife has two older children, [C] born 1996 and [D] born on 1997. They were 11 and 9 when the relationship commenced and lived with the parties throughout their relationship.
For the first 12 months of the relationship the parties lived with the maternal grandparents. They made some contribution to living costs while there but the husband agreed in cross-examination that living with the maternal grandparents allowed them to save.
In November 2018 the parties bought Property A. They each contributed about $45,000.00 and the maternal grandmother provided $250,000.00. A mortgage was signed by the parties in favour of the maternal grandmother and the parties made mortgage payments to her throughout the relationship.
The parties were both somewhat older and settled in their ways when they commenced the relationship and the differences in their approaches to parenting and income earning became apparent quite early on and caused conflict.
The wife loves the idea of being a mother. She was content to stay at home for a long period parenting [D] and [C]. After [X] and [Y] were born she was more than content and indeed considered it essential that she devote herself exclusively to her parenting role.
The husband had no experience as a parent prior to the birth of [X] and he did not cope well with parenting [C] and [D]. He also became increasingly resentful as time went on that he was the only income earner in the household and was paying all the expenses for the wife, his stepdaughters and when they were born [X] and [Y].
The husband’s behaviour to the wife, to [D] and to a lesser extent to [C] became abusive and violent and there was an occasion when the husband kicked [C] and the police were called.
The parties separated in 5 June 2015 when the husband left the former matrimonial home. The wife and her four children remained living there.
The husband filed an application for parenting and property orders in late 2015 when [Y] was 2 and [X] 5. Interim orders were made by consent for the husband to spend time with the children and since August 2016 [X] but not [Y] has been spending overnight time with the husband.
Parenting
The children’s best interests
Any orders I make about the children must be determined by treating their best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act1975 contain the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations in s.60CC(2) are:
a) The benefit to the children of having a relationship with each of their parents; and
b) The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The additional considerations in s.60CC(3) include things as the children’s views, the nature of their relationship with each of their parents, the likely effect of a change in their circumstances, the capacity of each parent to provide for the needs of the children and whether there has been family violence.
I intend to make findings about the additional considerations first before returning to the primary considerations.
The first additional consideration is any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.
The children were seen by the family report writer on 16 March 2017 when [X] was 6 and [Y] 4. [Y] was too young to be interviewed. [X] did not have any precise views about parenting arrangements but the family consultant did report as follows:
[X] said she liked ‘being at Daddy’s house because he plays with us’ and she likes to go there. She likes living with Mummy because ‘Mummy looks after me.’ She would like ‘Mummy and Daddy to live together’ so she would have a Mummy and Daddy together but somewhat reluctantly said they did not like each other.[1]
[1] Paragraph 68 of the Family Report.
[X]’s views are relevant in that they do not suggest that she would have any trouble with an order that she spend time with the husband as he or the Independent Children’s Lawyer proposed but they are not very precise and they certainly do not determine the outcome.
I must consider the nature of the relationship of the children with each of their parents and any other relevant person.
The children are closely attached to their mother. There is absolutely no doubt that she is their primary attachment figure.
The children also have a good relationship with their father. I have referred to [X]’s views and the family consultant also said as follows:
When observed with their father [X] was clearly pleased to see her father and interacted well with him. [Y] was reticent at first but settled happily once she felt safe. Mr Blass had brought fruit for the girls and they were happy to eat it. He discussed school based activities with [X] and three year old related activities with [Y] in an appropriate age related way. He discussed their cousins in Inverell with them.
[X] was somewhat distressed when leaving Mr Blass whereas [Y] did not demonstrate any distress. They interacted well with their mother and spent the observational assessment completing puzzles. There was limited verbal communication because of this.[2]
[2] See Paragraphs 66 and 67 of the Family Report.
The children have a good relationship with their older sisters [D] and [C] but they are 21 and 22 respectively and while they are closely attached to their mother and spend a good deal of time in her home they have lives of their own.
The children also have a good relationship with the maternal grandmother.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the children, communicate with the children or make decisions about the children.
This was not an issue in this case.
I must consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The wife financially supports the children on a day to day basis. The husband pays assessed child support at a very reasonable rate. There was no suggestion that his application or the wife’s opposition to the orders he sought were based on child support considerations.
I must consider the likely effect of any change in the children’s circumstances including the likely effect on the children of any separation from either of their parents or any other child or other person (including any grandparent or other relative of the children), with whom he or she has been living.
The husband proposed a more extensive change in the amount of time the children spent with him overnight than the wife proposed but given that [X] is 8 and [Y] 5 and that they were both observed at the family report interviews to relate well to him, it is difficult to see why they would not cope with the amount of time the husband proposed.
The family report writer, who took quite a cautious approach to the matter conceded that [X], who was 7 at the time of trial, should be able to cope with spending three nights with the husband on alternate weekends and gave as a reason for not recommending more time not [X]’s coping capacity but the desirability of the time for one child not getting too much out of sync for the time with the other.
An immediate increase in time as proposed by the Independent Children’s Lawyer will because of the delay in the delivery of this decision be quite a jump for [Y] who pursuant to the interim orders made on 12 August 2016 is spending no overnight time with the father although she is spending a full day on Saturday and on Sunday each four weeks and shorter time on the other alternate weekend in each four weeks.
It will also be a jump for [X] from one night to two. However given that the children are now 8 and 5, have a good relationship with the father and will be company for each other it is difficult to see why they would not cope with spending that amount of time with the husband. Ms A recommended in her report that [Y] spend two nights per fortnight with her father once she turned 5.
An increase in the time as proposed by the husband would be an even bigger leap from the time occurring pursuant to the 2016 orders. The children might well cope with it given their ages but if the three nights are introduced there is much to be said for it to occur after the children have become used to spending two nights per fortnight with the father.
The wife said that [Y] and [X] both needed more time to adjust to spending more extensive time with the husband. She alleged that [X] was either anxious about spending time with the husband as a result of having observed family violence.
There was no independent evidence of this and the observation at the family report interviews suggests otherwise.
The advantage of the slightly longer time the husband or even the Independent Children’s Lawyer proposed is that it will allow the husband to have a more extensive role in the children’s lives. He can pick them up from school on a Friday and if the husband’s proposal is acceded to, take them to school on a Monday morning. He can be seen by the children’s teachers and their friends and identified as their father, and he will have a greater opportunity be involved in some caring activities as well as just fun activities.
The wife’s proposal that for the rest of the children’s childhood and adolescence they spend time with the husband only from noon on Saturday to noon on Sunday is impossible to justify unless there is some significant safety issue and given that the wife proposes a 24 hour period including overnight time and periods of several days in school holidays it is somewhat difficult to see how this is arguable.
I must consider the practical difficulty and expense of the children spending time with a parent but that is not a relevant consideration in this case.
I must consider the capacity of each parent and any other relevant person (including any grandparent or other relative of the children) to provide for the needs of the children including their intellectual and emotional needs.
The wife is the children’s primary carer and she provides good day to day care for them. The family report writer observed them to be fit and healthy children. At the time of trial [X] was attending school and there were no issues with her school attendance.
The wife does not use drugs or abuse alcohol and she has no mental health issues.
[X] is now weaned but the wife was still breastfeeding her in June 2017 after the child had turned 7 which is an unusual situation in our society, indeed the fact that [Y] at the age of 4 was still being breastfed is also unusual in our society.
The wife conceded that she was only breastfeeding [Y] for comfort reasons and that the child did not need to be breastfed for nourishment.
There was no expert evidence on this issue and it was clear from the submissions by the wife’s counsel that he considered it was not open to the court to judge the wife for her decision to continue to breastfeed the children. However the wife’s decision to breastfeed the children is out of line with practice in 21st century Australia unless there is some pocket of difference because of people belonging to different cultural groups.
It is very difficult not to be concerned that [X] and indeed [Y] might be the subject of some teasing if it was discovered by their peers that the wife was still breastfeeding them.
The wife ceased breastfeeding [X] prior to the trial and her counsel conceded in the end that the issue of [Y] being breastfed was not relevant to whether the court should order the time sought by the husband or the time sought by the wife.
The husband has the capacity to care for the children on a day to day basis and to get them to and from school.
The husband admitted smacking [X] and [Y] during the relationship and the wife referred to some instances when she felt that [X] was harshly punished but nothing which has occurred post separation has caused her to withhold the children or amend the orders she sought and [X] related very well to the husband at the family report interviews.
In conversation with the family report writer the wife raised a concern about the husband’s use of alcohol but this was not raised as an issue at trial and it was not asserted that the husband used drugs or had any mental health issues.
The husband came to parenting late and did not adapt at all well to parenting teenagers. [D] admitted that she was oppositional and difficult with the husband but the husband lashed out at [D] and sometimes [C] in a totally unacceptable way and adopted harsh and restrictive practices around such things as lights and food.
The Independent Children’s Lawyer submitted that the husband appeared to be genuinely remorseful for his behaviour towards [C] and [D]. I accept this to a degree although he also minimised what occurred.
I have a residual concern given that the husband had issues about food and use of electricity that he might find it difficult to appropriately parent his own children when they are at an age when they talk back to him rather than meekly do what he wants and I will refer to this later in the judgment when assessing risk of harm.
I must consider the children’s maturity, sex and background but there is nothing under this heading which has not already been discussed during the course of the judgment.
I must consider any family violence involving the children or a member of the children’s family.
The wife complained that during the relationship there was:
Continuous physical violence, bullying, swearing and threatening behaviour by the husband toward the wife, the subject children and the subject children’s two older sisters…[3]
[3] Paragraph 41 of the wife’s written submissions.
This is a very broad statement and there was no evidence of any physical violence being directed at the wife. Her evidence was that the husband subjected her to vile verbal abuse and threats and intimidation, that he was verbally abusive and physically violent to [D] and [C] and that [X] and [Y] were exposed to this violence.
The wife also alleged that the husband isolated her from family and friends but this allegation did not rise above bare assertion and I cannot find that this occurred. [D] and [C] gave evidence that the husband tried to stop the wife going places with them but this is related to his abuse of [D] and [C].
The wife gave detailed evidence about the husband calling her names such as “fucking sponge”, telling her she was fucked in the head and saying things such as “this is my lawn and I make the rules here and I am God” and “it is no wonder your ex-partner punched you in the head.”
[D] alleged that the husband called her abusive names such as “a cunt of a thing”, “fucking idiot” and “a fucking bitch”. She said that he would frequently yell including yelling in her face, that he squeezed her wrist so hard on one occasion that it cause her to drop her phone and have a sore wrist for four weeks afterward and held a knife up to her and said “if you touch my soup I’ll cut your fucking fingers off”.
[D] said the husband tipped her out of a camping chair while the parties were camping at Location A and then shoved her, hit her, kicked her, pushed her into a ladder and shoved her to the ground.
She said that the husband shoved her into a dining chair causing her to tip over, twisted her arm behind her back, shoved her onto the cement causing a graze, shoved her into the kitchen bench and grabbed her neck causing bruising and would frequently say “this is my fucking house and I’m the boss and I make the rules. I’m God here.”
[C] gave evidence that the husband was prone to yelling and making threats and that although his physical abuse was mainly directed at [D] it was also occasionally directed at her.
She alleged that on a number of occasions he pulled her arm, kicked her and hit her on the side of the face.
In February 2014 the husband kicked [C] in the backside and the wife called the police. The wife said that she called the police primarily to deter the husband from behaving in that way again.
[C] did not allege that there was any other occasions when the husband physically abused her but she did allege the husband frequently called her names such as “fucking dickhead” and called her and [D] “selfish fucking bitches” and that he would try to stop the wife going places with [C] and [D] and threaten to disable the car to stop her doing so.
The husband conceded that in February 2014 he kicked [C] in the backside but he largely denied the remainder of the allegations against him. He admitted that he was verbally abusive to [C] and [D] although abusive is probably my description for the kind of name calling he admitted rather than the way the husband sees it.
The husband’s counsel submitted that the court should not accept that there were any other incidents of family violence of a similar nature to the kicking in February 2014 because there were no other occasions when the wife called the police.
This is not a strong argument because many victims of family violence are slow to make reports to police.
He also submitted that the court should disbelieve the wife’s more extreme allegations of family violence because when she was asked about whether there was any family violence in the relationship when she was in hospital after giving birth to [X] and [Y] she answered in the negative.
This is also not a strong point. Many women in this situation do not disclose family violence because to do so might well mean immediate intervention of a social worker and perhaps them not being able to go home from hospital with their baby.
The husband’s counsel submitted that the fact that the wife agreed to an order for equal shared parental responsibility suggested that any family violence the husband committed against her daughters must not have been as severe as she made out at trial.
This is not a strong argument as one thing does not necessarily follow from the other.
I am satisfied that to a large extent the allegations the wife, [D] and [C] made about the husband’s behaviour should be accepted.
The husband admitted kicking [C] and he admitted some name calling and verbal abuse (my term not his). There may be some element of reconstruction and exaggeration in the evidence of the wife and the girls but the evidence they gave about the abuse and violence was detailed and convincing and the husband made some limited admissions.
I am satisfied that he minimised the extent of his abusive and violent behaviour. He does not see himself as a bad or abusive man, he sees himself as a man pushed to the limit by provocative behaviour by teenagers and his self-image may require that he makes few admissions about his behaviour. I am satisfied that he was harsh, abusive and violent to his stepdaughters and harsh, abusive, threatening and intimidating to his wife probably not throughout but certainly during the last three or four years of the relationship.
The husband showed no capacity to empathise with how the wife must feel about his actions. This issue between the parties is therefore never going to heal itself but the difficulty is how to factor the findings about what happened into the decision about time in light of the fact that the wife consented to an order for equal shared parental responsibility and proposed that the children spend regular time with the husband.
A major issue I need to consider is whether the husband’s behaviour to [D] and [C] means that [X] and [Y] are likely to be at risk of harm from him in the future. If there was a real risk of the husband acting out toward [X] and [Y] or of them not coping with orders for a particular length of time it would be preferable to make orders which were least likely to cause them not to cope which could result in a situation where the husband might be pushed beyond his limits and act out against the children because they irritated him.
I cannot find that there is an unacceptable risk of this at present because it does seem as if the husband’s behaviour arose out of the situation he found himself in. He does not have convictions for violence or a history of losing jobs because of his inability to keep his temper or a history of being violent or abusive in other domestic relationships.
To say this is not to excuse his violence. He is responsible for his behaviour; the wife and her daughters are not to blame and his minimisation of his behaviour is gravely concerning but I have to assess future risk to the children.
There is nothing to suggest that if the children spent alternate weekends from Friday to Monday with the husband as opposed to spending alternate weekends from noon on Saturday to noon on Sunday with him that he would be stretched beyond any capacity to cope with parenting his young daughters.
There is a question about how the husband may react if [X] and [Y] become challenging as teenagers but that is five years or more away and is not sufficient reason to restrict their time with their father now.
Another concern which arises from the husband’s behaviour is what sort of role model he is for his daughters given his failure to accept responsibility for his behaviour and the misogynist attitudes evident in his abusive comments to his wife and stepdaughters but it is a concern I may not be able to adequately factor in given that the wife proposed that the husband spend regular time with his daughters and did not propose that he be required to do any courses such as the ‘Facing Up’ or ‘Taking Responsibility’ course. Limiting the husband’s time with his daughters does not address this issue.
I must consider whether there are any family violence orders but there have never been any family violence orders in this case.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parent.
This is not relevant as a separate consideration.
I must consider whether it is preferable to consider the order least likely to lead to further proceedings.
Orders for more time than the wife proposes carry some potential risk of the wife finding reasons to undermine them which could lead to further court proceedings.
If I make the very restrictive orders the wife seeks there is a risk of further proceedings because the husband might after a few years if it has all been going well bring another application. That might especially be likely to occur if the children were not able to understand as they got older why they were spending such limited time with their husband.
I must consider any other relevant matter but there are none.
I then have to return to the primary considerations which are the benefit to the children of having a meaningful relationship with each of their parents and the need to protect the children from physical and psychological harm from being exposed to or subjected to abuse neglect or family violence.
S.60CC (2A) provides that the court must in applying these considerations give greater weight to the latter.
A meaningful relationship has been defined as one which is significant, valuable and important to the child.[4]
[4] Mazorski & Albright (2007) 37 FamLR 518
The wife proposed that the children spend limited time with the husband but if those orders were made the husband could still have a relationship with the children which was important, significant and valuable to them. It has been stressed in the decided cases that the concept of a meaningful relationship is a qualitative one and not a quantitative one, and in theory he could increase the quality of his relationship with the children by attending school events or extra-curricular activities as well as having them in his care at defined times.
The children’s relationship with the husband would be different if he spent quite limited time with them one on one but it could still be meaningful.
The family report writer was of the opinion that the wife wanted to keep the parenting role to herself and expressed concern that the wife wished to keep the children dependent on her. She felt that there was a flavour in this case of the wife not unreservedly supporting the children having a relationship with the husband.
At the time of trial she was still breastfeeding [Y] who was four years of age and when the proceedings commenced she was still breastfeeding [X] who had turned 7. Prior to the proceedings ending the wife had weaned [X] and she did not ultimately argue at trial that [Y]’s time with the husband should be limited because she was being breastfed but this was her evidence early in the proceedings.
I share the view of the Independent Children’s Lawyer that the wife continuing to breastfeed [X] and [Y] long after the time when she weaned her older children suggests that she has been wanting to create some roadblocks to the husband spending time with the children. I am also not convinced that the wife fully supports the children having a relationship with the husband and she does enjoy her parenting role.
However the situation is complex because the husband’s treatment of her and of [D] and [C] must make it difficult for the wife to wholeheartedly embrace him as an equal but different parent and the problem in this case as I see it is not one of how to deal with a gatekeeping mother but how to make appropriate orders given my findings about the husband’s violence.
There is no evidence that at the present time the children would be at risk of abuse, neglect or family violence in the care of either of their parents. There is a risk that the husband might not handle any oppositional behaviour by the children as teenagers well but it is not a risk which needs to be protected against or indeed would be protected against by restricting his time with them at present.
Conclusion
This is a troubling and difficult case for all the narrowness of the dispute.
The husband was violent to his wife and his step-daughters and exposed [X] and [Y] to family violence. He made some admissions about his behaviour but he has not fully accepted responsibility for it; during his interview with the family report writer and at trial he was still seeking to excuse it as arising from stress and inexperience as a parent.
The husband sought counselling toward the end of the relationship and the counsellor’s notes suggest that he understood that his behaviour was unacceptable and was damaging his family. However there was no evidence that he had taken steps to confront the intolerance of other’s perceived shortcomings and the misogynist attitudes the family report writer referred to in her report when she said as follows:
It was apparent that Mr Blass used inappropriate language in the presence of all the family, it was apparent he was creating arguments over relatively small incidents such as shoes being left in the wrong place. He appeared to have some difficulty with self-control and it was also apparent that he was concerned about finances. Some of the remarks he allegedly made were anti female and it was alleged that he consistently stated it was his house and he was in control that is ‘if they did not like it they could fuck off.’ He consistently stated he had not been physically violent with Ms Blass but agreed that he had smacked [C] and [D], the older girls and ‘had booted [C] up the bum on one occasion.’ [This was the incident when the police were called.][5]
[5] Family Report paragraph 16
The husband’s case for why the court should nevertheless make the orders he sought was as follows.
The fact that he had not addressed the concerns raised by paragraph 16 of the Family Report should not concern the court because it could rest assured that he would never behave in a violent or disrespectful way to his own daughters. There was no evidence that he had behaved harshly to them or exposed them to family violence since the relationship ended and the court could not find that they were at any risk of harm in his care and it certainly could not find that the children would at less risk of harm (although he did not concede they were at risk of harm anyway) if they spent the more limited time with him that the wife proposed rather than the slightly longer time he proposed.
The children had a good relationship with him, as confirmed by the fact that [X] told the family consultant that she enjoyed spending time with him and [Y] was happy to play with him at the report interviews, and they were old enough at 8 and 5 to cope emotionally with the time with him and separation from their mother entailed in the orders he proposed.
There was no evidence that the wife would be unable to cope if orders were made for the children to spend more extensive time with him than the she proposed and the three nights and two full days on weekends rather than one night and two half days would ensure that he was able to provide care and nurture for the children as well as have fun with them. It would also give proper scope for him to ensure that the children had a relationship with their paternal family.
Finally the amount of time he sought were quite modest. It was not as if he was trying to muscle in and take over from the wife and by extension continue to behave in a controlling and overbearing fashion. All he wanted was to have a role in his children’s lives and the court should not hesitate to make the quite modest orders he sought.
There is some merit in all of those points and a concern I have about making the restrictive orders the wife proposed, especially in regard to school holidays, is that if I do so and the husband is right and everything goes smoothly for him and his daughters year in and year out his daughters may well as they get older become increasingly puzzled about why they cannot spend longer with him. The parents separated when the children were 4 and 2. The children, and particularly [Y], are unlikely to hold in their minds the same memory of the distressing events with their sisters which the mother does. If things go well they may ask to spend more time with the husband as they get older and there is then a risk the husband may bring the matter back to court.
Making more restrictive orders also means that the husband is forever damned by his past behaviour and is never given a chance to show that he can behave differently, in circumstances where unacceptable risk of harm to the children at present cannot be established.
I agree that I cannot justify making the restrictive orders the wife seeks. I cannot justify it on a risk of harm basis or any other basis.
In light of this I have considered making the orders the husband proposed but I am satisfied that the appropriate course is to make the orders (with some modifications) proposed by the Independent Children’s Lawyer which provide for more time than the wife proposed but less than the husband proposed.
One reason for that is that while I cannot find that the wife will fail to cope if the children spend an extra night with the husband each alternate weekend I cannot blame her for being concerned about what the future might hold in respect of his treatment of the children given his limited admissions and limited insight into his own behaviour and a slightly shorter time may assist in ensuring that her suspicion and worry does not cause her to overreact leading to contravention proceedings or further proceedings in this court in the future.
I am also conscious of the fact that two nights each alternate weekend was the proposal of the family report writer and in my view her recommendation should be given weight.
The wife’s counsel was strongly critical of the family report writer and accused her of failing to have regard to the wife’s documents and failing to have proper regard to the family violence in this case. I do not accept that these are valid criticisms.
I may not agree with the extent to which the family report writer excused the husband’s behaviour but she clearly recognised the difficulties in the case: on the one hand the need, which the wife supported, for the children to have a relationship with the husband and on the other of the children being protected from family violence and misogynist attitudes. She put it this way in her report:
When there are allegations of family violence and one parent has been the significant primary carer situations become even more problematic. The decision about spending time with the alleged perpetrator and deciding on the least detrimental option for children can be fraught with difficulty for decision makers and courts.[6]
[6] Family Report paragraph 72
The recommendation she made in her report was as follows:
[X] and [Y] live with their wife but spend time with their husband on alternate weekends. [X] to have overnight time on Friday and Saturday nights. [Y] to spend from 9 until 5 on Saturday and Sunday. [Y] to spend one night with her husband in 2018 and two nights with [X] and her father once she turns 5.[7]
[7] Paragraph 85 of the Family Report.
The family report writer conceded in cross examination by the husband’s counsel that given [X]’s age it would not be too difficult for her to spend three rather than two nights per fortnight with the husband. She said that her concern about this was that it may not be possible to progress [Y]’s time quickly and that it was preferable to make orders for the children’s time to be reasonably similar to avoid sibling rivalry.
However I have to factor in other matters besides the children’s ages and I am satisfied that the original proposal by the family report writer for two nights each alternate weekend is to be preferred and I intend to make the orders for time during school terms proposed by the Independent Children’s Lawyer.
I am conscious of the fact that an order for [Y] to spend two nights each alternate weekend with the husband commencing immediately will be a big increase in time for her but she has turned 5 and will be going with her sister and properly supported by encouragement from both her parents there is no reason why she should not cope with this increase in time.
I did consider staging this in but this would have meant increasing it at or about the same time [Y] commenced kindergarten and it is better if she does not have to cope with too many changes at the same time.
If the husband plans activities for the children and keeps them busy they should be able to cope with the increased weekend time and with the four night blocks which I propose to order for the upcoming Christmas school holidays.
I intend to start with four night blocks for both children in the 2018 Christmas school holidays then order a five night block in the Term 1 2019 school holidays and then order that time occur in the Term 1, 2 and 3 school holidays as proposed by the Independent Children’s Lawyer. It is better to build the holiday time rather than to jump straight into week blocks with the risk that if the children exhibit any distress the mother might react in a way which too easily brings the matter back to court.
I do not intend to make the blanket orders the Independent Children’s Lawyer proposed for holiday time to be based on the husband being “free from his employment”.
I intend to order that for the forthcoming school holidays and the Term 1, 2019 holiday period the husband ensure that he does not work during the time the children are with him. Given that the periods will be short and the husband has notice he should be able to organise that and it will help the children adjust if he is personally available. Thereafter I will not restrict his choice about what he does. Hopefully he will take leave as often as he can but sometimes school holiday time is also an opportunity for children to spend time with paternal family they do not regularly see and if a parent cannot take leave for the entire holiday periods the children are to spend with them it is not automatically a bad thing for children.
There is no perfect solution in this matter and the orders I intend to make also carry a risk of the children pressing for more time and the husband bringing the matter back to court but they provide for a much more reasonable amount of holiday time and the husband has otherwise only ever wanted weekend time. I am not convinced that the matter is highly likely to come back to court because of an argument about Sunday nights and on balance I consider them the appropriate orders.
I acknowledge that the orders I intend to make do not come within the definition of substantial and significant time in s.65DAA (3). However as the Full Court said in MRR & GR (referring to equal time but it applies also to substantial and significant time):
Section 65DAA of the Family Law Act is expressed in imperative terms. It obliges the Court to consider both the question of whether it is in the best interests of the child to spend equal time with each parent and the question of whether it is reasonably practicable that the child spend equal time with each of them. It is only when both questions are answered in the affirmative that consideration may be given under paragraph (c) for the making of the order.[8]
[8] MRR v GR (2010) HCA 4
For the reasons set out above I cannot be satisfied that making the orders the husband proposed, which would be an order for substantial and significant time although at the lower end of the range, would be in the children’s best interests and I decline to make them.
In terms of the orders I will repeat the orders for sole parental responsibility and live with the mother in the orders I make as this ensures that the parties only have one order and not a set of orders. Otherwise the orders made in accordance with these reasons are set out at the beginning of this judgement.
Property
The assets and liabilities
The parties agreed on the asset pool. The assets are as follows:
Description
Ownership
Value
Property A
Joint
$356,000.00
(omitted) Shares
Husband
$28,021.00
(omitted) Motorbike
Husband
$1,000.00
Household Contents
Husband
$3,500.00
Tools
Husband
$2,000.00
(omitted) Motor Vehicle
Wife
$800.00
Household Contents
Wife
$2,000.00
Total
$393,321.00
The liabilities are as follows:
Description
Ownership
Value
Mortgage to Ms L
Joint
$231,969.00
Total
$231,969.00
The parties had the following superannuation:
Description
Ownership
Value
Superannuation A
Husband
$173,434.00
Superannuation B
Wife
$3,800.00
Total
$177,234.00
The value of items in the pool were either agreed (in respect of Property A home or the (omitted) shares) or are taken from admissions against interest in the parties financial statements.
During the trial the wife vigorously submitted that a camper trailer which she asserted was worth $8,000.00 was the property of the husband and should be included in the pool. The husband’s evidence was that this item was purchased by his family and was registered in his sisters’ name. The wife alleged that the husband had contributed the money for the purchase but the only possible evidence of this was an amount of $2,000.00 which the husband paid to his sister in about 2012.
The husband did not admit that this payment was in respect of the camper trailer and said that he could not remember why it had been paid.
In written submissions the wife’s counsel grudgingly accepted that the wife could not establish that the husband was the owner of the trailer but said that the issue was an example of why it was understandable that the wife distrusted the husband.
This is an interesting comment because at the end of 2012 the wife inherited $100,000.00 from her stepfather. She did not tell the husband that she had it and on 1 June 2015, four days before separating from the husband, she transferred the money to the maternal grandmother.[9] She claimed that it was transferred pursuant to an agreement between them that the wife would give her mother the inheritance money to repay her for money she had expended on the wife’s behalf.
[9][9] Wife’s affidavit annexure CLB12
The wife’s counsel submitted that either this money should be disregarded or that if it was added it back the court should adopt a two pools approach in regard to assessing contributions to this money.
It is certainly not appropriate to leave the $100,000.00 out of contention. It is like the gold bar referred to in Aleksovski & Aleksovski and it needs to be taken into account.[10] I also agree with the submissions by the husband’s counsel that either the money was wasted by the wife or in fact that it still belongs to the wife and I strongly incline to the view that money has been parked with the maternal grandmother.
[10] Aleksovski & Aleksovski [1996] FamCA 111
There was no evidence of any legal obligation by the wife to pay this amount to the maternal grandmother and the wife made absolutely no effort to explain how the amount of $100,000.00 she allegedly owed her mother was made up. This amount cannot be characterised as a repayment of the mortgage because after it was paid the parties continued to make mortgage repayments to the maternal grandmother.
The options are to add this amount to the pool as a notional asset or to treat the matter as a s.75(2) matter.
I am tempted to add the money to the pool as a notional asset and if the husband had known about it I would have done so because it might then have been argued that he contributed to the conservation of the money by allowing the wife to retain it and not requiring her to use it to alleviate the parties’ financial situation. However he did not know about it and that undermines this argument. There was also no evidence that the parties had financial needs which were not met because the wife did not disclose that she had the money. There was no evidence of overdue bills or threats from creditors.
I intend therefore to treat the fact that the wife should be able to retrieve this money as a s.75(2) matter but if the issue of the camper trailer is relevant to trust, what of this issue?
Leaving that aside the pool consists of net-non-superannuation assets which the parties acquired during their relationship totalling $161,352.00 and superannuation worth $177,234.00, a total of $338,586.00.
The applicable law
S.79 (1) of the Family Law Act 1975 empowers the court to make such orders as it considers appropriate altering the parties’ interests in property.
S.79 (2) provides that the court shall not make an order under this section unless it considers that it would be just and equitable to do so.
In Stanford & Stanford the High Court stressed that when an application for a property settlement was made the court must first identify the parties interests in property and then consider whether it was just and equitable to make an order altering those interests. It stressed that this question could not be answered simply by considering whether a party had made contributions as set out in s.79(4) of the Family Law Act 1975.
I am satisfied that it is just and equitable to consider making property settlement orders in this case as it clearly comes within the following situation referred to in Stanford:
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 a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will 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 property by the husband and 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 also 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).
I intend to take the usual steps to resolve the question of what particular alteration of interests would be just and equitable and those steps are:
i)to assess the contributions of the parties under s.79(4)(a), (b) and (c) and to express those contributions as a percentage;
ii)to consider the matters in s.79(4)(d), (e), (f) and (g), which includes the matters in s.75(2) so far as they are relevant, and determine whether any adjustment should be made as a result to the contribution based entitlements;
iii)to consider the effect of those findings and resolve what orders are just and equitable in all the circumstances of the case.
Contributions
Given that the husband’s superannuation greatly exceeds the wife’s in value and that the husband had a significant amount of superannuation at the commencement of cohabitation it is appropriate to assess contributions separately to that asset.
Assessing contributions on an asset by asset or separate pools basis rather than a global basis is permissible[11] but I will need to make sure that I carefully examine the outcome resulting from this to ensure that it is just and equitable and as Nygh J said in G & G do not lose sight of the forest for the individual trees.[12]
[11] Norbis & Norbis (1986) 161 CLR 513
[12] G & G (1984) FLC 91-582
Contribution to the non-superannuation pool deriving from the marriage
It appeared to be common ground that the parties contributed an approximately equal amount (about $45,000.00) to assist in the purchase of Property A.
In early 2010 the wife paid $17,000.00 off the mortgage using money she received from a property settlement with her former husband. The husband’s counsel said that the court should have regard to the fact that the original stated purpose of the those funds was to pay the private school fees for [D] and [C] and that because the money was paid onto the mortgage the husband had to meet other expenses as he was the sole income earner.
I do not understand this submission, as there was no evidence the husband had paid the private school fees for [D] and [C].
The husband gave unchallenged evidence that he brought the (omitted) shares into the relationship but there was no evidence about their value at that time.
The wife’s counsel submitted that the court should also give some weight to the fact that early in the relationship the parties lived with the maternal grandmother and on the husband’s admission were able to save some money as a result.
The husband worked throughout the relationship and was the primary income earner. The wife ceased work at or about the time [X] was born and did not return to work during the relationship. She carried out the role as primary homemaker.
The wife’s counsel asserted that the court should have regard to the husband’s abusive and oppressive conduct in assessing contributions pursuant to the case of Kennon & Kennon.[13] He alleged that her parenting and homemaker contribution was made more arduous because of the husband’s continued and sustained abuse and violence directed at herself, her two older children and the subject children.
[13] Kennon & Kennon (1997) FLC 92-757
There is clear evidence of some abusive and violent behaviour by the husband to the wife and to the wife’s older children but there is a lack of evidence that the wife’s task as homemaker and parent was made more arduous by the husband’s behaviour.
Sometimes courts have been prepared to infer that conduct would have had that result despite a dearth of evidence[14] but in the case before me the wife’s counsel while submitting that the violence was relevant to the assessment of contributions but made no effort to explain how it should be factored in or what weight should be attributed to it, indeed he made no submissions about contributions on a percentage basis at all.
[14] Cuneo & Cuneo [2006] FamCA 158
Following separation the wife failed to make any mortgage repayments to her mother for several months resulting in an increase in the mortgage balance of $10,000.00.
Conclusion about contributions
Neither the wife’s counsel nor the husband’s counsel made any submissions about how the court should assess contributions on a percentage basis but it is a task I need to undertake. Making findings about contributions and s.75(2) matters on a percentage basis is not mandated in the Family Law Act 1975 but it is a time-honoured practice which assists in providing a transparent path to an outcome and there is nothing about this case which makes that task difficult or impossible.
The wife contributed slightly more than the husband at the beginning of the relationship because she introduced the $17,000.00 and the parties benefitted from living in the maternal grandmother’s home for a year although it is impossible to put a dollar figure on the value of this benefit. However the husband brought in the (omitted) shares (although their value then is unknown) and after the end of the marriage the wife failed to pay the mortgage for several months and failed to explain why she had chosen to do this, resulting in an increase in the mortgage balance of $10,000.00.
I cannot do anything with the Kennon & Kennon submission and taking the above matters into account together with the parties individual contributions as primary income earner and primary homemaker over the course of an eight year marriage I assess their contributions to the non-superannuation assets as equal.
This would entitle the husband and wife to $80,676.00 each of this pool.
Superannuation
At the commencement of cohabitation the husband had superannuation worth $76,081.00. At separation it was worth $142,972.00 and it is currently worth $173,434.00.
The wife had negligible superannuation at the commencement of cohabitation and currently has superannuation worth $3,800.00.
The wife must be deemed to have made contributions during the marriage to the superannuation pool which includes the husband’s superannuation and not just her own superannuation because the parties joined their affairs together and the husband worked outside the home while the wife supported him by taking on the burden of caring for the children.
The husband’s post-separation contributions deserve some weight because they derive from his effort in continuing to work but on the other hand the wife continued to care for the children after separation freeing him to do so. The parties argued at trial about the time the children should spend with the husband but he has never sought to care for them during the week.
I must however give weight to the superannuation the husband introduced. He acquired it during a long working life prior to the marriage and it is worth the equivalent of almost 45% of the superannuation pool.
The wife’s contributions during the eight year relationship and her continuing contributions after the end of the relationship must be weighed into the mix and I assess contributions to the superannuation pool as being 70% by the husband and 30% by the wife.
This would entitle the wife to $53,170.20 from this pool and the husband to $124,063.80.
S.79(4) (d) (e) (f) and (g) matters
I am required to consider the matters in s.79(4) (d) (e) (f) and (g) of the Family Law Act 1975. The only relevant subsection is (e) which requires the court to have regard to the matters in s.75(2) of the Act.
S.75(2) matters
The wife is 44. She has not worked in paid employment since 2010 and is currently engaged full time in caring for the children.
The wife has an employment history and [Y] will start school next year. There does not seem to be any reason why in the longer term the wife should not return to the paid workforce and she told the family report writer that she might become a (occupation omitted). However she will remain the children’s primary carer and even if she returns to the workforce she is likely to bear the brunt of such things as the children needing holiday care, arrangements having to be made for pupil free days and arrangements having to be made if the children are sick.
There was no evidence that the wife had re-partnered.
On the basis of contributions the wife is entitled to $80,676.00 non- superannuation assets and $53,170.20 superannuation.
The wife has $2,800.00 in her possession in the form of a motor vehicle and household contents. In this scenario she would be required to pay the husband $46,155.00 if she wished to retain the home.
The wife also has the $100,000.00 and I do not accept that she would not be able to recall that from her mother. I consider that the wife’s access to this money is something the justice of the case requires me to take into account. It was acquired during the marriage and the husband provided for the family allowing the wife to keep it untouched and it is a significant resource available to the wife in the future.
There was no mention in submissions of the wife having debt not included in the pool and no mention of any potential liability for legal fees.
The husband is 48. He is employed as (occupation omitted) and earns $75,000.00 per annum. He has a good employment history and is in good health. He will be able to continue to earn a good salary into the future.
The husband is paying child support of $289.00 per week.
On the basis of contributions the husband is entitled to $80,676.00 non-superannuation assets and $124,063.80 superannuation. It was not suggested in his counsel’s written submissions that he had any significant debt.
In his written submissions the husband’s counsel flagged what is commonly known as a Robb & Robb argument, in other words he asked the court to take into account that the husband had supported the wife’s daughters whom he had no legal obligation to support.[15] However as with wife’s counsel’s treatment of the Kennon issue that is all he did, flag it. He did not flesh it out with any detail or suggest how it should be factored into the outcome and I can have no regard for this submission.
[15] Robb & Robb [1995] FLC 92-555
[15] Clauson & Clauson (1995) FLC 92-595
The wife is in an inferior financial position to the husband and there is no doubt that there should be a s.75 (2) adjustment in her favour.
The pool of assets deriving from the relationship is small and the wife is at a substantial disadvantage in terms of future income earning capacity and accrual of superannuation, not only because she has been out of the workforce for many years but because she has the care of the children.
The husband is paying a very reasonable level of child support and will continue to do so but in Clauson & Clauson[16] the Full Court said as follows:
In this case the husband is paying substantial child support and there is no suggestion that he will not continue to do so. It is thus a significant factor which the Court should take into account in favour of the husband.
But the other s.75 (2) factors are significant. In addition, it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails: see Langford (16 January, 1995, Full Court, not reported).
Notwithstanding that the wife has the $100,000.00 a 10% adjustment in the wife’s favour in respect of both pools is warranted; were it not for the $100,000.00 a much greater adjustment would be appropriate. A 10% adjustment gives the wife only an additional $8,067.60 of the non-superannuation pool and creates a differential of $16,135.20 between the parties. It gives her an additional $17,723.40 and creates a differential of $35,446.80 between the parties in respect of the superannuation but the extra superannuation is also not a large amount and it will not be accessible her for over two decades.
A 60/40 division means that the wife is entitled to $96,811.20 of the non-superannuation assets and $70,893.60 of the superannuation and the husband $64,540.80 of the non-superannuation assets and $106,340.40 of the superannuation.
The orders
Until the trial commenced the husband was contending that he rather than the wife should have first option to keep the former matrimonial home. At the end of the hearing he conceded that the wife could keep the home provided that he received some cash to help set himself up rather than simply being left with his superannuation. He said that he was willing for the wife to receive a superannuation split.
In written submissions the husband’s counsel returned to the position of the husband having first option to keep the home but I agree with the submission by the wife’s counsel that I should have regard to the position the husband put during trial. In any event the wife has lived in the home with the children since separation in June 2015 and it would be much harder for her than it would be for the husband to acquire another home. Even absent the husband’s concession I would have given her first option to retain the home.
I agree with the submission by the husband’s counsel that it is reasonable that the wife pay the husband a sum of money and that he not just be left with his superannuation. He as well as the wife put an effort into acquiring Property A and it would not be just and equitable for him to receive none of the equity in this property and be left only with superannuation which he will not be able to access for over 15 years.
The wife’s proposal in her written submissions was that she pay the husband $50,000.00 and receive a superannuation split of the same amount. On my figures the payment required will be less than that, $30,020.00.
I am troubled about what to do about this. I am tempted to order that the wife pay the $50,000.00 as she offered to do so and adjust the superannuation split. On the other hand the wife is in a much weaker financial position than the husband notwithstanding that she has the $100,000.00 which she inherited and on balance I consider it just and equitable to make orders in line with my percentage findings. The husband has an additional source of cash in the form of his (omitted) shares which are saleable if he needs additional cash to help him buy a house.
The wife will also be entitled to a splitting order so that $67,093.80 of the husband’s superannuation is transferred to her.
The wife will receive:
Description
Value
Property A
$356,000.00
(omitted) Motor Vehicle
$800.00
Household Contents
$2,000.00
Less payment to husband
($30,020.00)
Less mortgage to Ms L
($231,969.00)
Superannuation B (incl. superannuation split)
$70,893.80
Total
$167,704.80
The husband will receive:
Description
Value
(omitted) Shares
$28,021.00
(omitted) Motorbike
$1,000.00
Household Contents
$3,500.00
Tools
$2,000.00
Payment from wife
$30,020.00
Superannuation
$106,340.20
Total
$170,881.20
This results in something close to a 50/50 split of the assets not including the $100,000.00 which in my view is entirely just and equitable. If the $100,000.00 did not exist a higher adjustment in favour of the wife for s.75(2) matters would have been inevitable.
I will make an order permitting the wife to retain the home if she can pay the husband the amount required and relieve him of responsibility for the mortgage. I will also make an order which will give the husband the opportunity to retain the home if the wife cannot do those things and finally an order for sale.
If the husband retains the home he will be required to pay the wife $94,011.00.
If the house is sold then the net proceeds will be divided in percentage terms to ensure that any changes in the market and any selling costs are born equitably.
I am satisfied that the outcome is just and equitable.
I certify that the preceding two hundred and twenty one (221) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 12 October 2018
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