BREWSTER & BREWSTER
[2017] FamCA 1070
•21 December 2017
FAMILY COURT OF AUSTRALIA
| BREWSTER & BREWSTER | [2017] FamCA 1070 |
| FAMILY LAW – CHILDREN – Final orders – Substantial and significant time – Whether the husband shall spend block time with the children or time occurring over two occasions per fortnight – Where the focus is on the husband’s ability to care for the children – Consideration of the evidence of the family consultant – Held: the father shall spend time with the children each alternate weekend and one intervening week night. |
FAMILY LAW – PROPERTY – Final orders – Assessment and division of pool of assets – Two-pool approach to non-superannuation and superannuation interests – Assessment of contribution – Spousal maintenance – Consideration of the children’s’ ages and future care requirements – Held: division of non-superannuation assets 57 per cent in favour of the wife and division of superannuation assets 55 per cent in favour of the husband.
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79, 90MT |
Family Law Rules 2004 (Cth) r 17.04
Family Law (Superannuation) Regulations 2001 Part 6
| Chorn & Hopkins (2004) FLC 93-204 | ||
| APPLICANT: | Ms Brewster | |
| RESPONDENT: | Mr Brewster |
| FILE NUMBER: | ADC | 1992 | of | 2015 |
| DATE DELIVERED: | 21 December 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 30 October 2017, 31 October 2017 and 3 November 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richards |
| SOLICITOR FOR THE APPLICANT: | David Burrell & Co |
| COUNSEL FOR THE RESPONDENT: | Ms Morosini |
| SOLICITOR FOR THE RESPONDENT: | Di Morosini & Co |
Orders
That the husband and wife shall have equal shared parental responsibility for F born … 2001 (“F”), G born … 2004 (“G”) and H born … 2012 (“H”) collectively (“the children”).
The children shall live with the wife and spend time with the husband as follows:-
(a)F shall spend time with the husband at such times as may be arranged between the husband, the wife and F;
(b) With G and H as follows:-
(i)In week one from the conclusion of school (or 3 pm if a non-school day) Friday to the commencement of school (or 9 am if a non-school day) the following Monday and in each alternate week thereafter, commencing from the first weekend of the first term in 2018;
(ii)In week two from the conclusion of school (or 3 pm if a non-school day) Thursday to the commencement of school (or 9 am if a non-school day) Friday and in each intervening week thereafter;
(iii)During the Christmas school holidays with each parent for one half of Christmas school holidays at such times as may be agreed between the parties and in default of agreement:-
1. With the wife for the first week of the holiday period and each alternate week thereafter; and
2. With the husband for the second week of the holiday period and each alternate week thereafter;
NOTING that the school holidays shall be deemed to commence on the first Saturday of the Christmas school holiday period and shall conclude on the last Saturday of the holiday period.
(iv)For one half of all school term holidays at such times as are agreed between the parties and in default of agreement:-
1. With the husband for the first half of the holiday period;
2. With the wife for the second half of the holiday period;
(c)G and H shall live with the wife from 9 am on Christmas Eve 2017 until 4 pm on Christmas Day 2017 and in each alternate year thereafter;
(d)G and H shall live with the husband from 4 pm on Christmas Day 2017 to 6 pm on Boxing Day 2017 and in each alternate year thereafter;
(e)G and H shall live with the husband from the conclusion of school on Easter Thursday (if a school day) until 6 pm on Easter Saturday and in each year thereafter;
(f)G and H shall live with the wife from 6 pm on Easter Saturday until 6 pm on Easter Monday and in each year thereafter;
(g)G and H shall spend time with each party on the children’s birthdays and the parents respective birthdays at times as may be agreed between them;
(h)G and H shall live with the wife on Mother’s Day from 6 pm on the Saturday before Mother’s Day until the children are returned to school on Monday;
(i)G and H shall live with the husband on Father’s Day from 6 pm on the Saturday before Father’s Day until the children are returned to school on Monday;
That both parents shall inform the other in writing at least fourteen (14) days in advance of any interstate holiday or forty two (42) days in advance of any overseas holiday that they intend taking the children on.
That in respect of any intended overseas travel, each shall provide to the other the following information:-
(a) An itinerary;
(b) Flight and/or accommodation details; and
(c) Contact details for the duration of the holiday.
That handover shall take place at the children’s school except if a non-school day then the husband shall collect the children at the commencement of his time from the wife’s home and he shall deliver the children back to her home at the conclusion of the time unless otherwise agreed.
Each party shall forthwith inform the other of any medical emergencies or serious illnesses or injury sustained by the children whilst in their care by telephoning the other parent as soon as it is practicable to do so and for that purpose each parent must keep the other notified of their mobile telephone number at all times.
Each party shall provide the other particulars of any medical treatment required or received by the children whilst in their care.
Each party shall provide the other with any prescriptions or prescribed medications for the children and the other parent shall administer those medications during the periods when the children are in their care.
Each party is to ensure that each child participates in his or her school or other extra-curricular activities whilst in their respective care.
That the parties do ensure that G is taken to any therapeutic medical treatment or other like appointments pertaining to her Autism whilst she is in their respective care.
In the event that the children are invited to a party or other special occasion at a time when the children are to spend time with the other parent, the wife or the husband as the case may be shall forthwith upon receiving such an invitation provide the other parent with a copy of such invitation to enable the other parent to respond as they may choose.
That the parties are restrained and an injunction is granted restraining each of them from discussing adult issues including information relating to these proceedings with or in the presence of the children or allowing any other person to do so and from denigrating the other party in the presence of the children or allowing any other party to do so.
That in full and final settlement of all claims that either party has against the other by way of property settlement pursuant to the provisions of the Family Law Act 1975 (Cth) (as amended):-
(a)That on or before ninety (60) days from the date of this order the wife do pay to the trust account of Di Morosini and Co for and on behalf of the husband the sum of ONE HUNDRED AND FIFTY SIX THOUSAND EIGHT HUNDRED AND SEVENTY ONE DOLLARS ($156,871);
(b)That in accordance with Section 90MT(1)(a) of the Act whenever a splittable payment becomes payable from the superannuation interest held by the husband in the Australian Super Fund (account number 17803391):-
(i)The Trustee of the Australian Super Fund shall pay to the wife the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $109,455);
(ii)There shall be a corresponding reduction in the entitlement that the husband would have had but for these orders;
(iii)This order shall have effect from the operative time;
(iv)The operative time shall be four (4) business days after the date of service of this order (which service shall be affected by or on behalf of the wife);
(v)That this order binds and shall bind the Trustee;
(vi)Liberty to apply generally is reserved to the Trustee: and
(vii)Forthwith upon the preceding order having been carried out in full each party shall thereafter retain free of any claim or demand or right or entitlement of the other their respective superannuation entitlements.
(c) That henceforth the property in the following:-
(i)Furniture and effects in the husband’s possession;
(ii)The husband’s separate savings and investments;
(iii)Any life insurance and/or life assurance on the husband’s life;
(iv)The husband’s motor vehicle;
(v)The husband’s shares;
(vi)Any other real and/or personal property and/or financial resources of the husband in the husband’s name and/or possession otherwise specified herein shall vest in the husband absolutely free of all further claim or demand or right or entitlement of the wife.
(d) That henceforth the property in the following:-
(i)The Suburb E property registered in the wife’s sole name;
(ii)The furniture and effects in the wife’s possession;
(iii)The wife’s separate savings and investments;
(iv)Any life insurance and/or life assurance on the wife’s life;
(v)The wife’s motor vehicles;
(vi)Any real or and/or personal property and/or financial resources of the wife in the wife’s name and/or possession otherwise specified herein shall vest in the wife absolutely free of all further claim or demand or right or entitlement of the husband.
(e)That the husband do indemnify the wife and keep her indemnified in respect of the following:-
(i)Any loss or liability (taxation or otherwise) incurred by him whether past, present or future arising from the sale of the Suburb J property and/or the Sydney property;
(ii)Any loss or liability or claim whether past, present or future arising from or associated with the husband’s criminal law proceedings;
(iii)Any and/or other liabilities of the husband or in the husband’s name whether past, present or future and now so ever arising.
(f)That the wife do indemnify the husband and keep him indemnified in respect of the costs agreement in the sum of SEVEN THOUSAND DOLLARS ($7,000) in favour of B Pty Ltd and Mr C Brewster.
(g)That each party do all such acts and sign all such necessary documents to give effect to the terms of these orders.
(h)That each party shall (subject only to compliance with the specific provisions of this order):-
(i)Release the party from any liability for any claim that either one may have against the other in respect of any property and/or financial resource present or future whether at law or in equity, vested or contingent either now or hereafter owned by either of them;
(ii)Discharge without calling upon the other to contribute thereto their several debts contracted for or by them.
(i)That in default of the payment of the settlement sum and in circumstances where the said default shall be outstanding for a period of thirty (30) days THEN the parties will do all things necessary to place on the market for sale by private treaty or public auction the wife’s property situate at Suburb E upon such terms and conditions as the parties may agree but in default of agreement as may be ordered by this Honourable Court and from the net proceeds of sale the husband shall be paid so much of the settlement sum as shall be outstanding at the time together with interest calculated in accordance with Rule 17.03 of the Family Law Rules 2004 (Cth), with the balance if any to be paid to the wife.
(j)That if either of the parties refuse or neglect to execute any document necessary to give effect to the terms of these orders within seven (7) days after the same shall have been tendered to him or her for that purpose THEN in such a case a Registrar of this Honourable Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute any such document on behalf of either party and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and execute all such other documents as may be required to give full force and effect to the orders and shall execute and do the same accordingly.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brewster & Brewster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1992 of 2015
| Ms Brewster |
Applicant
And
| Mr Brewster |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Initiating Application filed 30 August 2017 Ms Brewster (“the wife”) seeks both parenting orders in respect F born in 2001 (“F”), G born in 2004 (“G”) and H born in 2012 (“H”) (collectively “the children”) and settlement of property.
By Amended Response filed 18 September 2017 Mr Brewster (“the husband”) opposes the orders sought by the wife.
On 28 July 2015 B Pty Ltd & Mr C Brewster were joined as parties to the proceedings (“the intervenors”). On the first day of trial their interests in the property proceedings was resolved by way of consent order. The intervenors’ interest related to a property situate at I Street, Suburb J (“the Suburb J property”). The wife denied they held a collective one third share in the Suburb J property and that the husband held the share on trust for the intervenors.
The Suburb J property was sold on 30 July 2015. As at August 2017 the net proceeds of sale was in the sum of $1,332,194. The consent order provided that the husband and wife do all things necessary to pay each of the intervenors the separate sum of $392,775 plus interest.
By joint advice on 24 November 2017 it is an agreed position that the intervenors received the total sum of $835,449 leaving a balance available for distribution between the parties of $507,211.
The focus of the outstanding parenting considerations is narrow. The parties agree that they should each have equal shared parental responsibility for the children, that they should live with the wife, with F spending time with the husband subject to his wishes and that G and H should spend four nights per fortnight with the husband. The parties are not agreed whether the husband’s time should be taken in a block or as the wife contends, for two days in each week.
By reference to the orders sought in the Amended Initiating Application, the parties are in general agreement as to the ancillary matters in paragraphs 17 to 34.
There is general agreement as to the assets and liabilities of the parties and their separate superannuation entitlements. The parties do not agree the treatment of monies received by each of them by way of partial property settlement and the extent to which legal fees both in relation to these proceedings and in the case of the husband criminal and other proceedings should be brought to account.
The husband seeks an adjustment of 60 per cent of the non-superannuation property and each seek 60 percent of the superannuation entitlements.
DOCUMENTS RELIED UPON BY THE WIFE
The wife relies upon the following documents:-
a)Amended Initiating Application filed 30 August 2017;
b)Financial Statement filed 30 August 2017;
c)Wife’s Trial Affidavit filed 31 August 2017;
d)Affidavit of the wife filed 24 October 2017;
e)Affidavit of Siobhan Parker (wife’s solicitor) filed 23 October 2017.
DOCUMENTS RELIED UPON BY THE HUSBAND
The husband relies upon the following documents:-
a) Amended Response filed 18 September 2017;
b) Financial Statement filed 18 September 2017;
c) Husband’s Trial Affidavit filed 18 September 2017.
BACKGROUND
The wife was born in 1971 and is 46 years of age. The husband was born in 1966 and is 51 years of age. The parties commenced a relationship in 1999 and married in 2001. There are three children of the relationship. The parties separated on two occasions between 2008 and 2010 with the second occasion occurring for a period of 12 months. The parties finally separated on 21 February 2013.
Throughout the relationship the husband was employed on a full-time basis at N Org. That employment was terminated in 2006. The husband then took up employment in the public service in South Australia in June 2006 but was stood down from his employment on 30 May 2013.
There were various criminal charges that were laid arising from his employment.
The husband’s most recent employment was terminated on 10 April 2015. He is presently studying to obtain a law degree but is otherwise unemployed.
At the date of marriage the wife worked on a contract basis. She holds the qualification of a Bachelor Degree in her profession. Generally, she undertook the role of homemaker and cared for the children on a full-time basis.
PARENTING ISSUES
The wife’s proposal is that G and H spend two nights in each week with the husband during school terms and one half of all school holiday terms as may be agreed between the parties, but in default of agreement with the husband for the first half and the wife for the second half. The arrangements for the Christmas school holidays whilst reflecting an equitable division of the time are again to be the subject of agreement, but in default on an alternate week basis.
There is little effective disagreement between the parties save that the husband seeks fortnightly time with the children over a four day block period.
The wife bases her opposition to the husband’s proposal on her concerns as to the presentation of the children, their resilience and his to promote their development.
There is no disagreement that G has been diagnosed with Autism on the mid to moderate spectrum. The wife considers that G is “making slow but gradual progress” at school.
G does not currently receive any formal therapy. The wife considers that occupational, speech and behavioural therapy still have a significant role to play with G’s development but subject to NDIS funding she is not able to meet the ongoing costs. G is currently undertaking a program to prepare her for advancement to secondary school.
It is the wife’s observations that G needs regularity and predictability in her daily life and routine. A change in the child’s arrangements can induce anxiety and distress.
The wife is critical of the lack of endeavour on the part of the husband to acquaint and educate himself with G’s needs. She does not consider that he is able to appropriately put in place the necessary therapies to enable the child to cope with her day to day needs.
As a matter of importance (and the subject of strong comment by the family consultant), the wife highlights that the child’s personal hygiene and grooming is becoming a critical focus. G has entered puberty and the wife complains that on occasion the child has returned to her care with blood evident on her clothing and body reinforcing the wife’s belief that without assistance the child is not able to keep herself clean.
The wife summarises her concerns at paragraph 134 of her trial affidavit:-
[G] requires a high level of care to adequately meet her needs. She requires:-
(a)A high level of attention and supervision;
(b)Constant assistance with basic life skills;
(c)Daily assistance with her personal hygiene and grooming;
(d)Support and guidance with regulating her emotions;
(e)Detailed, specific, repetitive teaching about everything from her cognitive/intellectual development, social behaviours, protective behaviours, verbal communication, safe and unsafe behaviours/situations both in and out of the home as well as full understanding of how to implement all of the modes of therapy that she needs in her daily life.
The wife contents that the child has not asked to spend more time with her father and does not believe that the child will cope with increased time given the manner in which her Autism manifests itself.
H is in Reception. The wife considers that he is coping well but he needs intensive intervention given a report from H’s teacher that there may be some difficulty with literacy and numeracy.
The wife considers that the husband has never taken the opportunity to involve himself with the education of either of the children and if the level of involvement as sought by the husband were to increase, she does not consider that he will be able to cater for their separate needs.
It is also important to the wife that the children’s time be spent together.
For his part, the husband contends that he had an active engagement with the children. He would take them to appointments with various health professionals and in relation to G he says that he and the wife took it in turns to attend her therapeutic sessions.
Whilst there has been conflict between the parties, in a general sense he has had the children for two or three nights a week since separation.
There have been occasions when the children were in his care for seven nights a week and it was not unusual for the children to be in his care during school terms for three to four nights a week.
The husband complains that often the wife leaves the children in the care of the maternal grandparents, her brother and even neighbours and other babysitters rather than offer the husband the opportunity to care for them.
The husband denies that he has had no involvement with the children’s education and he refers to communication with H’s headmaster and class teacher. He does not agree that H poses any issues either in terms of health or behaviour.
Whilst there is no disagreement that G has been diagnosed with Autism Spectrum Disorder, the husband speaks comprehensively of the expanding relationship that he has with G and he does whatever is required to ensure that he is attuned to the child’s needs. He asserts that he has a dialogue with G’s teachers and is vigilant for the first sign of G becoming dysregulated.
He does not share with the wife’s misgivings as to his ability to cope with the children.
In cross examination the wife conceded that at times the husband could be considered a “good dad” but at other times he isn’t.
She has concerns in respect of discipline issues and considers that notwithstanding his protestations to the contrary, it is her observation that he lacks responsibility in making sure that the children’s needs are met.
In evidence, both parties impressed as having a strong focus on the needs of their children. There is however considerable mistrust between them and it is likely that this aspect colours their attitudes towards each other.
FAMILY CONSULTANT
Ms V (“family consultant”) conducted interviews with the parties and the children in September 2017 and obtained information from various health professionals which informed her report dated 9 October 2017.
At the time of interview and assessment the husband proposed that the children live week about between the parties. In evidence, the family consultant was asked to consider the more narrow issue of whether the children should spend a four night block period with the husband.
The parties have agreed that F’s time with each of them will be subject to his wishes. Their concession recognises that F is 16 years of age.
In interview F was not positive in describing his experience spending time with the husband. It appears that the principal concern arises from the husband’s cramped conditions in a “granny flat” consisting of a bedroom, a kitchen and living area and bathroom.
He also considered that his father lacked vigilance in terms of supervision of the younger children and there appeared to be a lack of respect for the husband.
Of his mother, he considered that she struggled emotionally and was quick to outbursts of anger. He spoke of each of them needing time away from the other. He considered that the wife may be depressed and the environment in the wife’s home was fraught with tension, particularly at times when H and G were dysregulated, rebellious and at times aggressive.
Perhaps as a reflection of the differing ages of the children, H reported that his visits with his father were fun and he considered that both his mother and his father were the “most special people in his life”.
The family consultant recorded that G was only able to provide limited information. It was clear that she struggled with language, comprehension and expression. The objective observations of F was that G was comfortable in close proximity to each of the parties.
The anecdotal information received from H and G’s teachers confirms that each of the parties but more so the wife had contact with the children’s schools, that generally the children’s physical needs were appropriately met and G’s teacher confirmed the wife’s observations that G required routine in her life and that the more she is settled the less anxiety is experienced and displayed.
The parties confirmed what is easily demonstrated by the ongoing litigation namely, their ability to communicate with each other was poor and that there is a high level of mistrust. The husband recognised that the wife considered him to be unreliable as a parent and not a good father. For his part, the husband considered the wife’s actions were designed to limit his involvement with the children and the ability to remain engaged. He did however concede that the wife was “a good person and a good mother and wanted what was best for the children”.
The family consultant recognised that the children’s needs were considerable and whilst not promoting equal time, did consider that the children’s interests would be served by them spending four nights a fortnight with the husband as the preferred option.
The family consultant made the point that “[the husband] needs to consider that providing care during school holiday periods is different from that required during school terms, given the considerably reduced demands”.
In evidence, the family consultant considered that the wife’s proposal should be preferred. She considered that in any other circumstances a four day block would present no difficulties. Her concern however was in respect of G and in particular the issues surrounding the child’s hygiene as she saw them.
The concern of the family consultant appears to be the ability of the father to cope with intimate personal activities in respect of G’s bathing and hygiene requirements.
She did not consider it appropriate that the husband (or F) should supervise G in the shower. She emphasised that G had been diagnosed with Autism Spectrum Disorder and diminished intellect.
I was not persuaded by the evidence of the family consultant. Whilst it was difficult for the family consultant to consider the current proposal of the husband in circumstances where her report was based upon a contest as to shared care or four nights a fortnight, the concerns as expressed by the family consultant were difficult to reconcile in terms of the parties confirmed agreement that the children’s school holidays would be shared between the parties.
Issues in respect of G’s hygiene and grooming are matters likely to arise at any time.
PRINCIPLES RELEVANT TO PARENTING ORDERS
The children currently reside with the wife and spend two nights each week with the husband. The parties have also agreed that school holidays will be shared between them.
The parties are also agreed that they shall have equal shared parental responsibility for the children.
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires the best interests of the children to be the paramount consideration. The best interests test is to be considered by the application of the objects of s 60B(1) by reference to the primary and additional considerations as set out in s 60CC(2) and (3).
In the circumstances of this case, neither party seeks to rely upon s 60CC(2A). It is not suggested that either party presents as a risk to the children or each of them.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2).
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests.
(4)Have regard to the primary considerations under s 60CC namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.
(5)Have regard to the additional considerations under s 60CC(3).
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA required the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
In the present circumstances the parties are agreed that they should each have equal shared parental responsibility. Neither party seeks to rebut the presumption.
If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) then s 65DAA requires the Court to consider whether there should be an order for equal time. That situation is not relevant to the current circumstances where the parties agree that the children (noting that F’s wishes determine the time that he spends with each of the parties) should live primarily with the wife and spend time with the husband that would be considered significant and substantial.
PARENTING CONSIDERATIONS
The separate proposals of each of the parties recognise that it is important for these children to have a meaningful relationship with each of the parties. The wife does not seek to restrict the children’s time with their father, but considers that block time may distress G given that stability and predictability is important to her, could be unnecessarily disruptive.
The husband countered the wife’s argument by highlighting extensive time with the children is spent in his care and whilst raised as a point of difference by the family consultant, points to the ready agreement of the parties of sharing the school holidays.
There are no issues that arise in respect of the wishes of the children. F’s arrangement is subject to his wishes and this accords with the parties’ consent. G has difficulty in expressing herself whilst the parties are clearly attuned to her language, actions and behaviours, there is little evidence that could be considered a reliable assessment of the child’s views. The observations by F of G having a close and affectionate relationship with each party is potentially an important consideration. H clearly enjoys his time with his father and it is not suggested that there is any evidence to support any opposition to the father’s proposal.
Whilst there are difficulties between the parties in terms of their ability to facilitate and encourage the children’s relationship with the other, nonetheless they have been able to put aside at least some of their differences and the evidence supports the finding that whatever their own personal feelings may be, each party recognises that the children benefit from a relationship with both parents.
The wife’s concerns resonate in a consideration of the capacity of the parties to meet the children’s needs. The wife does not think the husband can appropriately meet the children’s needs, but in particular those relating to G if his time is spent in a four night block during school terms.
The evidence does not support the full extent of the wife’s contention of the father’s inability to provide an appropriate level of parenting.
However appalling the relationship between the parties has become, the history is of the children spending significant time with the husband. Moreover, the parties are agreed that the husband should have half of all school holidays with Christmas to be taken on an alternate year basis.
Issues in respect of G are not so much dependent upon school preparation and organisation but rather the ability of the husband to properly cater for G’s needs. I do not consider that the evidence in respect of matters relating to H would be sufficient to speak against the husband’s proposal.
The wife however has the primary care of the children and is likely to be more appropriately attuned to her needs. The concern expressed by her in respect of the husband’s ability to provide appropriately for G is not age related but rather a reflection of her challenging presentation.
The children are in a settled arrangement and any alteration must factor in regularity and predictability for the children.
I propose to increase the husband’s alternate weekend time to three nights, but maintain the fourth night to occur in the intervening week.
The parties are largely agreed as to ancillary orders and I propose to reflect that outcome by reference to orders sought by the wife in her application.
PROPERTY SETTLEMENT
The parties seek that the Court adopt a two pool approach to a consideration of the property and superannuation interests of the parties.
LEGAL PRINCIPLES TO BE APPLIED
The parties seek an alteration of their respective interests in property and I take into account that the parties no longer live in a marital relationship and do not have the benefit of common or shared property.
Section 79(2) of the Act provides:-
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.
“Property” is defined in s 4(1) of the Act as meaning:-
…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion…
In Stanford v Stanford (2012) 247 CLR 108 the majority held:-
[35]It will be recalled that section 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…
Importantly the Court found at [39]:-
…whether it is “just and equitable” to make the order is not to be answered by assuming that the parties rights to or interests in marital property are or should be different from those that then exist…
I am satisfied in the circumstances of this case, particularly where both parties seek an alteration of property interests that it is just and equitable for the Court to embark upon an adjustment of property. The marriage is of significant duration, there are three children of minority age and the parties each made a mutual commitment to each other.
There is substantial agreement between the parties as to the identity and value of their interests in property. At the commencement of the proceedings counsel tendered a joint balance sheet which sets out the parties’ assets and liabilities.
The interests of the parties that appear uncontroversial are as follows:-
Assets
Suburb E property (wife)
$660,000
Proceeds of sale of Suburb J
$507,211
Motor vehicle (wife)
$ 4,000
Ford motor vehicle (husband)
$ 6,000
Telstra shares (husband)
$ 3,500
Liabilities
Capital Gains Tax – Sydney property (husband)
$ 46,553
Capital Gains Tax – Suburb J property (husband)
$274,596
Superannuation
Super Fund (husband)
$265,436
Super Fund (wife)
$ 15,033
Public Sector Super (wife)
$ 106
Q Super (wife)
$ 3,027
The parties remain in dispute as to the treatment of funds expended by the parties on legal fees and other personal expenses from monies received by way of orders of partial settlement of property. There has also been some expenditure by the wife on school fees in the sum of $6,138 and a small loan from the wife’s family in the sum of $2,000.
ORDERS FOR PARTIAL SETTLEMENT OF PROPERTY
By order made 15 September 2015, each of the parties received the sum of $90,000 by way of partial settlement of property. Of the monies received by the husband $30,000 was ordered to be paid in relation to a costs order against the husband arising out of unsuccessful civil litigation.
By further order made 10 June 2016 the parties each received a further $100,000 by way of partial property settlement. $60,000 of that sum was used by the wife on account of outstanding and anticipated legal costs, with the balance being used for daily living costs and household expenses for the wife and the children.
The husband became involved in civil proceedings against his former employer. It appears that the litigation was unsuccessful and the husband incurred significant costs totalling $81,425. Following the resolution of the litigation the husband then faced charges of fraud. He has incurred significant legal fees in respect of those proceedings which remain stayed pending the finalisation of proceedings in this Court between the parties. To date the husband’s legal fees are in the sum of $73,350.
Following the termination of his employment with the N Org, the husband commenced employment with the public service in August 2006. The fraud charges and a subsequent corruption investigation caused the husband to incur further legal costs.
The husband seeks that the legal costs incurred should be treated as a matrimonial debt.
The monies received by the husband by way of order for partial settlement of property have been utilised primarily in the payment of legal fees for these proceedings in the sum of $79,912 and other legal costs that the husband says total $213,989. It is also the case that the husband has funded further legal costs by way of a personal loan.
LEGAL COSTS
At the commencement of the proceedings each counsel tendered a costs statement which now forms Exhibit “2”. As at the date of the commencement of trial the wife had incurred total costs and disbursements of $125,192 of which $107,567 had been paid from the partial property settlement funds. The balance of costs paid came from some private savings by the wife and assistance from her father. The estimated costs to be incurred for trial preparation and counsel fee was in the sum of $43,000.
The husband has paid $79,912 to his solicitors for these proceedings and a further $134,077 for legal costs relating to other proceedings.
In Chorn & Hopkins (2004) FLC 93-204 the Full Court considered the approach to legal fees incurred (and paid) by parties in the following paragraphs:-
[55]This decision appears to confirm the principle that where the payment of legal costs can be regarded as a premature distribution of funds (in which both parties have an interest), it is appropriate to addback those costs as a notional asset. It also confirms the principle that where funds have been borrowed to pay legal fees, and such liability is still outstanding, neither the payment of the fees nor the liability should be taken into account. The decision also supports the proposition that where it is determined that a payment of legal fees should be taken into account as a notional asset, any outstanding liability in respect of those fees should also be taken into account.
[56]In summary, we consider that the abovementioned decision of the Full Court established that, while the treatment of funds used to pay legal costs remain ultimately a matter for discretion of the Trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
[57]If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the parties, who has had the benefit of them.
[58]If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the party. Funds generated from assets or businesses to which the other party has made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
[59]Outstanding legal fees themselves are generally not taken into account as a liability.
[60]If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.
At separation the parties owned a property at Suburb L. They agreed that following some renovations to be conducted by the wife the property would be sold. The balance of the proceeds received was $718,418. This sum was applied to repay money provided by the wife’s family to assist in the maintenance and renovations to the Suburb L property, with the balance to be used predominantly by the wife to purchase her current property at Suburb E.
The children and the wife subsequently moved into the Suburb E property and she meets the expenses on an ongoing basis. The husband’s initial position is that the entirety of the money received by the wife being $718,418 from the sale of Suburb L and $190,000 by way of partial settlement of property should be added back.
The wife argues that whilst it is reasonable for the Suburb E property to be included in the pool at $660,000, the costs of acquiring the property including stamp duty and other related transaction costs should not be brought to account. She concedes that her legal fees of $107,567 should be added back, but any other money received by her has been spent on family living expenses reasonably incurred.
She argues that she should not be obliged to contribute to the husband’s legal fees incurred as a result of his unsuccessful civil litigation, criminal and other proceedings.
In Kowaliw & Kowaliw (1981) FLC 91-092 Baker J held as follows:-
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial asses, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in Kowaliw (supra) which may have an economic consequence is a relevant consideration under s 75(2)(o).
For differing reasons each of the parties seek the inclusion of money as a direct add back.
In La Costa & La Costa (2008) 38 Fam LR 412, the Court quoted from Chorn & Hopkins (supra) where at [42] the Full Court cited the decision of Marker & Marker [1998] FamCA 42:-
2.10It is well settled that save in exceptional circumstances a trial Judge should deal with the property as at the date of the hearing and make adjustments taking into account the various matters as set out under s. 79. (Wells v Wells (1977) FLC 90-285); Wardman v Hudson (1978) FLC 90-466; In the Marriage of Geyl 7 Fam LR 219). However, the particular justice of the case may make it appropriate to notionally add back assets which have been demonstrated to have been dissipated either during the marriage or post-separation. Normally it is necessary to demonstrate an appropriate basis for doing so, for example by wastage such as gambling or extravagant living. (Kowaliw v Kowaliw (1981) FLC 91-092…). Additionally, because of the requirement for each party to bear their own costs, it is generally appropriate to add back to the pool of assets notionally any legal costs that have been spent on the litigation and to deal with the costs as a separate issue at the end of the litigation. (see Farnell (1996) FLC 92-681).
In Watson & Ling (2013) FLC 93-527 Murphy J considered that even in those cases where “waste” or “premature distribution” is established by necessary implication, title (both legal and equitable) will have passed.
The wife alleges significant waste by the husband in respect of the legal fees and costs paid by him for litigation in criminal proceedings other than the current proceedings. She contends that the entirety of the $190,000 received by the husband by way of partial property settlement should be added back to the pool of assets.
She also refers to the period between October 2007 and December 2010 where she alleges that the sum of $299,450 was drawn down against various loaned facilities. She complains that the husband’s conduct is compounded by his refusal to make proper disclosure. It is not suggested that the monies allegedly drawn down by the husband have been retained by him. It is a reasonable assessment that if the wife’s assertion has substance the money has in some way been dissipated to her disadvantage.
The husband denies the wife’s allegations. He refers to the purchase of a property at Suburb U as resulting in severe financial detriment to the parties.
He acknowledges that $299,450 was drawn down against loan number …92 being the Suburb U loan facility. His general proposition is that the parties’ lifestyle and the costs incurred in moving from one property to another was not able to be funded from income and therefore required capital outlay.
He provides some detail of expenditure at paragraph 89 of his trial affidavit but his general position is that he has not gained any personal benefit.
The husband agreed that he was aware that the wife was critical of his lack of disclosure of documents.
He was referred to proceedings before a Judge of the Federal Circuit Court on 28 July 2015. The husband put to the Court that he needed money for appropriate accommodation. What was apparently not disclosed was that the day prior to the Court appearance he had entered into a tenancy agreement for a property at Suburb E. Exhibit ‘6” introduces a Residential Tenancy Lease Agreement for 27-28 July 2015.
Notwithstanding the document, the husband asserts that it was only a few hours after the Court hearing that he received confirmation of a successful acceptance of him as a tenant. When asked whether he had informed the Court, the wife or his solicitors about the Suburb E premises, he responded that he had not. However, he asserted that the wife had inspected the premises. The husband was challenged and the evidence supports a finding that the wife could not have inspected the premises before the husband had taken up occupancy.
In a general sense whilst the husband’s evidence suggested that more could have been done to produce documents that would have allayed many of the wife’s concerns, I am satisfied on the evidence that whatever money may have been drawn down by the parties or the husband in particular has been dissipated on lifestyle and other living expenses. I am not able to find on the balance of probabilities that the husband willingly, wantonly or negligently dissipated monies drawn down from various loan facilities to a level that would invite consideration of an add back (see Kowaliw v Kowaliw (supra)).
Each of the parties consider that their separate expenditure from funds derived from the orders for partial settlement of property in excess of their legal costs arising from these proceedings should be added back.
Whilst it is not necessary to consider the matter with arithmetical precision, the wife spent money on the costs of the purchase of her current home and living and household expenses. The husband predominantly spent his money on his legal costs in respect of the various litigation and criminal proceedings that has consumed him for a number of years.
Whilst the wife raised the contention that the costs incurred by the husband in respect of his separate litigation was as a result of his own actions (or misdeeds), that was not pressed with any force during the proceedings, the husband was not challenged and accordingly I am not able to find that it is proper for money spent by the husband on legal costs to be entirely brought back to account as sought by the wife.
I am however inclined to add back to the proceedings the wife’s legal fees of $107,567 and a similar amount for the husband.
EDUCATION COSTS
F will complete Year 11 in 2018. There were outstanding school fees for F in the sum of $6,138. Whilst there is a concern that the financial circumstances of the parties may be such that F will not be able to continue at his current school in 2018 and beyond, the wife considered that it was important for F to complete Year 10 at his current school.
The wife received a lump sum family assistance payment from which she paid the outstanding school fees. She seeks that they be brought to account not as a current liability and outstanding but rather as requiring a contribution from the husband from his share of the property settlement the sum of $3,619.
The husband does not currently pay child support. The wife has been primarily responsible for the costs associated with the care of the children both domestically and also in terms of their education costs and extra-curricular activities.
If the account had not been paid then it would be reasonable for it to be brought to account as a liability of the parties.
I propose to order that from the husband’s entitlement he reimburse the wife for one half of F’s school fees paid by her.
THE WIFE’S LOANS TO FAMILY MEMBERS
The wife has borrowed money from her parents and members of her family since separation. She owes her parents $10,000 and $2,000 to Mr and Ms W. At paragraph 322 of her trial affidavit she asserts that the sum of $2,000 was loaned in 2016 to pay for a school trip for F to X Town and other outstanding bills.
I do not consider that enough evidence has been provided by the wife in respect of the use of the $2,000 as borrowed.
I have already found that the wife has utilized monies she received by way of partial settlement of property on her living and other expenses. There is no evidence as to whether the husband was aware of a potential expense in respect of F attending a school trip to X Town.
Whilst the financial circumstances of the parties in terms of any liability owed to third parties is a relevant consideration pursuant to s 75(2) of the Act, I do not consider that there is sufficient certainty in respect of the purported loans to include it as a liability of the parties.
THIRD PARTY COSTS
Following the claim of the third parties to these proceedings being settled by a Consent Order and Deed of Settlement and Release, agreement was also reached that the wife would be liable for the costs of the third parties fixed in the sum of $7,000.
The husband contends that he did not promote the wife’s claim that the third parties did not have an interest in the Suburb J property and accordingly, when she was wholly unsuccessful it is reasonable that the wife be responsible for the costs incurred.
The settlement of the third parties claim meant that they were not involved in the final proceedings. The husband was not subjected to any cross examination in respect of the Suburb J property and the manner in which it was acquired and accordingly it does not seem reasonable that whatever may have been the reason for the wife’s capitulation, it could not be said that the husband provided her with any support or encouragement in relation to her refusal to accept the third party interest in Suburb J.
I do not propose to bring to account as a liability of the parties the agreed costs in the sum of $7,000. The wife will be required to settle the costs agreement.
ASSETS & LIABILITIES OF THE PARTIES
The following list of assets and liabilities are to be considered:-
Assets
Suburb E property (wife)
$660,000
Balance of sale proceeds of Suburb J (joint)
$507,211
Motor vehicle (wife)
$4,000
4WD (husband)
$6,000
Telstra shares (husband)
$3,500
Legal fees added back (wife)
$107,567
Legal fees added back (husband)
$107,567
Total
$1,395,845
Liabilities
Capital Gains Tax Sydney (husband)
$46,553
Capital Gains Tax Suburb J(husband)
$274,596
Total
$321,149
Net balance Assets & Liabilities
$1,074,696
CONTRIBUTION OF PARTIES
Each of the parties has made a valuable contribution to the acquisition, conservation and improvement of property.
The husband asserts that he has made a superior financial contribution and argues that he introduced the following valuable interest to the relationship:-
Sydney New South Wales
$105,000
Suburb J property (2/3 interest)
$666,000
Furniture and effects
$3,000
Savings
$40,000
Superannuation
$95,155
Total
$909,155
Mortgage on Suburb J property
$(265,271)
The husband considers that the wife brought into the relationship a motor vehicle and furniture of minimal value.
Whilst the wife accepts that her financial contribution at the commencement of the marriage was modest, she does not accept the value of the interests introduced by the husband. She argues that there is no supporting documentation, that the husband seeks to put himself forward as an expert in matters of valuation and that in any event from the husband’s own evidence the purchase of Suburb J was as a result of contribution by his family as opposed to the husband.
Sydney property
The husband purchased the Sydney property prior to cohabitation. Throughout the relationship the paternal uncle lived in the property until 2006 when it was leased and rental income was received. There is some dispute between the parties as to whether monies were received by way of rent from the occupation of the husband’s uncle.
Following separation in 2013 the property was sold for $445,000. The net proceeds of sale were $397,377. The parties dispute the distribution of proceeds other than an acceptance that $22,000 went towards the payment of the husband’s credit card. $246,000 was used to pay a mortgage and $36,000 to repay a trust loan. The wife contends that the husband has not provided full and frank disclosure with respect to the distribution of proceeds and that monies were dissipated.
It would seem uncontroversial that somewhere between $246,000 and $282,000 was used to discharge liabilities potentially of the parties. That must be considered a valuable contribution subject to the consideration of capital gains tax agreed in the sum of $46,553.
In the absence of evidence as to value of the Sydney property at the commencement of cohabitation, it is difficult to quantify with any precision the contribution that may be represented by the husband’s interest in Sydney.
I nonetheless consider that weight should be given to the introduction of the Sydney property in circumstances where there is not substantial evidence as to the extent to which the parties incurred outgoings in order to maintain the property during the course of cohabitation.
Suburb J property
Notwithstanding that the husband was the sole registered proprietor, it was his position that he held a two thirds interest in the Suburb J property prior to marriage. B Pty Ltd as trustee for Y Trust and Mr C Brewster each held a one sixth interest in the property.
The property was purchased for $465,000 prior to cohabitation.
The property consisted of five units which were individually tenanted throughout the relationship for $290 to $450 per week. The parties received all of the rental income and paid 100 percent of the outgoings.
The husband deposed that in 2013/2014 the rental income was approximately $54,860 per annum. The income was used to maintain the property, pay outgoings and the repayment of two mortgages of approximately $1,000 per week.
Following separation, the husband occupied a unit at the Suburb J property. The property was sold in July 2015 with the husband receiving net proceeds of $1,694,062. It was accepted that the property would incur capital gains tax.
The wife filed an urgent application in 2015 alleging that the details of sale were kept from her and sought orders that would secure the proceeds of sale pending final settlement of property.
The husband’s evidence is that the contract for sale of the Suburb J property originally showed the purchaser as being the husband’s father and/or nominee. The deposit was paid by his father on behalf of the trust.
There was apparently some contention between the husband, his brother and the trust as to how the Suburb J property would be held. It is the husband’s position that whilst the title reflected that he was the sole registered proprietor, it was always intended that he would hold a one third interest in trust for his brother and the trust.
The income from the property equalled the outgoings.
It is the husband’s evidence (and not contested in cross examination by the wife) that the deposit of $45,600 was by way of a cheque paid on an account in the name of Y Trust.
The husband contends that in 1998 he did not have sufficient monies for a deposit, nor to make up the one third of the purchase price being $111,594. He says that he had no capacity to pay either the deposit or his contribution to the purchase.
Accordingly, the wife argues that at the date of marriage there is no evidence as to the value of any equity in the Suburb J property and that in all probability, have being acquired in early 1998, little value would have accrued by the date of marriage being 24 February 2001.
The Suburb J property did not provide any financial support for the family from the date of marriage to the date of sale. It did provide a benefit to the husband who took up occupancy in one of the units following separation. It could not be said that the wife gained any benefit from the husband’s residency.
The balance of the proceeds is $507,211 and there is the corresponding liability for capital gains tax of $274,596. The amount as reflected in the assets and liabilities of the parties is therefore the net sum of $232,615.
In addition, the parties also received the benefit of the orders for partial settlement of property totalling $380,000.
The combined financial advantage to the parties has accrued by reason of the efflux of time and the likely increase in value since at least the date of marriage. In addition the rental income has reduced the underlying mortgage liability.
There is no evidence that the husband’s two third interest in Suburb J had a value of $666,000 less the mortgage of $265,271 prior to cohabitation.
Whilst it is reasonable to bring to account some advantage to the parties by the husband’s interest in the property generally and the relationship that existed with his family, it must be given significantly less weight than that proposed by the husband.
I do not propose to bring to account the husband’s assertion in respect of furniture and effects or savings in the absence of any evidence to support the contention.
Whilst there does not appear to be any argument as to the husband having an entitlement to superannuation at the date of commencement of cohabitation, this must be given a separate consideration when dealing with the respective superannuation interests of the parties as required by a two pool approach.
During the early period of the marriage both parties were employed. After the birth of F the wife did not engage in paid employment but rather took on the role as a homemaker for the husband and the children.
There is no complaint by the husband in respect of the activities of the wife other than the dispute between them and the increasingly dysfunctional relationship leading to the separation of the parties.
The wife concedes that the husband worked hard and generally provided the family with a good income.
Whilst the wife was later mistrustful of the husband and considered that he had accessed the loan facilities of the parties for purposes that are still uncertain, I find that the parties relationship like many others was generally one of joint endeavour designed to promote the welfare and financial wellbeing of the family.
I consider that for the period of cohabitation the parties contribution should be considered as equal notwithstanding the husband’s contention some rental income may have been derived from the Sydney property.
Following separation and the termination of the husband’s employment, the wife was effectively solely responsible for the financial wellbeing of the children.
The payments made by the husband were recommenced on 20 July 2017 in the sum of about $48 per week. No child support was paid to the wife between April 2015 and July 2017.
The husband does not deny that the wife was solely responsible for the payment of school fees and medical costs for the children and that he did little by way of providing any financial assistance to the wife either for herself or for the children.
The wife relied upon her interim settlement of property and a Centrelink pension benefit or allowance.
The wife contends that the husband presently owes about $30,000 in child support arrears.
The husband does not accept that there are arrears of child support. Because of the predicament of the husband in terms of litigation he has not been able to update his income tax returns for the 2013/2014 and 2014/2015 financial years. Accordingly, his child support continues to accrue at the rate of $662 per week.
The husband should get no credit for his inability to place his affairs in order.
There has been uncertainty created by the husband’s refusal and/or inability to bring his taxation affairs to a position of finality. I am however satisfied that the husband is not working and has not done so for some considerable period of time.
It is likely that upon the filing of the taxation returns the Registrar of Child Support will give some consideration to an amended assessment of any arrears that may be outstanding.
The evidence supports a finding that the wife’s contribution post-separation was superior to that of the husband.
The question of the weight to be given to the parties contributions was the subject of comment by the Full Court in Pearce v Pearce (1999) FLC 92-844 at page 85,881:-
[28]In our opinion it is not so much a matter an erosion of contribution but a question of what weight is to be attached in all the circumstances, to the initial contribution. It is necessary to weigh the initial contribution by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contributions, in this case 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 former matrimonial home… (citations omitted).
In considering the parties respective contributions, I bring to account the significant advantage to the parties by the use of the net proceeds of the sale of the Sydney property and to a lesser extent the advantage provided by the husband’s family in respect of the Suburb J property (see Kessey & Kessey (1994) FLC 92-495).
Whilst weight must be given to the wife’s contribution post-separation in terms of the care of the children in the absence of any significant contribution or assistance from her husband, nonetheless contributions of the parties should be reflected as 55 per cent/ 45 per cent in favour of the husband.
FACTORS RELEVANT TO S 79(4)(e ) S 75(2)
The husband is currently 51 years of age. The wife is 46 years of age. There are no adverse health considerations affecting the wife. However, the husband’s health is uncertain. He underwent throat cancer surgery in 2014 and of recent date has completed radiation treatment. There is an uncertain prognosis as to whether the husband is in remission.
He also says that he receives therapeutic counselling for stress.
He seeks employment and whilst currently undertaking a Bachelor degree does not expect to be able to engage in remunerative employment for several years.
He is in receipt of a Commonwealth pension or benefit and his current level of child support deduction is $48.30 per fortnight.
He continues to be the subject of outstanding criminal charges and it is difficult for him to ascertain as to when they will be completed, whether there will be an adverse outcome and in any event the extent of the likely future legal costs to be incurred by him. It is his expectation that the total amount could be in the vicinity of $50,000.
For her part, the wife resides in the Suburb E property with the children.
The parenting orders will maintain effectively the current circumstances with the children spending four nights a fortnight with the father, although F’s attendance is subject to his wishes.
The wife receives a carer allowance, sole parent pension and Centrelink family assistance totalling $879 per week.
As has been the circumstances effectively since separation, the wife is responsible for the fees, charges and costs associated with the children, their education and extra-curricular activities. To date those costs have been met by the wife either from her Centrelink benefits and monies received by way of partial settlement of property.
Other than the relatively modest contribution to the financial support of the children paid by the husband, the entirety of their expenses falls to the wife.
She has also received some assistance from her family.
The wife holds a professional qualification. Her last venture into employment was in 2013 on a part-time basis. After four weeks she considered that the demands of the children’s care and the additional workload of part-time employment was onerous and she resigned her employment to focus on the children’s needs, in particular those pertaining to G.
It is unlikely that the wife will soon return to employment.
There was no significant challenge to the evidence of either party in respect of their future circumstances.
Whether it is just and equitable to make a further adjustment taking into account the factors pursuant to s 75(2) is predominantly concerned with the financial obligation that falls to the wife in respect of the care, welfare and maintenance of the children in circumstances where there is likely to be at best only a meagre contribution from the husband.
By reference to the age of the children, there is cumulatively about 17 years before they have all reached the age of 18.
Whilst there was no evidence presented as to the attendant costs pertaining to each of the children, I am entitled to find that it is likely to be substantial. In addition, the children, but in particular G and to a lesser extent F have significant ongoing health and behavioural management issues which will require intervention by health professionals.
Whilst it is difficult to see into the future, it is likely that G will require support and professional intervention for many years noting that the wife gains some assistance from the child subject to NDIS funding.
Taking into account the relatively modest pool, an adjustment of 12 per cent in favour of the wife would appropriately reflect the weight to be given to the relevant s 75(2) factors. In particular, I bring to account the likely further costs to the wife of borrowing money to pay the settlement sum as ordered to the husband. The overall adjustment is 57/43 percent in favour of the wife.
SUPERANNUATION
The parties have agreed that in adopting a two pool approach to the property and superannuation interests of the parties, separate consideration needs to be given to their separate superannuation interests.
The superannuation entitlement of the husband is $265,436 and the total of the wife’s separate superannuation interest is $18,166.
No evidence was presented by the husband to corroborate his assertion that at the commencement of cohabitation he held a superannuation interest of $95,000.
Whilst it is reasonable to assume that the husband’s history of full-time employment from 1990 to the date of marriage in 2001 would have resulted in an accumulation of superannuation, I am not able to find that the sum is as promoted by the husband.
No evidence was presented as to whether the husband’s superannuation entitlements were by way of accumulation or defined benefits.
The husband was not challenged in relation to his assertion as to superannuation and whilst I am not able to apply any arithmetical certainty, I can find on the evidence that the husband held a substantial superannuation interest as at the date of commencement of cohabitation.
The husband’s current superannuation entitlement is $265,436. There is no evidence to assist the Court in determining what component of the current superannuation balance is directly referable to the value of the husband’s interest held as at the date of marriage.
Whilst the wife could not be said to have made a contribution to the pre-marriage value of the husband’s interest in superannuation, she has clearly made a non-financial contribution as a homemaker during the course of the marriage and following separation.
Whilst each of the parties sought an adjustment of 60 per cent of the total superannuation entitlements, I was not assisted by either evidence or submissions as to the basis of the assertion.
Doing the best that I can, I consider it reasonable to give some weight to the likely circumstance that the husband held a valuable interest in superannuation as at the date of marriage. I consider that an adjustment of 55 per cent in his favour is justified on the evidence.
Taking into account the ages of the parties, the husband will not satisfy a condition of release for 13 years. By that time there will be no children under the age of 18.
The wife will not satisfy a condition of release for 18 years.
It is not possible to predict the circumstances of the parties as at the date that each of them will be entitled to access their separate superannuation interests.
No evidence was presented as to any particular aspects or benefits that flow from the terms and conditions of either the husband’s current fund or the wife’s proposal for investment of her superannuation entitlement following a superannuation splitting order.
In the circumstances as presented I do not propose to make any further adjustment in favour of either party.
Accordingly, the cumulative superannuation entitlements of the parties will be the subject of a splitting order as to 55 percent to the husband and 45 percent to the wife.
Exhibit “10” is a draft minute of a proposed superannuation splitting order that has been forwarded to the trustees of the husband’s superannuation fund namely, Australian Super Fund. Procedural fairness has been afforded to the trustees. Subject to a determination of the base amount being the splittable payment from the husband’s superannuation interest to a fund nominated by the wife, a superannuation splitting order can be made.
As discussed, the total superannuation interests of the parties is $283,602. At 45 percent the wife is entitled to retain a superannuation interest to the value of $127,621 less the amount of her superannuation interest of $18,166 leaving a balance of $109,455 to be the base amount in the order.
CONCLUSION
On the basis that the total of the non-superannuation interests of the parties is $1,074,696 at 43 percent the husband is entitled to $462,119.
The husband retains net property as follows:-
Assets
Balance of Suburb J property
$507,211
4WD vehicle
$ 6,000
Telstra shares
$ 3,500
Legal fees added back
$107,567
Total
$624,278
Liabilities
CGT Sydney property
$ 46,553
CGT Suburb J property
$274,596
Total
$321,149
Net balance
$303,129
The wife is required to pay a settlement sum to the husband in the sum of $158,990. From this sum the husband’s share of the school fees for F in the sum of $3,619 needs to be deducted leaving a balance of $155,371.
It also appears that the husband has paid the cost of the family consultant’s report at $3,000. It is reasonable that the parties share the costs of same and as such the sum of $1,500 should be added to the settlement sum with a final balance of $156,871.
Taking into account the wife’s circumstances, it is reasonable that she have 90 days to make payment of the settlement sum to the husband and in default the Suburb E property is to be placed on the market for sale.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and twenty-one (221) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 21 December 2017.
Associate:
Date: 21 December 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Costs
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Remedies
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