Braun and Braun
[2018] FCCA 1926
•16 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRAUN & BRAUN | [2018] FCCA 1926 |
| Catchwords: FAMILY LAW – Parenting – best interests of the children – parties living interstate – increasing father’s time – impact on children – capacity of parents – Property – matrimonial – injunction of proceeds of sale – disbursement of funds – treatment of disbursement – addbacks. |
| Legislation: Family Law Act 1975, ss.60CC, 75 & 79 |
| Cases cited: Stanford & Stanford (2012) 247 CLR 108 Mayne & Mayne (No.2) (2012) FLC 93-510 |
| Applicant: | MS BRAUN |
| Respondent: | MR BRAUN |
| File Number: | ADC 2672 of 2015 |
| Judgment of: | Judge Cole |
| Hearing date: | 25 July 2017, 26 July 2017, 1 February 2018 & 2 February 2018 |
| Date of Last Submission: | 2 February 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 16 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Bowler |
| Solicitors for the Applicant: | Clelands Lawyers Adelaide |
| Counsel for the Respondent: | Mr B McQuade |
| Solicitors for the Respondent: | Adelaide Family Law |
ORDERS
That the parties have equal shared parental responsibility for the children [X] born 2006 and [Y] born on 2013.
That the husband spend time with the said child [X] as follows:
(a)During midyear school holidays for seven (7) nights in Perth;
(b)For Christmas 2018, 2019 and 2020 school holidays for fourteen (14) nights in Perth; and
(c)For the Christmas 2021 school holidays and each Christmas thereafter for twenty-one (21) nights in Perth at times agreed between the parties and in default of agreement such time to occur in the last half of the school holidays.
That the husband spend time with the said child [Y] as follows:
(a)During the midyear school holidays for four (4) nights in Perth, subject to the said child being accompanied by an adult on the return flight to Perth;
(b)During the Christmas 2018 school holidays for seven (7) nights in Perth;
(c)During the midyear school holidays in 2019, the Christmas 2019 school holidays and the midyear school holidays in 2010 for seven (7) nights in Perth;
(d)During the Christmas school holidays in 2020 for fourteen (14) nights in Perth; and
(e)For the Christmas 2021 school holidays and each Christmas thereafter for twenty-one (21) nights in Perth at times agreed between the parties and in default of agreement such time to occur in the last half of the school holidays.
That upon the husband giving twenty-one (21) days’ notice in writing to the wife of his intention to do so, for one (1) weekend of each month in South Australia during the school term.
That the husband spend such further or other time with the said children as is agreed between the parties in writing.
That the husband’s time during the school term holidays shall be on such days as may be agreed and in default of agreement shall occur in the first half of the short school holidays and the last half of the summer/Christmas school holidays.
That handovers in respect of all times involving interstate travel shall occur at Location A to be effected by the wife or a nominee and by the husband or any one of his parents or other member of his family.
THE COURT FURTHER ORDERS BY WAY OF PROPERTY SETTLEMENT:
That the husband transfer his interest in the former matrimonial home situate at Property A in the State of South Australia to the wife within forty-five (45) days.
That contemporaneously with the transfer referred to in paragraph 8 hereof, the wife discharge the mortgage currently registered in the joint names of the parties on the former matrimonial home.
That any interest the husband may have in the following vest in the wife absolutely:
(a)The wife’s motor vehicle;
(b)The furniture and chattels in the wife’s possession;
(c)Any funds held by the wife in her savings accounts;
(d)Any remaining funds paid to the wife from her compensation payout including those funds paid in respect of her legal expenses; and
(e)The wife’s superannuation benefits with Superannuation A.
That any interest the wife may have in the following vest in the husband absolutely:
(a)The husband’s funds in the Bank A savings accounts;
(b)Vehicle A in the husband’s possession;
(c)The furniture and chattels in the husband’s possession including the trailer and the husband’s tools; and
(d)The husband’s superannuation benefit with Superannuation B, save and except as set out in these Orders.
That the husband indemnify the wife and keep her indemnified in respect of:
(a)The Visa credit card debt paid out by the husband;
(b)The capital gains tax assessed on the sale of Property B; and
(c)Any claim for monies that may be alleged to be owing to the husband’s parents.
That there be liberty to apply as to consequential orders.
That all outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Braun & Braun is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2672 of 2015
| MS BRAUN |
Applicant
And
| MR BRAUN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is the application of the wife for orders in respect of the children of the relationship and for the division of the parties’ assets.
The parties commenced cohabiting in 2002, married 2009, and separated on 28 March 2015.
There are two children of the marriage namely [X] who will be aged 12 this year and [Y] who will be aged five.
The husband moved to reside in Perth, Western Australia, some four months after the parties separated in 2015. He continued with his employment part of which required him to return to Adelaide once per month to attend to clients in South Australia.
What steps may have been taken by the husband to remain in South Australia to remain near the children is not clear. He agreed in the course of cross-examination that he made a choice to go to Perth to pursue his relationship with Ms A, his current partner.
The husband now resides in Town A in Western Australia with his partner Ms A and her child and is employed as (occupation omitted).
The wife has remained residing in South Australia and is engaged as a homemaker and a student. The mother is in a relationship however is not residing with her partner.
Some time has been taken up in these proceedings with the children’s issues and in establishing a routine and pattern for the children and in particular [Y] who turned five [in] 2018.
In addition it should be noted that an Order was made on 9 August 2016 that in the event of the husband selling the property at Property B in the State of South Australia that was registered in his sole name, the proceeds of sale after payment to the husband of the advertising sales and marketing costs that he had incurred in relation to same were to be paid into a trust account of the conveyancer on settlement of the sale of the property.
The husband was thereafter restrained from making any withdrawals from the account without the prior written consent of the wife or order of this Court.
Furthermore, the husband pursuant to paragraph 5 of the Order made on 9 August 2016 was to inform the wife in the event that a contract for the sale of the Property B was entered into and inform her of the proposed date of settlement and in due course provide the wife with a copy of the settlement statement and details of advertising, sales and marketing costs in respect of the sale of the property. He did not.
Subsequent to that order being made the property was sold. The sum of $177,225.68 being the net proceeds of sale was paid into the trust account. The husband subsequently placed the funds into a bank account in his sole name and drew on those funds to meet expenses.
The husband refers to the sequence of events in his trial affidavit and makes no mention of the order of this Court and his failure to comply with it.[1]
[1] See husband’s trial affidavit filed on 26 April 2017, 108-114.
There is no dispute that the husband’s actions were without the consent of the wife and without order of the Court.
A contempt application was brought by the solicitors for the wife. It was subsequently withdrawn on the basis that the rights were reserved in respect of the alleged contempt, and the actions of the husband, to enable the proceedings to continue to trial.
In the face of that application, the husband continued to draw on the proceeds of sale and provided little or no explanation for his actions and no apology for his breach of the orders. His evidence was presented without reference to the order until this was drawn to his attention by the Court.
Withdrawals were made in the course of the hearing such that there is little or nothing remaining in the account. The husband’s actions cast a shadow on the evidence that he provided to the Court in the course of these proceedings.
I note amongst other things that no reference was made to this in the case outline provided by the husband’s counsel.
The matter had to be drawn to the attention of the husband when the trial commenced rather than the husband making any effort or any gesture of contrition for his actions. He presented as completely unrepentant about his actions.
In addition, he did not help his case when he swore an affidavit on 28 November 2017 talking of his employer cancelling travel, when he had in fact resigned from his employment. He also allowed his lawyer to swear an affidavit seeking leave for filing due to his work commitments when he was in fact unemployed.
The evidence
The wife relies on:
a)Her second Amended Application filed on 24 April 2017;
b)Her trial Affidavit filed on 24 April 2017;
c)Her second trial Affidavit (responding) filed on 10 May 2017;
d)The third trial Affidavit filed on 20 July 2017; and
e)The second Financial Statement filed on 24 April 2017.
I expressed some concern, and feel the need to repeat in these Reasons, at the liberty taken by the wife with the filing of an affidavit in reply when no leave been granted. The trial directions were specific and were ignored by her and her solicitors.
The husband relies on:
a)His Response filed on 15 October 2015;
b)His Financial Statement filed on 25 July 2017;
c)His trial Affidavit filed on 26 April 2017;
d)The Affidavit of his mother Ms S Braun filed on 26 April 2017; and
e)His updated trial Affidavit filed on 25 July 2017.
The reports of Mr M filed on 4 May 2016 and 11 May 2017 were accepted into evidence.
The wife, the husband, the husband’s mother and Mr M gave evidence and were cross-examined.
The report writer
The report writer’s evidence was that taking all matters into account, it was best to adopt a cautious approach with slow but steady increases in the children’s time with the husband. This was consistent with his reports.
Increases depended on the husband’s availability to spend time with the children in Adelaide and to accumulate further familiarity.
As Mr M said when asked to summarise his position:
The - problem is it’s-they’ve got to feel it as they go with such a little kid (referring to [Y]). While the kid is confident, while he’s confident in his dad, while he’s engaged, while he’s excited, while interesting things are happening, it’s easier for the child, or much easier than if he is in conflict with his dad or-over things like rules or boundaries or behaviour. It will move at a pace that the boy can manage, and the problem is that he will let both parents know quite different things. So for the father I’m pretty sure that whatever happens, if he manages it, it will have gone well and the boy’s coping. If the mother hears a story from [X] or [Y] that something happened and [Y] was upset for a period for a period of time, she will see the child as not coping. And that-because they don’t have a shared view of the boy and because they can’t particularly talk to each other-they don’t have a common language to talk about this boy-they’re going to be left with their very different impressions of what’s happening and that’s where the problem is for future conflict coming back to the court, I think.[2]
[2] See transcript dated 25 July 2017, 40 [22] – [34].
He was asked if the pace of change was to some degree reliant on the husband’s ability to undertake a reasonable degree of frequency in addition to the school term holidays. His answer was:
I think it is, because if everything is aimed at making this easy for the child and supporting him in the changes, then the more familiar he is with his dad, the more used to his dad he is, the better it is-it is for the little boy. Things will be happening, like he will be sleeping in a new room for the first time he goes to Perth, but he has already had experience of that in the hotel, and he has – or hotels – and he has also had experience of his father being close by, so some things are almost automatically have been dealt with, that other things haven’t been. The first time [Y] is naughty or out of control or defiant or oppositional in a big way, that puts an awful lot of pressure on his dad to get it right, how he responds to that. And, again, that’s hard, because people are reactive-parents are reactive of children, and it’s a matter of constantly being able to anticipate [Y], but not just a happy, cheerful, outgoing charming little boy he is, but a boy who’s none of those things. A boy who’s angry, who’s upset, who’s defiant. And he will complain – he - it’s the nature of children. He will complain to his mother, and that will be hard for her also. She doesn’t have a way of speaking to the father where they can just discuss stuff over the phone. If there’s an incident, he can’t just ring her up and say, “Look, this just happened with [Y]. This is what I did about it. This is what we’re doing”. Or, “How do you manage it? Is there a way I can adapt what you do?” -They’re both sensible people. They can’t do it. They just can’t do it. They’re both responsible people. They’re both intelligent. They both want the best for their children but they can’t talk to each other, so I don’t know, your Honour.[3]
[3] See transcript dated 25 July 2017, 43 [38-41], 44 [1-12].
Counsel for the parties did not challenge Mr M on the matters set out in the above paragraphs.
The parties to some degree accommodated those recommendations made in July 2017 with orders that in effect provided for:
a)[X] to spend time with the husband in Perth for seven nights during the October school holidays;
b)[X] and [Y] to spend time with the husband in Adelaide for three nights subject to the husband being on leave; and
c)[X] and [Y] to spend time with the husband in Perth from 27 December to 1 January and thereafter with [X] in Perth to 10 January.
Further orders were made on 2 February 2018 at the conclusion of the trial that noted that equal shared parental responsibility is agreed, and:
a)The husband spend time with [X] and [Y] in Adelaide from 3 to 4 February 2018; and
b)For the 2018 April school holidays [X] spend 7 days with his father in Perth if [Y] is not permitted to travel but otherwise [X]’s time with his father be the same as the time [Y] spends with his father should that be agreed, in Perth.
Pursuant to the orders the parties also provided within 7 days of 2 February 2018 a joint schedule of assets and liabilities and time spent with the children by the husband post separation. It was further noted that the schedule of expenditure on the Property B was not in dispute.
Children’s issues-orders sought
There is no dispute that there be an order that the children live with the wife.
The wife seeks orders that in effect will allow for separate regimes for each child with the regimes matching up with each other in 2021. There is a slower schedule of time for [Y] being the younger child.
With respect to [X], the wife seeks orders for one weekend per month in Adelaide from Friday to Sunday, seven nights during the midyear school holidays, 14 nights in Perth over the Christmas 2018, 2019 and 2020 school holidays increasing to 21 nights in Perth from 2021.
The difference is in respect of [Y] in that orders are sought for him to spend three nights in Perth for the midyear school holidays in 2018 provided the child is accompanied by an adult on the return flight with seven nights for the Christmas 2018 holidays, seven nights for the mid-year and Christmas 2019 school holidays, 14 nights for the Christmas school holidays in 2020 and 21 nights in the Christmas holidays 2021.
The husband seeks orders that on giving 21 days’ notice in writing to the wife of his intention to do so to spend time with the children for one weekend each month during the school term in Adelaide. This does not appear to be contentious.
He seeks orders that school holidays be taken in Perth or such other place as the husband may nominate and in default of agreement for the first half of the short school holidays and the last half of the summer school holidays.
All handovers occur at Location A with handovers to be effected by the parties or their nominees.
He does not distinguish between the time with [Y] and his older brother [X].
The wife throughout these proceedings has been seeking that the husband build a period of time with [Y] in Adelaide before protracted periods of time are spent with the husband in Western Australia.
The husband while acknowledging the wife’s primary care has a different view of [Y]’s ability to cope.
There is no dispute that there have been difficulties with the husband exercising time in South Australia, each apportioning responsibility to the other, but the fact remains that the husband’s time has not formed a routine or pattern that may have been envisioned when orders were made during the course of these proceedings.
The report writer recommends a cautious approach be taken having regard to [Y]’s age and the fact that there has been difficulty setting up the routine and pattern that this young boy needs. This is in contrast to the attitude of the husband.
In considering what parenting orders I make I must have regard to the provisions of Part VII of the Family Law Act 1975 (“the Act”).
Any order I make must have the best interests of the children as the paramount consideration.
In considering what is in the children’s best interest I must have regard to the matters set out in s.60CC of the Act.
Meaningful relationship
Neither party suggests there is not a benefit to the children in having a meaningful relationship with the other party. The dispute is about the terms and conditions on which that should be effected particularly taking into account the fact that the husband now resides permanently in Western Australia.
Risk to the children of physical or psychological abuse or being exposed thereto
This topic did not figure large in the proceedings save for the dispute over the ability of the boys to cope with being away from their home and their mother for extended periods of time.
The views of the children
I have noted that [X] is aged 12 and [Y] is aged 5 this year. They were last interviewed by Mr M in 2017.
[X] when asked how his week with his father in Perth had gone told Mr M, “I was not so happy.” The writer asked [X] why he had not been happy visiting his father. [X] replied, “Because I was away from [Y], I missed him.”[4]
[4] See Mr M’s report dated 10 May 2017, 9.
Mr M went on to note:
The writer asked [X] what he does when he is missing [Y]. [X] explained, “I ring Mum’s phone and talk with him.” The writer asked [X] if [Y] misses him when he is away in Perth. [X] replied, “He misses me but he won’t admit it.”[5]
[5] Ibid.
[X] later advised Mr M that, “I don’t like Mum and Dad fighting.”[6]
[6] Ibid, 10.
When Mr M asked [X] what his parents should do he answered:
“They should get back together again and fight the way they used to.” The writer told [X] that he was confused because he thought that [X] would want his parents to stop fighting. [X] explained “Because you can’t stop adults fighting.”[7]
[7] Ibid.
It is noted that [Y] refused to be interviewed for the purposes of the second interview for the second report. Despite this he was in a cheerful and outgoing mood. He interacted with his father in a familiar and comfortable manner. He appeared confident in his relationship with Mr Braun.
The nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
There can be no dispute that the majority of interim orders were made by consent. The time frames for the father to spend time with the children were often not met.
It did not appear to be an issue in respect of [X]’s relationship with his mother or father save for the comments of the report writer who noted that
[X] is an interesting boy. He presents as somewhat immature. At the same time he appears both watchful and calculating in his manner. [X] is a boy of strong opinions. His attitudes towards the partners of both of his parents could cause problems in the future. [X] is well able to manipulate both of his parents and have it suit him into his own advantage. The conflict between the parents means that they are unable to communicate with each other at any useful level. They have created a power vacuum between themselves. This is a vacuum that [X] could feel if his parents are not careful about creating strong boundaries around this boy.[8]
[8] Ibid, 11-12.
With respect to [Y] the report writer noted:
Both parents are claiming that they have a better understanding of [Y]’s needs and his abilities than the other parent. Clearly this is not the case. [Y] is in his mother’s fulltime care. She has to have a greater understanding of this boy and how he experiences and makes sense of the world than Mr Braun does. [Y] might have a strong bond with Mr Braun; his emotional bond on a day to day basis is with his mother.[9]
[9] Ibid, 12.
There are comments regarding [X]’s relationship with his mother’s partner and his father’s partner. These must be seen in the context of the wishes of the child who would rather see mum and dad get back together. Furthermore, I do not consider they have a significant impact on my decision in this matter.
The children’s relationship with their maternal or paternal grandparents did not appear to be the subject of controversy.
There is no dispute that the children themselves have a good relationship and [X]’s comments in respect of missing his younger brother during the school holidays are noted.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
This issue was pressed by the wife’s counsel with some force. A schedule of missed visits was provided at the conclusion of the trial.
While the controversy in respect of the missed visits centres around the reasons for which they were missed, there is little dispute that the husband had some difficulty establishing a regular routine and pattern with his sons despite the terms of his employment requiring him to be in Adelaide every month.
In other words they simply did not occur as often as perhaps the husband and the wife would have wanted and certainly as often as would have been beneficial for the children in moving to the next level and an increase in their time.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The husband has continued to pay child support although in the documents filed prior to trial there was an allegation that arrears of child support had accrued.
This was addressed by the time the husband gave evidence.
Nevertheless, the wife due to the husband’s relocation to Western Australia continues to maintain the children and be the primary support.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
While there may have been some initial concerns about [X] at the commencement of these proceedings, both parties acknowledge that he will be 12 this year and has comfortably spent time with his father in Western Australia.
The issue for [X] has now narrowed to time spent on holidays away from his brother and the separation of siblings.
[Y] on the other hand was quite young when his father left. There has not been a routine of time established as was envisaged by Mr M in his original report.
The husband says [Y] will cope. The wife rejects this. The report writer says a conservative approach would be more attuned to [Y]’s needs and have a better chance of not collapsing.
The report writer noted amongst other things that problems for [Y] included the fact that each party would be perceiving a different story in respect of [Y]’s progress with his father, they do not have a shared view of the boy. If problems arose the parties were unable to communicate in a constructive and proper manner, and in that context if matters moved too quickly then the entire arrangement may break down and the parties would be returning to the Court.
I accept the position of the report writer.
I will address the parents’ attitudes when considering the capacity to deal with the children’s emotional and intellectual needs.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The practical difficulty and expense of the children spending time with the husband is significant.
There is not only the logistics of packing up the children and putting them on a plane, there is also the planning involved to ensure that the dates are sorted and the airfares are booked sufficiently in advance to minimise the obvious cost.
FaceTime and other means of electronic communication may assist however the obvious barrier of distance between the husband and the children will mean that whatever the parties settle on will still require a degree of commitment and expense over that of urban transport between their respective houses.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The report writer noted at the commencement of his assessment in his second report:
The relationship between the parents remains atrocious. Changes have taken place which have heightened this conflict. Mr Braun has not been visiting South Australia as frequently as he had thought he would be able to do when the writer previously met with him. He has not been spending the amount of time with [Y] that he had thought he would be able to when previously interviewed. Mr Braun has changed jobs. He will not now be regularly visiting Adelaide as part of his work. Ms Braun believes that this lack of visits and contact between Mr Braun and [Y] does not provide the little boy with confidence to visit Mr Braun in Perth.[10]
[10] Ibid, 11-12.
From his evidence, the husband appeared to maintain an attitude that the children will cope regardless of the circumstances.
He chose to continue with plans to move to Western Australia, some four months after the parties separated when his younger son was two years old. The children saw him leave their home and subsequently leave the State. Counsel for the wife submits that as a consequence he compromised his capacity to develop and maintain a meaningful relationship with the children. I accept that submission.
He clearly is his own man. The orders of this Court appear to be a framework to which he will when he considers it appropriate, refer to from time to time.
His evidence is that he considers the wife responsible for the position he finds himself in. he does not appear to accept responsibility for his own actions. His actions would support a cautious approach being taken.
I note the report writer’s comment during cross-examination that parents who leave are emotionally a long way from their partner. They want to share the joy with the children and may not be aware of the loss the child is experiencing.
I refer once again to the comments of the report writer about each party having a different view of the child and how he is coping with the increase in time with his husband.
The wife due to the circumstances in this matter and the husband’s move to Western Australia has been the primary carer of this child. She in turn may have difficulty with understanding or distinguishing between [Y] making complaints of a generalised nature about his time with his father as opposed to [Y] not coping.
The significant deficit in each party’s parenting remains the inability to communicate with the other parent for the sake of the children and to confer when issues arise that affect the children.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
[Y]’s age in the context of the husband’s move to reside in Western Australia has presented the fundamental block to the relationship between the husband and his sons.
As the report writer put it, [Y] does not bring the same things to the relationship as [X]. He has had a smaller life. All he knows is that when he is with someone, he feels safe, he feels comfortable, he is enjoying himself.
Mr M noted however that:
If the child remains settled with the father in each new environment, each new hotel room … that’s a comment about how confident the boys feels with - in his father’s care.[11]
[11] See transcript dated 25 July 2017, 13 [36-38].
Whilst there are some concerns that [X] may have become immersed in the parties’ conflict, [Y] is not in that situation.
If there had been more frequent visits, then it would have been that much easier for the children and the parents to move on. It must not be forgotten however that the experience has been different for the two boys.
Whilst the report writer accepted that the wife was positive in her support of the relationship between the boys and their father and her proposal did not exclude the husband he agreed in cross-examination that he would have increased the time at a faster rate. He had little difficulty with 10 days in the 2017 school holidays, 14 days in the 2018 Christmas school holidays, with an increase in 2019 noting that the husband would soon be in a position of negotiating with his teenage son.
[Y] being a younger child and one who would relate to the person or the place should in the circumstances be able to handle three nights in the 2017 Christmas holidays with consideration to perhaps two lots of four nights later. [Y] subsequently spent some overnight time with his father during the 2017 Christmas holidays and spend some further time with his father during the April school holidays.
The evidence supports the conclusion that limits on [Y]’s time are justified by the developmental age of the child however it would appear that time can increase slowly.
Mr M could see increases in his time such that by 2020/21 the school holidays will be the same for both children.
Whilst reference is made to the developmental needs he was clear that it is how the child is supported taking into account those needs that is important. I have already expressed my concerns about that.
At the same time there are other factors that complicate matters, [X]’s influence for example is significant. Finding the correct pace at which time should increase without constantly monitoring the parties however is fraught with difficulty.
I accept his evidence on this issue and consider it appropriate to adopt the cautious approach particularly with a view to [Y]’s development needs and in an effort to ensure that what the parties build does not disintegrate at the first hurdle.
the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’ parents
There are concerns in respect of both parents in these proceedings.
The husband does raise issues about what he perceives as the wife’s lack of support of his relationship with his sons. The report writer does not accept this and his evidence was there was nothing on which this opinion could be based. I accept the report writer’s evidence on this issue.
The wife at the same time is concerned that the husband will not be alive to the children’s needs particularly when they are in Western Australia and unable to be returned home if they get particularly distressed. Her proposals acknowledge that time must move on however I am not convinced it should move at the pace suggested by the wife.
(j) any family violence involving the children or a member of the children’s family
As previously stated, when considering the risk to the children of physical or psychological abuse or being exposed thereto family violence is not an issue that was pressed in any significant way during the course of this hearing.
I am not aware of any family violence order that applies or has applied to the children or a member of the children’s family.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
I am concerned and I consider the evidence supports this concern that to adopt the husband’s path in this matter would have a greater risk of the parties returning to Court than the more conservative pathway proposed by the wife.
In the circumstances I consider it appropriate to make a version of the orders sought by the wife.
Where the wife proposes the child spend three nights I would propose to increase this to four nights however essentially follow a similar pathway.
Child Support
The wife at trial abandoned the child support application electing to pursue any remedy she sought through the processes available to her outside of the Court system.
Financial issues
The parties concede that it is just and equitable for the Court to consider a division of the matrimonial assets.
The parties have agreed on a joint statement of the assets and liabilities is a copy of which is set out below.
Having regard to the assets and liabilities of the parties, the history of this matter, and the parties’ submissions, I consider this matter fits well within the provisions of paragraph [42] of the reasoning in Stanford & Stanford (2012) 247 CLR 108, wherein it was stated:
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.[12]
[12] Stanford & Stanford (2012) 247 CLR 108, 42.
For the purposes of considering what order if any should be made for the division of the parties’ assets I propose to follow a similar pathway to that set out in Hickey & Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143.
That is, I will consider the assets and liabilities of the parties noting the items agreed and those in dispute. That determination will be made in respect of the disputed items.
I will then consider the contributions made by each party to the acquisition, conservation and improvement of those assets and abilities, taking into account the matters set out in s.79(4)(c) of the Act.
Following that I will consider the financial resources and needs of the parties having regard to the matters set out in s.79(4)(e) of the Act.
I will then review the proposed division of the assets to consider again whether the orders that I propose to make would be just and equitable.
Assets and liabilities
The parties have agreed that the assets and liabilities the parties are composed of the following.
| Assets | Ownership | Wife’s Value | Husband’s Value | Agreed Value and Comment |
| Property A | Joint | $505,000.00 | $505,000.00 | $505,000.00 |
| Net Proceeds of Property B | Husband | $177,255.69 | $177,255.69 | $177,255.69 – the amount of sale proceeds is agreed except the husband argues that the sale proceeds are not to be included in the pool of assets |
| Husband’s savings in Bank B account | Husband | $2,032.49 | NIL | Not agreed – husband asserts that this account was closed in April 2017 and any balance remaining (if any) was transferred to his Bank A account |
| Husband’s savings in Bank A Savings accounts | Husband | $17,568.84 | $17,568.84 (effective sale proceeds of the Vehicle A) | $17,568.84 – husband asserts that the accounts with Bank A are his only remaining bank accounts |
| Vehicle B | Wife | $14,210.00 | $14,2210.00 | $14,210.00 |
| Vehicle C | Husband | $5,000.00 | $500.00 | Not agreed |
| Trailer | Husband | $1,500 | NIL | Not agreed |
| Vehicle A | Husband | $30,760.00 | $24,818.00 (the car was sold for this amount) | Husband sold this motor vehicle and the sale proceeds received into his Bank A account 21/08/2017. The funds in the abovementioned Bank A account represent the remaining proceeds of the Vehicle A |
| Tools | Husband | $2,000.00 | $2,000.00 | $2,000.00 |
| Wife’s various savings accounts | Wife | Nominal | Nominal | |
| Wife’s furniture | Wife | $? | $7,000.00 | |
| Balance of the wife’s compensation funds | Wife | Nominal | Nominal | |
| Liabilities | ||||
| Property A home loan | Joint | $222,772.00 | $222,772.00 | |
| Visa credit card debt | Husband | $11,400.00 | $11,400.00 | $11,400.00 – the husband asserts that this was a debt of the parties pre-separation and that he applied the sale proceeds of Property B to this debt on 28/9/2016 |
| Superannuation | ||||
| Superannuation B | Husband | $129,573.77 | $129,573.77 | As at 1/2/2018 |
| Superannuation B | Wife | $23,132.13 | $23,132.13 | As at 6/2/2018 |
| Superannuation C | Wife | $67,997.62 | $67,997.62 | As at 6/2/2018 |
| Addbacks | ||||
| Wife’s legal fees paid from compensation monies | Wife | $56,639.61 | $56,639.61 | Not agreed – husband asserts that this amount should be ‘added back’ to the pool of assets |
This would mean that the issues to be determined are as follows:
a)Whether the net proceeds of the Property B should be included;
b)What amount if any should be allowed for the husband’s savings and the Bank B account;
c)The value of the Vehicle C;
d)The value of the trailer in the husband’s possession;
e)The value to be attributed for the sale proceeds of the Vehicle A motor vehicle; and
f)What value if any should be attributed to the wife’s savings accounts and furniture.
The proceeds of sale of the Property B
There is no dispute that:
a)The husband purchased the property whilst he was with his first wife.
b)At the date the parties to these proceedings commenced cohabitation the property was registered in the husband’s sole name.
c)The husband’s parents occupied the property shortly after purchase and remained in occupation until the property was sold.
d)The husband’s parents paid rent which was increased by $20 over the years to $270 per week.
e)The mortgage payments were taken from the husband’s account and subsequently the parties’ account.
f)The husband received $25,000 from the proceeds of the sale of the property he owned with his first wife and paid $6,000 for a motorbike with the remainder being paid to the mortgage on the Property B.[13]
g)The husband’s parents paid outgoings such as the emergency services levy, rates, and water although the husband concedes that when the property was being sold they stopped payment of those outgoings noting that would be brought to account with the sale proceeds.
h)The parents also paid for improvements to the property. There is no evidence as to whether these improvements increased or decreased the value of the property. The agreed cost of the improvements is $69,459.20.
i)The husband and wife in 2010/11 refinanced the mortgage secured over the Property B in order to assist them to finance the purchase of the property at Property A. The husband’s evidence is that the mortgage balance at that time was $122,200.
j)There is no evidence that the bank was informed of the parents’ purported half share in the property.
k)The property was sold on 29 September 2016 for a sum of $310,500. Net sale proceeds upon settlement were approximately $177,000.
l)The husband was to be responsible for any capital gains tax in respect of the sale of the property.
m)The husband claimed 100% of all deductible expenses incurred and paid for in respect of the property on his tax return. He was asked:
So, in other words, when dealing with the Tax Department, you operated on the basis that the property was in your name and you were the sole proprietor? He responded “That’s my understanding of how it was-it needed to be done for the tax purposes, yes, from my account. That’s correct”.[14]
[13] See husband’s trial affidavit filed on 26 April 2017, 13.
[14] See transcript dated 1 February 2017, 17 [13-16].
The husband alleges that he and his parents entered into an agreement that they would occupy the property and in return for paying rent, outgoings and improvements they would be entitled to buy the husband out or in the alternative receive 50% of the net proceeds of the sale of the property should that occur.
The wife denies this and says there was some talk of the husband providing some compensation for the cost of any improvements paid for by his parents but that waxed and waned depending on the state of his relationship with his parents at the time.
The husband refers to the alleged agreement with his parents in his responding affidavit. He states:
We have a long-standing agreement that when the property is sold they will receive 50% of the sale proceeds. Ms Braun is well aware of this agreement between us.” There is no mention of any written document evidencing the agreement.[15]
[15] See husband’s affidavit filed on 26 October 2015, 17.
There was no application in the course of these proceedings to join the husband’s parents as interested parties in the proceedings.
In an affidavit of the paternal grandmother, she states that:
There was never anything in writing between Mr Braun and my husband and I as we did not consider it necessary. We were all secure in the knowledge that we had a firm agreement in place.[16]
[16] See affidavit of paternal grandmother sworn on 12 February 2016, 29.
In her subsequent affidavit sworn for the purposes of trial, the paternal grandmother states again that:
There was never anything in writing between Mr Braun, Ms Braun and my husband and I as we did not consider it necessary. We are all secure in the knowledge that we had a firm agreement in place as per the agreement previously between Mr Braun, Mr B and I.[17]
[17] See affidavit of paternal grandmother sworn on 24 April 2017, 43.
In the following paragraph however the paternal grandmother states:
Mr Braun has shown me a copy of an agreement in writing between us from 1999 setting out the basis for my husband and I retaining a 50% share in the net proceeds of sale of the property once it was sold. At the time of swearing a previous affidavit in support of Mr Braun’s court proceedings, I had forgotten this agreement and my recollection was that it was just a verbal agreement between us. I do not know what would have happened to the original of that agreement.[18]
[18] Ibid, 44.
In his trial affidavit the husband states:
The parties signed an agreement in August 1999 which provided for my parents to receive one half of the net sale proceeds once the mortgage and other costs had been paid. I do not know what happened to the original agreement.[19]
[19] See husband’s affidavit filed on 26 October 2015, 94.
There is no explanation as to the failure to refer to this in previous affidavits or as to how the document was found.
The agreement provided to the Court is a copy of a copy. It is not stamped. It is barely legible. I do not propose to set it all out here but will refer to the relevant provisions.
In cross-examination, the husband advised:
It was found when they were going through all the business documents at the end of-or just prior to the sale of-of the Property B and their move to here.
He went on to advise that that was “2016, Juneish”.[20]
[20] See transcript dated 1 February 2018, 18 [45-48] and 19 [1].
The first document filed by the husband following that discovery is in November 2016. There is no mention of the document there.
The paternal grandmother said in cross-examination that she found some documents in a shoebox and showed them, including the agreement to her son. She was asked did you read it before you did that and she answered, “I did look to see what was there and I realised what was in there, so I – I – I did give it to my son.”[21].
[21] Ibid, 92, [45-46].
She was challenged on the inconsistency between that answer and her affidavit which stated that her son showed the agreement to her. Her response on that issue is not accepted.
She went on to state that she had not remembered the agreement prior to finding it in the box. (Counsel for the wife points out that at the same time her evidence was that she clearly remembered and could account for all expenditure on the property).
The husband was challenged on the inconsistency between his version (that his parents found the document) and that of his mother who says her son showed her the document in her affidavit. His answers on that topic were unhelpful.
It is also unclear as to why the property remained in the husband’s name, particularly after the husband’s first marriage had failed and he had just embarked on the second relationship.
His explanation about his parents needing accommodation because they were being kicked out of the property they were renting (the lease had finished and there appears to be no reason why it could not have been extended) was not helpful.
The reason why the parents did not appear on the title (the husband says that he was 23 and did not think about it) is unsatisfactory and ignores the fact that his parents who ran their own business and were self-employed would have had some knowledge of how exposed they were to any changes in the husband’s circumstances by choosing not to be on the title.
There is some reference to the husband being able to negatively gear the property however if this is correct, and the husband’s version of events is accepted, then there is a concern that the husband and his parents have engaged in a series of acts that have provided the taxation department with false information over a span of many years for the purposes of obtaining a financial benefit.
It is not clear as to why the husband should be the person solely responsible for the mortgage, and there is some question as to whether the parents were paying “rent” at the market rate.
I also have difficulty excluding the possibility that by the time the rent, outgoings and cost of improvements are added up and divided by the period of the parents’ tenancy the parents in the end paid no more than a market rate rental for the property.
The treatment of the property in the husband’s will also raises issues. In a hand written will made in 2003 shortly after he commenced cohabiting the husband leaves the Property B to his parents. It is noted that he also appoints his parents as executors of the will. The remainder of the estate is left to his de facto partner. It is noted that on the best evidence of the parties they had been cohabiting for less than two years.
I do not consider this will to be corroborative proof of the agreement. It is well within the bounds of a young person who has just ended one marriage and is embarking on a new relationship.
I also note that in a subsequent will prepared for the husband and dated 3 February 2010, the husband leaves the whole of his estate to his wife absolutely.
Counsel for the husband argues that the will has not been executed. There was a robust exchange during the course of cross-examination as to why that document would have been prepared if it was not in accordance with his instructions.
There is an allowance in that will for the parents to have sole use of the property “for as long as they require” in the event of the wife not surviving him however there is no reference to any division of the equity with his parents; the residuary of the estate goes to his children.
If there was an arrangement such as that proposed by the husband and his mother, there is no explanation as to why it was not addressed in the will as it would require very specific arrangements when dealing with the husband’s estate.
There is also no explanation as to why, when the parents could obtain an exemption from capital gains tax by nominating the property as their principal place of residence, once they were on the title, that they did not do so.
It is agreed that the property was refinanced in 2011 to enable the parties to build Property A. There is no mention of the husband’s parents being consulted in respect of this nor is there any mention of the bank being informed of the purported arrangement.
Counsel submits that the husband’s parents pursuant to the agreement did not get an interest in the property. They were given the right to obtain an interest by purchasing 50%. He submits they have no rights to the property other than a right to purchase and a right to receive net proceeds….should they comply with paragraph 6 of the agreement which stated that, “It is intended that in return for Mr B and Ms M Braun paying for all out goings related to the property that they become entitled to receive 50% of the net proceeds (after costs).”.
They did not however pay all outgoings. The husband paid $20,000 in to the mortgage on the sale of the property he held with his first wife and the parents. The husband also acknowledges that in mid-2016 his parents stopped payments toward the rates and insurances as the house was for sale and any amounts outstanding were adjusted at settlement of the sale of the property.[22]
[22] See husband’s trial affidavit filed 26 April 2017, 104.
I do not accept the husband’s or his mother’s version of events that supposedly led to his parents having an interest in the Property B.
The agreement between people who are confident enough to purportedly draft something such as that tendered to the Court, does not make sense.
The history of the treatment of the property does not accord with the purported agreement. If for example the parents had been meeting the outgoings however due to the collapse of the parties’ finances in connection with the construction of the house on the Property A the Property B was to be sold by the bank then what notice did the bank have of the third party interest. The evidence would suggest none.
I do not accept the submissions of counsel that the husband obtained any benefit whatsoever from this agreement. If he used the property for negative gearing then he made a deductable loss, but a loss nonetheless.
His evidence in respect of the capital gains tax that was assessed on the property and how that would be brought to account was unacceptable.
The evidence in respect of the production of the document was inconsistent and unacceptable.
The failure to place the property in his parents’ name strongly supports a conclusion that they had no entitlement to any portion of the proceeds of sale. The parents paid rent and contributed to improvements on the property however, there is no evidence to suggest that they paid when all expenses are brought to account over the period they were in possession, any more than a tenant leasing the property at the going market rate.
There is also no evidence to suggest that any of the “capital improvements” added to the value of the property.
I consider the husband held the property in his name and subsequently as he concedes disposed of the proceeds in breach of the orders of this Court. The funds would still be there if he had not elected to breach the Court orders on a number of occasions over a number of months.
The issue then becomes one of whether the funds should be added back into the pool. I am not referred to any authorities by either counsel when considering this issue.
I also note both parties seek to have other amounts added back into the pool. As stated in In the Marriage of Milankov (2002) 28 Fam LR 514:
The inclusion of these notional add-backs to the pool of assets ought not to be seen as a method of increasing the size of the pool but merely assists the court in determining what should be a fair share of the pool that is available for distribution.[23]
[23] In the Marriage of Milankov (2002) 28 Fam LR 514, 114.
I note that the issue of add backs or notional property came under review following the decision of the High Court in Stanford.
The circumstances of this matter are somewhat unusual in that it is acknowledged that there was an order of the Court restraining the husband from disposing of the proceeds of sale.
The husband was aware of that order. The husband in breach of that order applied the proceeds for his own purposes. He conceded he did not approach the wife nor did he make any application to the Court. He said “I believe it was a breach of the order, yes”[24]. He knew what he was doing.
[24] See transcript dated 1 February 2018, 44 [22].
The wife issued contempt proceedings however elected whilst preserving her rights, not to proceed with that application in an attempt to bring all matters to a conclusion.
This matter would appear to fit well within the circumstances of Townsend (1995) FLC 92-569 where Nicholson CJ said:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.[25]
[25] Townsend (1995) FLC 90-569, 81,654.
I also note the discussion of this by Murphy J in Kouper v Kouper (No.3) [2009] FAMCA 1080, and Strickland J in Mayne v Mayne (No.2) (2012) FLC 93-510. In the latter matter, the Federal Magistrate added back as a notional asset the sum of $173,841 which was an inheritance received by the wife. The wife could not explain what happened to it. Whilst in this matter the husband is able to provide some accounting of his expenditure, it is expenditure nevertheless that occurred in the face of a Court order.
In all the circumstances of this case I consider there has been a premature distribution of property and I do not consider the rationalisation of the husband’s expenses, such as they are, prevent the amount being added back. It is an amount that the husband has had access to in breach of the orders of this Court and has been able to utilise for his own expenses.
If I am adding the full amount of the proceeds of sale back into the husband’s side of the ledger, then I must also bring to account the capital gains tax that accrued on the sale of the property. The evidence is that amounted to $32,000. Part of that has been paid from the husband’s then owing tax refund and as a consequence, the amount can be brought to account at $24,000.
I will also add in the credit card paid by the husband from the proceeds of sale to avoid any prospect of double accounting.
The funds however should not have been disbursed in the face of the Court order and I therefore do not consider a discussion about whether they were reasonable or not is of assistance. There was an order freezing those funds and that order was ignored over a number of transactions and a protracted period of time.
Husband and wife’s legal fees
There is no dispute that legal fees paid by a party from available assets may be added back.
The husband on his evidence utilised a significant portion of the $177,000 to pay legal fees. He also borrowed funds from his parents.
I do not propose to add back anything further in respect of the husband’s legal fees as I consider that to do so may run the risk of double accounting for those funds when they have been paid from the proceeds of sale of the Property B.
The wife concedes that of the funds received by her by way of workers compensation amounting to approximately $99,500 approximately $56,639.61 was used to pay legal fees. Save that there is an issue about the husband’s contribution to those funds, there was no strong opposition to this. In any event, I consider the adding back of the wife’s legal fees to be appropriate.
$44,000 loan from husband’s parents/withdrawals from mortgage
The wife seeks that these funds be added back.
Shortly after the parties separated, the wife agreed to the husband withdrawing an amount of $44,000 to repay his parents for funds lent to the parties for the flooring in the Property A and for the purchase of the motor vehicle. The husband at the end of the day did not use those funds to pay the parents’ debt however utilised other funds including the proceeds of the Property B to do so.
In the circumstances, I consider the loan has been paid from the funds described by the husband, and to avoid double accounting, the amount of $44,000 be regarded as having been utilised to meet that debt, rather than separately treated as having been paid from the $177,000 held by the husband.
Husband’s savings accounts and Bank A account
The wife seeks to bring to account the amount of $2,032.49 being funds disclosed in the husband’s Financial Statement filed on 1 December 2016. The husband’s position is that these accounts were subsequently closed with the funds rolled into his Bank A account (“Bank A account”). The funds are therefore brought to account under that heading included the amount showing as the balance of that account.
Vehicle C
The wife’s evidence is that the husband at one handover collected [X] in a green Vehicle C. She estimates that the vehicle is worth approximately $5,000. There is no evidence produced to support that valuation save for an insurance certificate for the 2014/15 financial year which may or may not have the vehicle listed replacement value. The husband provides at “Exhibit Q” to his trial affidavit a valuation of the Vehicle C which is $500. I must accept that value.
Trailer in husband’s possession
The wife says there is a trailer in the husband’s possession that has not been brought to account. She provides the registration number. I am not directed to any evidence that would support a value of $1,500. The matter does not appear to be addressed by the husband. I do not propose to bring it to account in the table of assets and liabilities.
Sale proceeds of Vehicle A
The husband asserts the car was sold for $24,818. The wife’s assertion is that it was worth $30,760. The husband’s evidence is that he sold the motor vehicle and the sale proceeds were paid into his Bank A account on 21 August 2017. The funds in the account represent the remaining proceeds of the motor vehicle. In those circumstances I consider it appropriate to bring those funds to account when considering the savings in the Bank A account, however will not bring this to account as a separate item.
Wife’s furniture
The husband attributed a figure of $7,000 to the furniture and chattels in the wife’s possession. I am not directed to any evidence in respect of this valuation. I do not propose to bring that figure to account. In the absence of any evidence to the contrary, I propose to give the furniture and chattels in the wife’s possession a nominal figure. I also propose to allow the same for the furniture and chattels save for the husband’s tools in the husband’s possession including the trailer.
Sum of $1,991 withdrawn from parties’ account by husband
The evidence is that on 1 July 2015 the husband withdrew from the home loan a sum of $1,991. This was not contested during the course of the trial. The wife seeks that it be added back.
I am not directed to any evidence put forward by the husband in respect of this. I am also not directed to any cross-examination of him on this issue. Without further information I am reluctant to add it back.
Final table of assets and liabilities
| Assets | Ownership | Value |
| Property A | Joint | $505,000.00 |
| Net proceeds of the Property B | Husband | $177,255.69 |
| Husband’s savings in Bank A Savings accounts | Husband | $17,568.84 |
| Vehicle B | Wife | $14,210.00 |
| Vehicle C | Husband | $500.00 |
| Tools | Husband | $2,000.00 |
| Wife’s various savings accounts | Wife | Nominal |
| Wife’s furniture and effects | Wife | Nominal |
| Husband’s furniture and effects | Husband | Nominal |
| Balance of the wife’s compensation funds | Wife | Nominal |
| SUB-TOTAL | $716,534.53 | |
| Liabilities | ||
| Property A home loan | Joint | $222,772.00 |
| Visa credit card debt | Husband | $11,400.00 |
| Capital gains tax – Property B | $24,000.00 | |
| SUB-TOTAL | ($258,172) | |
| Superannuation | ||
| Superannuation B | Husband | $129,573.77 |
| Superannuation B | Wife | $23,132.13 |
| Superannuation C | Wife | $67,997.62 |
| Addbacks | ||
| Wife’s legal fees paid from compensation monies | Wife | $56,639.61 |
| Husband’s legal fees including in addback of $177,255.69- see above | ||
| TOTAL ASSET POOL | $993,877.66 | |
| Net asset pool | $735,705.66 | |
Contributions
At the commencement of cohabitation each party had some assets however the equity in those assets was at best minimal. The evidence in respect of that equity and/or any interest in any superannuation benefit is again at best minimal.
The husband asserts that he receive $25,000 by way of his share of the property settlement with his former wife of which some $6,000 was used to purchase a motorbike with the remainder being paid towards the mortgage at the Property B.
The wife in October 2001 purchased a property at Property C. There is some dispute as to when the parties commenced cohabitation however it would appear that there was some equity albeit minimal in the Property B and some equity in Property C and as stated the evidence in respect of the quantity of the equity is at best minimal.
There is no dispute that the wife received a compensation payout in May 2002 of approximately $40,000. While there is some cause to consider the husband may have been in a slightly better position this alleviates any concerns particularly in view of the wife’s evidence that the funds after the purchase of a motorbike were applied to the mortgage on Property C, she then owned.
It is also common ground that Property C was sold by the wife in December 2003 with the net proceeds of sale being received in the sum of $86,000. The parties subsequently purchased and built on property at Property D and the proceeds of the sale of Property C were put towards that project.
The parties commenced living in Property D in 2005 with the child [X] being born in 2006.
On (omitted) 2009 the parties married.
In 2010 they purchased Property A in which they subsequently built a house. In the course of structuring the finance for the construction of the property, the mortgage on the Property B was refinanced into the joint names of the parties. They commenced living in the Property A house in April 2012.
The husband’s parents lent the parties the sum of $7,000 to pay for the flooring in the Property A.
In March 2013 the wife suffered a work related injury.
In 2013 the parties’ second child [Y] was born.
In May 2014 the husband’s parents lent the parties $37,000 to assist with the purchase of the Vehicle A.
In June 2014 the parties sold Property D for $484,000. The net proceeds of sale of $257,194 were applied to the debt on the Property A.
In February 2015 the wife was awarded a workers compensation payment in the sum of approximately $100,000.00.
The parties separated in March 2015.
On 13 and 14 April 2015, $30,000.00 and subsequently $14,000.00 was redrawn from the Bank B redraw facility by the husband with the agreement of the wife to pay the funds owed to the husband’s parents. Those funds were however utilised by the husband for his personal expenses.
In May 2015 the wife received the sums of $86,452.17 and a subsequent payment of $10,000 Medicare rebate in respect of her WorkCover claim.
On 3 July 2015 the husband moved to live in Perth in Western Australia.
These proceedings commenced in late 2015.
In April 2016, the husband surrenders to the bank Vehicle D in the wife’s name with a loan being the husband’s sole name which the wife had retained post separation.
The wife subsequently purchased a motor vehicle for $17,810 using part of the workers compensation claim monies received.
In August 2016 orders were made restraining the husband from disposing of the net proceeds of the sale of the Property B.
In September 2016 the Property B was sold with the husband receiving net proceeds of sale in the sum of $177,222.58.
The husband notwithstanding the order utilised some of those funds to pay:
a)$11,906.38 to pay the credit card in full;
b)$7,768.00 to pay a personal loan for his car;
c)$38,000.00 to pay the remainder of a loan from his parents;
d)$12,000.00 to pay legal fees; and
e)$2,000.00 to pay sales costs in respect of the Property B.
The evidence of the husband is that the remaining amount save for any funds remaining in his savings account has been spent.
This is a relationship of some 13 to 14 years depending on which party’s version is accepted.
Counsel for the husband suggest that this may be a 2 or 3 pool exercise taking into account the Property B, the assets accumulated by the parties, and the wife’s compensation payment. This is not a line pursued by counsel for the wife.
Counsel for the wife says that contributions during the relationship should be regarded as equal. I accept that submission. Any initial advantage that may have been obtained by the husband, is to some extent set off by amongst other things the early compensation payment received by the wife.
At the same time, Counsel for the wife by way of tidying up suggest that there should be a separate treatment accorded to the wife’s compensation funds. These were funds received in respect of a work-related injury incurred by the wife in 2013. That is, the injury occurred relatively late in the parties’ relationship and the funds were received shortly after the parties separated. The wife’s counsel concedes that some allowance should be made by virtue of the husband having the title and for the wife receiving back wages paid during the relationship. He suggests however that this should be modest and any adjustment should be around 5% of the WorkCover payout.
I do not accept that submission. I consider that this is a matter that should be brought to account pursuant to the provisions of s.75(2)(o) of the Act when considering any other relevant fact or matter.
The issue of the husband’s expenditure of the $177,000 from the proceeds of the sale of the Property B and the $44,000 from the drawdown of the parties’ mortgage remains controversial as does his evidence in respect of the blending of those funds.
I have taken the view that in the process of his handling of those funds he has paid down some debt being the credit card and the parents’ $44,000 loan. However, apart from that I continue to find his evidence problematic. I accept however that having brought the proceeds of the sale of the Property B to account, some credit must be given or the “improvements” undertaken on that property by the husband’s parents.
I do not accept that credit should be given to him for working while the wife was recovering from her work related injury for example, as I have no doubt that she continued to do her best to maintain and run the home during this time.
I am not addressed specifically on the issue of post separation contributions however I consider that any advantage the husband may have had was well and truly offset by his post separation conduct.
Financial resources and needs
The husband will remain residing in Western Australia with his partner. The wife is established in South Australia and there is no evidence of any plan to move on her part.
The husband is employed and it appears will continue in that line of work.
The wife is a homemaker and student and her income is comprised of a Centrelink benefit. When the trial in this matter commenced she was in her second year at the (University omitted) completing a double degree in (omitted). She anticipates completing the qualifications in 2020 enabling her to apply for jobs in the (omitted) work area.
The wife will continue to have the primary care of the children. It is acknowledged that the husband will be paying child support however there is likely to be some offset for the cost of travel to enable the children to spend time with him.
Counsel for the wife points out that it was the husband’s decision to continue with the move to live and work in Western Australia post separation and as a consequence he will not be able to spend as much time with the boys as if he had remained living and working in South Australia. Regardless of apportioning any responsibility for that move the fact remains that the distance between the husband and his sons will mean the primary care and financial burden will remain with the wife.
Save for the children, neither party has the responsibility of caring for other people. The husband’s partner is working and is currently earning more than him and is able to assist with his day-to-day living expenses by sharing the cost between them.
Save for the Centrelink benefit referred to above, neither party is entitled to a pension or Commonwealth allowance.
I note the wife has had the benefit of and save for the addback of her legal fees has spent the remainder of her compensation.
In all the circumstances I accept the submission that there should be a 10% adjustment in favour of the wife.
Review-is the division just and equitable?
The wife seeks to retain the former matrimonial home.
This would mean on the basis of the assets and liabilities referred to above, the wife would retain, inclusive of superannuation:
a)The former matrimonial home $505,000.00
b)The mortgage ($222,772.00)
c)Vehicle B $14,210.00
d)Furniture and effects nominal
e)Superannuation B $23,132.13
f)Superannuation C $67,997.62
g)Legal fees paid from compensation $56,639.61
Subtotal $444,207.36
The husband would retain inclusive of his superannuation:
a)Proceeds of Property B $177,255.69
b)Savings in Bank A (inclusive of sale proceeds of Vehicle A) $17,568.84
c)Vehicle C $500.00
d)Tools $2,000.00
e)Furniture and chattels including trailer nominal
f)Visa credit card debt (NOTING the husband’s evidence this has been paid from the $177,255.60 received from the Property B) ($11,400)
g)Remaining capital gains tax on Property B ($24,000)
h)Superannuation B $129,573.77
Subtotal $291,498.30
The total value of the asset pool including financial resources is $738,705.66. I consider it appropriate that the wife retain 60% of that entire pool.
This would mean that the wife would receive $441,234.40. The wife is retaining net assets with a value of $444,207.36. It is appropriate in all the circumstances to round the $441,234.40 up to that amount.
Conclusion
A significant amount of time and resources have been spent on the failed attempts to establish a routine and pattern for the parties’ young sons. At the conclusion of the evidence in respect of those issues, I consider the comments made by the report writer in respect of the pace of change and the ability of the children to cope to have significant weight.
I would therefore make the orders set out at the commencement of these Reasons in respect of parenting issues.
Further time was spent considering the husband’s breach of the orders of this Court in respect of the sale proceeds of the Property B and the purported claim by his parents. It is noted that the wife did not press for the husband to be charged with contempt, although strong submissions were made in respect of the husband’s breach of the orders. I have therefore not taken that matter further. Once this issue was resolved, it was appropriate to proceed to divide the asset pool between the parties.
I therefore make the orders as set out at the commencement of these Reasons with respect to financial issues.
I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of Judge Cole
Date: 16 July 2018
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Jurisdiction
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Costs
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