BRACEWELL & BRACEWELL
[2015] FCCA 3119
•30 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRACEWELL & BRACEWELL | [2015] FCCA 3119 |
| Catchwords: FAMILY LAW – Property – parties previously sought property orders by consent – husband withdrew consent – extension of time – no valuations provided – husband’s initial significant contribution and inheritance – wife’s contributions to renovation of home – wife’s greater post-separation contributions – s75(2) factors strongly favour the wife. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 75, 79 |
| Bevan & Bevan (2013) FLC 93-545 KB & TC (2005) FLC 93-224 Clauson (1995) FLC 92-595 Collu & Rinaldo [2010] FamCAFC 53 Ferraro (1993) FLC 92-335 MRR v GR (2010) FLC 93-424 Poulos and Poulos (1984) FLC 91-515 Wainder & Wainder (2011) FLC 93-473 |
| Applicant: | MR BRACEWELL |
| Respondent: | MS BRACEWELL |
| File Number: | LNC 609 of 2010 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 31 March and 1 April 2015 |
| Date of Last Submission: | 1 April 2015 |
| Delivered at: | Burnie |
| Delivered on: | 30 November 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms A Brunacci |
| Solicitors for the Respondent: | Levis Stace & Cooper |
ORDERS
That MR BRACEWELL (“the husband”) and MS BRACEWELL (“the wife”) have equal shared parental responsibility for X born (omitted) 2001 and Y born (omitted) 2006 (“the children”).
That the children live with the wife.
That the children spend time and communicate with the husband as agreed between the wife and the husband, but failing agreement as follows:
(a)each alternate weekend during school terms from after school on Friday until the start of school on the following Monday;
(b)for one half of each school holiday period, to be taken on a week about basis with such time to commence at the conclusion of school on the last day of term.
(c)from 3.00pm on 24 December until 3.00pm on 25 December in each odd numbered year;
(d)from 3.00pm on 25 December until 3.00pm 26 December in each even numbered year; and.
(e)at such further and other times as may be agreed between the parties.
That notwithstanding any provision for time pursuant to Order No. 3 hereof the children are to be in the care of the wife as follows:
(a)from 3.00pm on 25 December until 3.00pm 26 December in each odd numbered year; and
(b)from 3.00pm on 24 December until 3.00pm 25 December in each even numbered year.
That by consent the husband and the wife are each hereby restrained from consuming alcohol to excess or using any illicit substance while either child is in that parent’s care, or for a period of at least six hours prior to any time when either children is expected to come into that parent’s care.
That within 90 days the husband must pay to the wife the sum of One Hundred Thousand Dollars ($100,000) (“the ordered sum”).
That if the husband fails to pay the ordered sum or any part thereof within 90 days the husband must do all things necessary without delay to sell the property at Property B in Tasmania (“the property”) including but not limited to the following:
(a)listing the property for sale with a real estate agent nominated by the wife (“the real estate agent”) at a price recommended by the real estate agent;
(b)ensuring that the property is properly cared for and maintained to achieve its best market price;
(c)ensuring that the property is made available at all reasonable times for inspection as requested by the real estate agent from time to time;
(d)signing all documents required to list the property for sale; and
(e)completing the sale of the property at a price offered if the price and terms of sale are recommended for acceptance by the real estate agent.
That upon the sale of the property pursuant to these Orders the proceeds of the sale are to be paid in the following priority:
(a)the real estate agent’s reasonable commission and expenses;
(b)any sums required to discharge any mortgage or other security registered over the property;
(c)the reasonable legal costs and disbursements in relation to the sale;
(d)any other liability that may be agreed between the husband and the wife;
(e)payment of the ordered sum or any unpaid part thereof to the wife together with any interest that may have accrued pursuant to the provisions of the Family Law Act 1975; and
(f)payment of the remaining balance to the husband.
That the parties have liberty to apply in relation to the implementation of the Orders for the sale of the property.
That save as to costs, all extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bracewell & Bracewell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BURNIE |
LNC 609 of 2010
| MR BRACEWELL |
Applicant
And
| MS BRACEWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings involve competing applications by MR BRACEWELL and MS BRACEWELL for orders in relation to their children and in relation to property settlement. Although the parties are no longer married to each other,[1] I will for convenience refer to them in these Reasons as “the husband” and “the wife”.
[1] Their divorce became effective on 26 December 2010.
The parties started living together in 1999 and were married in 2001. They separated in 2008 and were divorced in 2010. Their children are X born (omitted) 2001 and Y born (omitted) 2006. They now are aged 14 years and 9 years respectively.
On 5 February 2013 an Application for Consent Orders was filed in the Family Court of Australia (“the Family Court”). In essence, the orders sought were for the husband to pay the wife $80,000 in full settlement of her claim to a property settlement under Part VIII of the Family Law Act 1975.[2] The Application was supported by a Statement of Agreed Facts signed by both parties.[3] That document reads in part as follows:
[2] See Annexures “D” and “E” to the wife’s trial affidavit filed 23 March 2015
[3] Document number 5 on the Court file
1. The parties commenced living together in (omitted) 1999 and married [in] (omitted) 2001.
2. The parties have two children together … .
3. The parties separated in August 2008 and a Divorce was granted on ….
4. The Wife has two children from a previous relationship namely ….
5. At the commencement of the relationship the Wife was employed at … and she procured a job for the Husband [with the same employer].
The Wife is currently employed … and earns approximately $24,000 per annum.
6. The Husband was employed … for approximately 12 months and then obtained qualifications and is employed [at another place of employment] … . The Husband asserts he is presently unemployed but has had some casual work at a (employer omitted) and advises he has had little work from [the other employer] since before Christmas 2010.
7. At the commencement of the relationship the Husband owned a house worth approximately $50,000 which he retained after a Divorce settlement from his previous Wife. Other than that the parties had limited assets.
8. Both parties agree that the contributions towards the marriage were on an equal basis. Throughout the course of the marriage both parties by their own economic means and labour increased the value of the Husband's home by extensive renovations which were performed equally.
9. Throughout the marriage both parties worked with the Wife taking minimal maternity leave upon the birth of both children.
10. The Wife was the homemaker and primary carer for the children and also cared for her two children from a previous relationship throughout the marriage.
11. The Husband has three children of a former relationship. They now reside in New South Wales with their Mother, however, during the course of the relationship and for approximately 12 months, the children lived with the Husband week on week off.
12. The Husband is 9 years older than the Wife. Neither party has any health issues and the Wife continues to be the primary carer for the two children of the marriage. The Husband is not presently paying child support for the children.
13. The Husband has taken out a mortgage over the matrimonial home of $29,000 since separation and has taken out a $12,000 loan with (omitted) bank and accumulated $8,000 and $4,500 debt on two separated credit cards since separation.
14. The Applicant is represented and has received independent legal advice. She is aware, that if made, the Orders reflect a full and final settlement of the parties' property interests.
15. The Respondent is aware of his right to obtain independent legal advice however has elected not to do so. He is however, aware that if made, the Orders reflect a full and final settlement of the parties' property interests.
16. Both parties acknowledge that they have been given every opportunity they consider necessary to have valuations undertaken or to seek disclosure of financial documents and no request for information or documents are outstanding at the date of entering into these Consent Orders.
17. The parties both acknowledge that no undue influence, pressure or unfair tactics have been exerted on either party or used by either party or any of their lawyers against the other party. The parties confirm that they have negotiated and each signed and entered into these Consent Orders voluntarily and of their own free will.
On 8 February 2013 a Registrar of the Family Court issued a Requisition in relation to the proposed Consent Orders seeking an additional jointly signed statement of agreed facts primarily because the settlement of 22% to the wife and 78% to the husband did not appear to be just and equitable. An additional agreed statement was not provided to the Registrar and, after a number of time extensions, the husband withdrew his consent to the making of orders by email on 21 June 2013.[4] On the same day the Registrar dismissed the Application for Consent Orders.
[4] See Exhibit “A1” tendered on 18 August 2014.
On 4 October 2013 the husband filed an Application seeking orders that Y live with him and X live with her mother. He also sought orders for the children to spend time with the parent with whom the child was not living on the basis that the children spend time together.
Interim orders were made by consent on 2 December 2013 (“the consent orders”) which provided inter alia for:
·the children to live with the wife; and
·spend time with the husband each alternate weekend, for half the school holidays and on certain special occasions.
The consent orders also included restraints upon the husband in relation to consumption of alcohol and the use of illicit substances in the presence of the children or for six hours prior to them coming into his care.
The wife filed a Response on 9 January 2014 in which she sought orders that the children live with her and spend time and communicate with the husband essentially on the same basis as set out in the consent orders. She also sought orders for an extension of time to proceed with an application for property settlement and various property orders, which included a payment of $80,000 to her by the husband.
The husband filed a Reply on 9 April 2014 in which he sought to have the wife’s property application be dismissed with costs. At that time he was represented by a lawyer.
On 18 August 2014 the wife was granted leave to proceed with an application for property settlement and her application for costs was adjourned sine die.
The husband’s lawyer filed a Notice of Withdrawal on 23 September 2014. As a consequence, the husband was not represented by a lawyer at the final hearing.
On 6 November 2014 the wife filed an Amended Response in which she increased her claim for a payment by way of property settlement from $80,000 to $150,000.
Terminology
The husband is the owner of a property at Property B in Tasmania which was formerly a (building omitted). The buildings have been renovated and comprise the parties’ former matrimonial home. The parties have generally referred to that property as “the (building omitted)” in these proceedings, so I will also use that term in these Reasons.
The hearing of this matter took place over two days so I will refer to the relevant days as “Day 1” and “Day 2”.
The evidence
The husband relied upon an affidavit (“first affidavit”) and a Financial Statement that had been prepared for him by his former solicitors and filed on 9 April 2014. In addition, he filed an affidavit on 25 March 2015 that he had prepared himself (“second affidavit”).
The wife relied upon a trial affidavit filed 23 March 2015 and a Financial Statement filed on the same day.
A Family Report was prepared by a Family Consultant and released to the parties in April 2014. That report was admitted into evidence.
The husband, the wife and the Family Consultant all gave oral evidence.
Credit
The husband appeared to change his evidence at times if he thought it would suit his case. Some examples of this relate to the differing values that he attributed to the (building omitted) as set out below:
·In proceedings involving his previous wife, he attributed a value of $32,000 to the (building omitted) in a Financial Statement that he had filed on 6 June 2001 in relation to those proceedings.[5]
·In paragraph 7 of the Statement of Agreed Facts referred to above,[6] the husband and the wife agreed that the (building omitted) was worth $50,000 at the start of their relationship.
·In paragraph 19 of his affidavit filed 9 April 2014 he stated that at “the beginning of my relationship with [the wife] the main asset I owned was the (building omitted), which was worth approximately $180,000”.
[5] See Exhibit “C1”
[6] Quoted at paragraph 3 of these Reasons
Another example of inconsistency in the husband’s evidence related to whether or not he had a mortgage liability in relation to the (building omitted) at the time of separation. In this regard, the husband said “she doesn’t even recognise that we had a mortgage at the time”.[7] It was pointed out to him that he had signed the Application for Consent Orders which contained the statement “The husband has acquired all liabilities inclusive of mortgage since separation” and the relevant Statement of Truth which specifically noted that “the matters stated in this application that are within in my personal knowledge are true … and the orders sought are supported by evidence”.[8]
[7] Transcript: Page 29
[8] See pages 16 and 24 of the Application for Consent Orders filed 5 February 2013
I also note that the husband also signed the Statement of Agreed Facts in relation to that Application which contained the following at paragraph 13:
The Husband has taken out a mortgage over the matrimonial home of $29,000 since separation and has taken out a $12,000 loan with (omitted) bank and accumulated $8,000 and $4,500 debt on two separated (sic) credit cards since separation.[9]
[9] My emphasis
Because the husband is the sole owner of the (building omitted), I am of the view that the onus was on him to provide documentary evidence of when he obtained the mortgage loan. He was given that opportunity overnight before resuming his oral evidence on Day 2. However, he still did not provide that evidence and it was not appropriate for him to simply say that a phone call could be made to the mortgagee because he was “sure they’ve got the documentation”.[10]
[10] See page 64 of the Transcript
In view of what I have noted above, I generally preferred the evidence of the wife over that of the husband when their evidence was in conflict.
Relevant law – parenting orders
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration,[11] and in determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section refers to “primary considerations” and “additional considerations”.
[11] Section 60CA
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[12]
[12] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[13]
[13] Subsection 60CC(3)
Each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.[14]
[14] See Mulvaney & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[15]
[15] Section 61DA
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[16]
[16] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[17]
[17] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[18] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[19] made it clear that if it is not open to a Court to find that it is reasonably practicable, within the meaning of s 65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a Court to consider making an order as described in s 65DAA(1)(c).[20]
[18] MRR v GR (2010) FLC 93-424
[19] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[20] Also see Wainder & Wainder (2011) FLC 93-473
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[21]
[21] See KB and TC (2005) FLC 93-224
The issues between the parties
The husband’s position in relation to parenting orders varied between the filing of his application and the end of the hearing. Initially, he was seeking orders that Y live with him and X live with the wife, but in an affidavit filed on 25 March 2015, he appeared to be seeking parenting orders that the children live predominantly with him and “every second weekend go to mothers, holidays shared equally and Christmas Day to be shared”.
Although he appeared to maintain that position at the start of the hearing,[22] at the end of the hearing he also suggested a possible alternative of him and the wife sharing the care of both children on a week and week about basis.[23]
[22] The final hearing took place over two days and I will simply refer to them as “Day 1” and “Day 2” in these Reasons.
[23] Transcript: page 102
The mother’s position was consistent throughout in that she sought orders to reflect the status quo as set out in the interim consent orders of 2 December 2013.
Discussion
In deciding what orders I should make, I will consider the relevant evidence in the light of the considerations under section 60CC of the Act. However, as there is no dispute between the parties that the children should maintain their meaningful relationships with each parent and no allegations of child abuse or family violence were pursued, it is appropriate to move straight to any relevant additional considerations as set out in subsection 60CC(3). That also fits with what their Honours said in Collu & Rinaldo:[24]
There is a possible overlapping of a number of the considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of a child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of a child including the likely effect of separation from a parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2): Mazorski v Albright (2007) 37 Fam LR 518 per Brown J.
[24] Collu & Rinaldo [2010] FamCAFC 53 at paragraph 335
The children’s views
The Family Report was prepared almost a year before the hearing. At that time, the husband was not seeking an order that X live with him, so the Family Consultant’s report about her views needs to be viewed in that context. She said:[25]
X (13 years) indicated in minimal terms that she understood that her parents’ dispute was about Y’s living arrangements and that she would be content if her arrangements remain the same. X probably is an articulate girl, typical of her age. Her body language and her curt verbal responses prior and during her interview indicated that she was not keen to participate, as her mother had forewarned. X stated that she does not talk to other people. Afterwards, [her mother] reported that X commented that she could not wait to end the interview. Consequently it is possible that X did not fully express her views.
[25] Paragraph 27 of the Family Report
X is now 14 years of age and I have no evidence that she wishes to change her living arrangements.
The wife stated:
Although X has technically been spending every second weekend in [the husband]’s care, I have noticed that she has been making arrangements to spend time with her friends on these weekends and go and do activities, have sleepovers and the like.[26]
[26] At paragraph 55 of her affidavit
Given her age, and the fact that the father had described her in an earlier affidavit as a “city mouse” who would prefer to be with her mother,[27] I am not surprised that from time to time she may wish to make arrangements to spend time with friends. (However, I will refer to her spending time camping with a friend in a different context below.)
[27] Paragraph 32 of the affidavit that the husband filed with his Initiating Application on 4 October 2013
It appears that during his discussions with the Family Consultant, Y was very positive about his current school. Paragraph 29 of the Family Report states:
From Y’s account, he evidently enjoys his new school. He said that his new school is far away from his father’s house so he is late to school some mornings.
When the wife’s counsel asked the Family Consultant whether Y had made any other comments about his school and what he liked about it, she referred to her notes and said:
He did say quite a bit … quite a lot about all the different aspects of school, you know, he liked his teacher and the things that they did in the playground, he liked playing chasing and there’s a football ground and … and money for a walkathon and got new play equipment and he talked about those aspects in a very positive way.[28]
[28] See page 21 of the Transcript
The Family Consultant stated that it “seemed likely that Y would miss the male companionship, fun activities and the special attention from his father, such as sharing in his bedroom”.[29] However, she did state that “Y did not express a clear desire to live primarily with his father rather than with his mother”.[30]
[29] At paragraph 39 of the Family Report
[30] At paragraph 35 of the Family Report
In view of what I have set out above, it would appear that neither child is expressing any clear desire for a change in their living arrangements. Having said that, however, I have no doubt that they both enjoy their time with their father.
The relationships of the children with the parents
I have no doubt that both children have loving relationships with both parents.
The attitudes of the parents to the child and parental responsibilities
In his second affidavit, the father expressed a concern that the mother leaves the children at home alone while she goes out to work. That was certainly a concern expressed by him during his interview with the Family Consultant a year earlier. However, I note that the Family Consultant commented as follows:
Although [the husband] and [the wife] have raised concerns about each other’s parenting, on balance the greater risks would appear to reside in [the wife]’s concerns about [the husband]’s parenting and his household arrangements.[31]
[31] Paragraph 42 of the Family Report
I agree with that comment.
It should have become clear to the husband during the hearing that I was more concerned about his laissez-faire attitude to his supervision of the children when they are in his care. In that regard, the mother expressed a concern in the following terms in her affidavit:
65. During the recent school holidays the children were with [the husband] and I telephoned to check on them. [The husband] would send me pictures of Y on his bike and enjoying himself but nothing about X. When I asked to speak to X, [the husband] would say she wasn’t there or wasn’t available.
66. When X returned to my care after the holiday she told me that she and a friend had been camping by themselves for a week at the (omitted). X told me that [the husband] had dropped them off and left them there.
67. X thought this was great, however, I got very upset about two 14 year old girls being left to camp alone, unsupervised without the ability to get help if something happened. X told me that the ranger had found out they were there and had come over every night to make sure they were ok and had firewood and food, however, it was only by chance he had discovered the girls were there camping alone.
When I questioned the husband during his oral evidence about X camping with a school friend, he confirmed that they had camped at a lake approximately 10 minutes by car from his home for a week. He stated that a third girl had been there but her father had gone to the lake and had taken her away because he “wasn’t happy that they were staying there without an adult”. The husband added:
I put phone credit on X’s phone and did everything I could, your Honour. I didn’t have any prior knowledge of this, mind you. This is all just dropped on me out of the blue once again. Yes. X told me what she wanted and had worked out, arranged with a friend, and so I just helped follow that through.[32]
[32] See page 69 of the transcript
I raised my concerns during the husband’s closing submissions about the apparent irresponsibility and hypocrisy of his actions, but the husband appeared not to understand my concerns.
A further concern that the husband appeared not to understand related to his evidence that Y continues to sleep in the husband’s bed, notwithstanding that the issue had been raised a year earlier by the Family Consultant. She had said:
It would not usually be considered appropriate for a child of Y’s age to be sleeping routinely in his father’s bed. Y’s emotional independence needs to be nurtured especially now that he attends school. [33]
[33] See paragraph 40 of the Family Report
When he was cross-examined about that, the husband said:
… and that’s what he wanted, yes, that’s fine. Look, to me I don’t care. If he wants to sleep in my room, he can sleep there all his frigging life if he wants to.[34]
[34] See page 40 of the Transcript
It is perfectly clear from what I have set out above in relation to X camping by the lake for a week and Y sleeping in his father’s bed, that the husband allows the children to make decisions about matters that require mature and responsible adult guidance. I can only conclude that the husband is somewhat lacking in his attitude to the children and his parental responsibilities.
I accept that the wife has at times left Y at home in the care of his older sister. However, I also accept that in the main this has been driven by economic necessity because the mother has to work. In this regard, the Family Consultant said:
While [the wife]’s stated child care arrangement is not ideal (i.e. Y and X are left at home together) it is not unacceptable from a protective point of view, in the circumstances. [The wife]’s capacity to earn an income and support the children financially is contingent upon the necessity of child care.[35]
[35] At paragraph 38 of the Family Report
I also note that the husband pays virtually nothing by way of Child Support. That is referred to under the heading immediately below.
The extent to which the parents have fulfilled their obligations to maintain the children
One of the attachments to the husband’s second affidavit is a statement in relation to his arrears of Child Support (“the Child Support Account Statement”). The reverse side of that document shows that as at 16 January 2015 he owed $9,159.73 in child support for the third child of his previous marriage, and that he owed $576.42 in child support for X and Y. In addition, he owed a total of $11,297.10 in late payment penalties.
Some of the husband’s indebtedness in relation to Child Support may have arisen because in 2010/2011 he had told the Child Support Registrar that he was earning $9,700, when in fact his taxable income was $57,000.[36]
[36] See page 73 of the Transcript
While the amount owing to the wife for the support of X and Y is a very small proportion of his total liability of $21,033.25, but his Child Support Account Statement is hardly reflective of a responsible attitude to supporting his children.
In any event, I note that the Child Support Account Statement shows that the assessed rate of payment for X and Y is the minuscule amount of less than $8 per week. Consequently, I must conclude that the mother is meeting the vast majority of the costs of supporting X and Y.
The capacity to provide for the child’s needs
At paragraph 37 of the Family Report, the Family Consultant said:
The capacity for [the parents] to co-parent will be strained particularly by this dispute about parenting and property issues. Fundamentally it seemed that both parents are likely to support the children’s need for a relationship with their other parent (and sibling if they live apart) although at times each parent has exposed the children to negative views about their other parent. This troubles Y. The children may benefit if both parents attend a post separation parenting course …
I have no evidence that the parties have attended a post separation parenting course and I can only say that it is disappointing if they have not done so.
I have no reason to believe that either parent is unable to provide for the physical needs of children. However, I do have some concerns that the father lacks the ability to provide the children with responsible adult guidance as set out above in these Reasons. I do not have the same concerns about the mother.
In relation to the children’s educational needs, I note that Y has stated that his father has sometimes been late in getting him to school, because the father’s home is further from the school. Although the school is only 20 minutes or so from the father’s house,[37] he was not cross-examined about that and no school attendance reports were provided to me.
The practical difficulty and expense of the children spending time with and/or communicating with a parent
[37] Source: Google Maps
The parties live relatively close to each other, so it is not surprising that neither party has referred to any practical difficulty or expense in relation to the children spending time with the other parent.
Any family violence involving the child or family member
As stated above, no allegations of family violence were pursued during the hearing.
Conclusions – parenting matters
When I consider the matters set out above, I cannot help but come to the conclusion that it would not be in the best interests of X or Y to live predominantly with their father. That would be a very significant change in their lives, because they have lived predominantly with their mother since the parties separated in 2008. The law requires that a change to the children’s living arrangements must be in their best interests, but such is simply not supported by the evidence.
I will therefore make parenting orders that are essentially those sought by the wife.
I also note that the parties agree to mutual orders restraining them from consuming alcohol to excess or illicit substances while the children are in their care or for six hours prior to the children coming into their care. I will also make such orders.
I now turn to consider the parties competing applications in relation to property settlement.
Relevant law – property orders
Prior to the High Court decision in Stanford v Stanford,[38] the general approach to the determination of a property settlement application appeared to have been well established by authority as a multi-step process.[39] The steps were said to involve:
a)Firstly, an identification and valuation of the property, liabilities and financial resources of the parties;
b)Secondly, an evaluation of the contributions made by the parties as defined in section 79(4) of the Act;
c)Thirdly, a consideration of any relevant matters under subsection 75(2) of the Act; and
d)Fourthly, before making an order adjusting property interests, being satisfied in all the circumstances that it is just and equitable to do so under subsection 79(2).[40]
[38] Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70
[39] See Lee Steere (1985) FLC 91-626; Ferraro (1993) FLC 92-335; Clauson (1995) FLC 92-595, Hickey (2003) FLC 93-143 and C & C (2005) FLC 93-220
[40] Also see Russell v Russell (1999) FLC 92-877
However, in Stanford, at paragraph 37, their Honours French CJ, Hayne, Kiefel and Bell JJ said:
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
In paragraph 40 of Stanford, their Honours went on to say:
40. Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.[41] To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[41] R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257
Subsection 79(2) provides that the “court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”
Subsection 79(4) sets out the matters to be taken into account when the Court considers what orders (if any) should be made in property settlement proceedings. It is not necessary to recite them in full at this point
In the majority judgment in Bevan & Bevan,[42] Bryant CJ and Thackray J said:
The High Court in Stanford has laid down three “fundamental propositions” which will provide useful guidance to trial judges in approaching the task under s 79. These were recited above, and could be summarised thus:
1. Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2. The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3. A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.[43]
[42] Bevan & Bevan (2013) FLC 93-545
[43] At paragraph 73
However, it is important to note that their Honours said this in paragraph 42 of 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).
In my view, this is one of those cases where it will be just and equitable to make a property settlement order because there is not and will no longer be the common use of property by the parties. However, it is important to recall that subsection 79(4) states that ‘in considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account” the matters listed therein. The specific use of the words “what order (if any)” in the subsection clearly allows the court to make no order altering property interests if that is considered appropriate.
Since the end of 2002 courts have been required to treat any superannuation interest as “property” for the purposes of property settlements and in appropriate cases courts may “split” superannuation interests. However, I note that neither party in this matter is seeking a superannuation splitting order.
I will refer further to the facts of this matter in the light of the legal principles that I must apply.
The asset pool
The most valuable asset of the parties is the (building omitted). Neither party appears to have had it expertly valued, but I note that in the application for consent orders competed by both parties in January 2013, they agreed that the (building omitted) had a value of $330,000. I note also that the husband adopted that value as an estimate at paragraph 11 of his first affidavit. However, he also said this at paragraph 49:
The (building omitted) has now been valued as worth approximately $280,000.00. When I received the letter from [the wife]’s lawyer I believed I had no choice, as I have previously stated in this affidavit. In order to pay [the wife] money the (building omitted) was put on the market. It was listed for sale for $330,000.00 so that there would be room to negotiate. It did not sell.
The husband also adopted the figure of $280,000 in his Financial Statement filed on 9 April 2014.
While the husband gave no evidence about who valued the (building omitted) at approximately $280,000, he was not challenged in relation to his evidence that $330,000 was a listing price at which it did not sell.
Although neither party has provided me with any evidence of any upward or downward market fluctuations since it was listed for sale, I am of the view that it would be fair to both parties to attribute a value of $300,000 to the (building omitted).
I also note that in the Application for Consent Orders the parties each had a motor vehicle worth $3,500. The wife no longer has hers, so I consider it to be appropriate to also exclude the husband’s motor vehicle from the pool of assets.
The husband has a boat which was worth $3,500 in January 2013, and I am of the view that it should be included.
The wife’s counsel submitted that the parties’ furniture and contents would have very little value and should not be included in the asset pool. I agree.
The parties could not agree upon the value of the husband’s musical equipment (which he uses when earning money as a (employment omitted)), but I accept that it is the sort of equipment that loses value fairly quickly. In that regard the husband attributed a total value of $1,000 to it, so I propose to exclude it from the asset pool also.
According to their Financial Statements, the husband has superannuation worth approximately $25,000 and the wife’s superannuation is worth $6,700. I consider it appropriate to include the parties’ superannuation interests in one pool with other assets, because their superannuation is of relatively little value.[44]
[44] See C & C (2005) FLC 93-220
The husband claimed in his first affidavit to have liabilities, which included a mortgage $29,000, (omitted) credit card $4,500, (omitted) credit card $8,000 and a (omitted) credit card $12,000 (total: $53,500). Similar liabilities are referred to in his second affidavit. However, as I have noted above:
·the Application for Consent Orders contained the statement “The husband has acquired all liabilities inclusive of mortgage since separation” on page 16 (and the husband signed the foot of that page and every other page); and
·the Statement of Agreed Facts (also signed by him) contains this at paragraph 13: “The Husband has taken out a mortgage over the matrimonial home of $29,000 since separation and has taken out a $12,000 loan with (omitted) bank and accumulated $8,000 and $4,500 debt on two separated credit cards since separation”.
Notwithstanding that, they are liabilities that the husband will have to repay.
The wife also has a liability to Centrelink in the sum of $2,500, which she will have to repay at some stage.
The wife owes money to her lawyers, and at the time of the hearing the husband owed money to his former lawyer. However, it is not appropriate for me to take either of those debts into account.
The asset pool that I propose to take into consideration is therefore made up as follows:
Assets The (building omitted) $300,000 The boat $3,500 The husband’s superannuation $25,000 The wife’s superannuation $6,700 Total assets $335,200 Liabilities Husband’s mortgage & credit cards $53,500 Wife’s Centrelink debt $2,500 Total liabilities $56,000 Net value of asset pool $279,200
If the husband retains his assets and liabilities as set out in the table immediately above, he will retain assets with a net value of $275,000. The wife will retain assets with a net value of only $4,200.
Contributions
It is important to remember that the assessment of parties’ contributions in a Family Law property dispute is not an exercise of mathematical precision. In Hayne and Hayne,[45] Pawley J said:
In matters such as this one cannot approach the problem with an eye for meticulous detail. It should rather be dealt with broadly so that the end result can be said to be just and equitable.
[45] Hayne and Hayne (1977) FLC 90-265 at p. 76,415
Similar statements were made in Garrett and Garrett,[46] Clives and Clives,[47] Kessey and Kessey,[48] and Poulos and Poulos[49] and it is clear that any evaluation of the weight to be attributed to different types of contributions - such as direct financial contributions and indirect non-financial contributions - cannot possibly be a science involving precise measurement.
[46] Garrett and Garrett (1984) FLC 91-539
[47] Clives and Clives (2008) FLC 93-385 at paragraph 44
[48] Kessey and Kessey (1994) FLC 92-495 at page 81,150
[49] Poulos and Poulos (1984) FLC 91-515 at p. 79,184
At the start of the parties’ relationship in 1999, the husband was a joint owner of the (building omitted) with his former wife.
He stated in paragraph 20 of his first affidavit that it had been purchased in 1996 for $32,000 and in paragraphs 23 and 24 he stated:
23. From purchase and drawing plans until I moved in took two years. By this stage I was married to my previous wife … and had three children … .
24. When [my previous wife] and I separated, in or about 1998, I retained the (building omitted). At this time the (building omitted) was valued at $180,000.00.
I cannot accept his statement that the (building omitted) was worth $180,000 when he separated from his previous wife, because he has contradicted that in two documents filed in this Court subsequent to his separation from her. I have referred to them above, but for the sake of clarity I repeat them as follows:
·He attributed a value of $32,000 to the (building omitted) in the Financial Statement that he filed on 6 June 2001 in proceedings involving his previous wife.[50]
·On 30 January 2013 he signed a Statement of Agreed Facts which stated: “At the commencement of the relationship the Husband owned a house worth approximately $50,000 which he retained after a Divorce settlement from his previous Wife”.
[50] See Exhibit “C1”
In relation to the husband’s current claim that the (building omitted) was worth $180,000 when he separated from his previous wife, I refer to Jordan & Jordan,[51] in which Chisholm J referred to the “Elias principle”.[52] He said that the principle could be stated in the following way:
When a party has made representations of fact to third parties and has gained advantage from so doing, it is open to the court in subsequent proceedings under s 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations.
[51] Jordan & Jordan (1997) FLC 92-736
[52] See Elias v Elias (1977) FLC 90-267
It is not possible for me to attribute a specific value to the (building omitted) when the husband and wife commenced their relationship in 1999. However, I have no hesitation in concluding that it was significantly less than $180,000 and was probably much closer to the sum of $50,000 that both parties agreed upon in the Statement of Agreed Facts.
Having said that, however, it is clear that by bringing the (building omitted) into the relationship, the husband’s initial contributions significantly outweighed those of the wife. I note that the (building omitted) is still the major asset in the current asset pool and, in that regard I am mindful of what was said in Pierce v Pierce:[53]
It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home ...
[53] Pierce v Pierce (1999) FLC 92-844 at paragraph 28
To her credit, the wife conceded during the hearing that the husband had received an inheritance from his uncle during their relationship. The husband’s evidence was that he received $50,000, whereas the wife thought it was $40,000. As it was the husband’s inheritance, I am prepared to accept that he received $50,000. However, in view of what is set out immediately below, I am not prepared to accept his evidence that approximately $35,000 of that sum was expended on renovating the (building omitted).
The husband had said this at paragraph 34 of his first affidavit:
In or about 2005 I received an inheritance of $50,000.00 from my father’s estate.[54] From this inheritance I purchased a boat as well as a newer motor vehicle for [the wife] and I, camping gear, ski gear and caught up with bills and put it towards more renovations on the (building omitted).
[54] It was accepted that the inheritance was from an uncle, but his father distributed the funds to him and his siblings.
When he was cross-examined he said that he had bought “a good safe car” for the wife and “a good safe car” for himself.[55] He was subsequently asked the following question by the wife’s counsel:
From the inheritance, after you bought two cars and a boat and the camping and ski gear, gave $5,000 back to your dad, miscellaneous bills, what do you think would have been left?
[55] At page 62 of the transcript
His answer was “Thereabouts $35,000”, and when it was put to him that there could not have been that much left over, he still maintained that position.[56] Frankly, I find it very hard to believe that he could buy two good cars, a boat, camping gear, ski gear, and pay various bills (including a sum of $5,000 to his father) and still have a balance of $35,000. In my view, this was another example of the husband tailoring his evidence to suit his case.
[56] At page 64 of the transcript
Although the husband had signed the statement of agreed facts which contained the sentence, “Throughout the course of the marriage both parties by their own economic means and labour increased the value of the Husband’s home by extensive renovations which were performed equally”, his position had clearly changed when he filed his first affidavit and in his oral evidence to the court.
In his first affidavit, the husband had said this:
46. Where I could, I would attend to the renovation and maintenance work on (building omitted) myself. I was an owner builder and I carried out about three quarters of the work on the (building omitted). The other work was otherwise carried out by tradespeople.
47. During these renovations [the wife]’s assistance was minimal. She did do some painting and assisted with some of the plastering.
However, this exchange took place when he was cross-examined by the wife’s counsel on Day 2:[57]
[57] Transcript at page 65
Q. And do you recall [the wife] being pregnant and helping paint and get up on the – on the chair to – sand boards and that sort of thing?
A. Not while pregnant, specifically, no.
Q. No. But you do remember doing those things, helping you with those things?
A. She went as far as to do the kids’ rooms and – and that’s about where it stopped. She did her boys’ rooms, she never did our bedroom, she never did where my daughters’ stayed, – she didn’t touch.
Q. Right. I’m going to put to you that [the wife] probably did about six rooms with the painting and the plastering while she was on maternity leave. Does that sound about right?
A. Four.
Q. Four?
A. Sorry, five.
Q. Five?
A. Five, yes.
Q. Yes?
A. She did a room downstairs, yes.
Q. Yes. Okay?
A. She painted it, yes.
Q. All right. So what I’m going to put to you is that the renovations over the course of the relationship were a joint effort. The two of you planned it together, the two of you picked things together, the two – both of you did work on doing these renovations?
A. I did the majority of the work, me and friends.
Q. Yes. And I note - - -?
A. [The wife] never nailed studs in or put plaster sheets up. She wasn’t capable of it. I wouldn’t expect a woman to be doing that sort of work.
The wife’s evidence was somewhat different. She said that when she was pregnant she and a friend had helped her to put up plasterboards. Her oral evidence was:
… and that’s when my mate Mr D, that I introduced [the husband] to, used to come out, help us, help me with the plasterboard, and nothing wrong with getting Mr D at one end, me at the other end, carry it up the stairs, put the screws in the wall. I’ve never done plastering, but now I know how to do it. I would oil beams while I was pregnant and even [the husband]’s mother and father told me off for – because eight and a half months pregnant on a chair oiling the wooden beams with the oil, so they wouldn’t bend, you know. And they told me to get down, that I’m going to fall. I said, “It has to be done”.[58]
[58] At page 81 of the transcript
I generally prefer the wife’s evidence and I am satisfied that she was very involved in the renovations of the (building omitted).
Excluding the husband’s initial greater contributions and his inheritance from his uncle, I am satisfied that the parties otherwise contributed equally from their employment and as homemakers and parents during their relationship. Indeed, the husband appeared to accept that when he was cross-examined on Day 2 when this exchange took place between the wife’s counsel and the husband:[59]
[59] At pages 60 and 61 of the transcript
Q. And during that period [the wife] was working seasonal work as well, wasn’t she, with …?
A. That’s right.
Q. And during that period, the two of you had the two children. You had Y and X?
A. Yes.
Q. And [the wife] had maternity leave when she had the kids?
A. Yes.
Q. And predominantly while she had the maternity leave, you worked?
A. I would say predominantly through the whole relationship.
Q. That’s fine. So it’s safe to say that there were periods when both of you were working and there were periods when just you were working?
A. Yes.
Q. Yes?
A. And – and there were periods where [the wife] was just working and I was looking after the kids.
Q. That’s excellent. So in relation to that, you would say that that was all pretty even, you tried to share that out – not that your incomes were even, not that they were the same, but the fact that you both went into the workforce, you were both home with the children?
A. Yes. We both – we both worked together to make it happen, yes. As you do.
The wife’s contributions since the parties separated have clearly been greater than those of the husband. The children have lived predominantly with her but they have spent alternate weekends and holiday time with their father. Clearly, her contributions as homemaker and parent must have been greater than those of the husband and I have noted above that the husband pays minuscule Child Support.
The husband made greater early contributions as a result of his ownership of the (building omitted) and the inheritance he received from his uncle, so I am of the view that if this matter was to be resolved solely on the basis of contributions, the husband would be entitled to retain 75% of the net value of the asset pool, and the wife be entitled to receive 25%. However, these matters are not determined solely on an assessment of contributions.
Subsection 75(2) factors
The husband is aged 49 years. At the time the hearing, he was in receipt of a Centrelink benefit as a carer for a man who normally resides at the (building omitted)[60]. The husband also receives some payments for expenses from a number of other adults who live at the (building omitted), but when he was questioned about that, the details provided by the husband were somewhat vague.
[60] That man was in prison in relation to a motoring offence when this matter was heard.
The wife is aged 40 years and, when she swore her Financial Statement in March 2015, she had been employed as a (occupation omitted) at a (employer omitted) for only 21 days. Prior to that, she had been employed as a (occupation omitted). The wife’s gross income from her employment was $350 per week, but she was also in receipt of Centrelink benefits (and the minuscule Child support referred to above).
The obvious likelihood is that the wife will continue to be predominantly responsible for the financial support of the children who are aged 14 and 9 years.
In my view, the subsection 75(2) factors weigh strongly in favour of the wife and support a further adjustment in her favour of 12.5% of the net value of the asset pool, thereby increasing her entitlement to 37.5%.
Discussion
I have set out above the reasons why I consider that the wife is entitled to a distribution of 37.5% of the net value of the asset pool. That net value is $279,200, so the wife’s entitlement is $104,700. However, she will retain her superannuation and be responsible for paying her Centrelink debt, so she retains the equivalent of $4200. Consequently, she should receive a further $100,500 if she is to receive 37.5% of the net asset pool.
In my view, it would be just and equitable for the wife to be paid the round figure of $100,000 and I will make orders to provide for that.
I was not provided with any information by the husband about his ability to raise funds, either commercially or with the assistance of relatives. However, I am of the view that he should pay the wife $100,000 within 90 days, because that will give him time to organise finance if he is able to do so.
If the husband is unable to pay the wife $100,000 within 90 days, the (building omitted) will have to be sold. In that regard, the husband’s evidence that the (building omitted) has family significance would not prevent such a sale. I refer to paragraph 51 of his first affidavit, where he said:
The (building omitted) itself is more than just a building and home for me. Historically it is significant for my family and me. My parents had a farm [nearby] and went to (building omitted) here. My brothers and sister and I went to (omitted) here as kids. We were all (omitted) at this (building omitted). Growing up and now it holds many fond memories for me.
It is not unusual in Family Law matters for an item of property to have significant sentimental value to one of the parties, but that does not mean that it should not be sold if that becomes necessary to do justice and equity to the other party.
I will make orders to provide for what is set out above in these Reasons.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Associate:
Date: 30 November 2015
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Consent
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