C & B
[2005] FamCA 94
•25 February 2005
[2005] FamCA 94
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA No CAF932 of 2003
AT CANBERRA
BETWEEN:
C
Applicant wife
- and -
B
Respondent husband
REASONS FOR JUDGMENT
CORAM: Chief Justice Bryant
DATE OF HEARING 7, 8 and 9 December 2004
DATE OF JUDGMENT 25 February 2005
APPEARANCES: Mr Batey of counsel, instructed by Farrer Gesini and Dunne, solicitors, 17-21 University Avenue, Canberra, ACT, 2601, appeared on behalf of the applicant wife.
Mr Sweeney of counsel, instructed by Chris Crowley and Associates, solicitors, Level 1, 65 London Circuit, Canberra, ACT, 2601 appeared on behalf of the respondent husband.
C and B CAF932 of 2003
Coram: Bryant CJ
Date of Hearing: 7, 8 and 9 December 2004
Date of judgment: 25 February 2005
CATCHWORDS FAMILY LAW – PROPERTY SETTLEMENT – CONTRIBUTIONS – JUST AND EQUITABLE – whether money advanced from a parent should be treated as a loan or gift – whether wife in defacto relationship – whether it is just and equitable to adjust superannuation interests separately from other assets.
FAMILY LAW – CHILDREN – RESIDENCE – SHARED RESIDENCE – best interests of child – whether failure of parties to communicate a determinative factor in whether there should be shared residence
REASONS FOR JUDGMENT
Introduction
The d ispute before the Court concerns parenting issues and property settlement. The parenting issues concern the youngest child of the parties, A, who recently turned 13. A lives with his mother and currently has contact with his father each second week from Friday afternoon after school until the commencement of school the following Tuesday morning. In addition A spends the following Monday with the husband for dinner and has some contact during school holiday periods. The husband is seeking a change to this arrangement which would involve A living with him for one half of the time on a week about basis. The wife wishes to continue the existing arrangements for A whereby he lives predominantly with her.
The issues between the parties regarding property were ultimately confined to a dispute largely about liabilities, contributions (but particularly contributions after separation) and how the assets should be divided having regard to the matters in s.75(2). In broad terms the wife seeks that the assets be divided as to 65% to her and 35% to the husband. The husband’s application seeks a division of the assets as to 55% to him and 45% to the wife.
Non-Contentious Background
The husband is aged 48 and the wife is aged 47. Both parties grew up in Canberra and started dating in high school. After a period of separation they recommenced their relationship and they married in 1978 whilst they were both at university. At that stage the wife was studying nutrition at university in Canberra and the husband was studying medicine at university in Sydney. The husband did a Bachelor of Science in Medicine at in Canberra to enable the wife to finish her degree which she did at the end of 1978 and in 1979 they moved to Sydney so that the husband could complete his degree in Medicine. At the end of 1980 they moved to Canberra so the husband could commence his medical internship. Following her graduation from the university in Dietetics the wife worked and did a Post Graduate Diploma in Nutrition and Dietetics corresponding with the final year of the husband’s degree.
Neither of the parties had any significant assets at the time of their marriage. Not long after the husband commenced employment as a medical intern the parties purchased their first home. In 1986 that property was sold and a new property [‘the H property’] was purchased. The wife still occupies [‘the H property’].
In May 1983 the husband left the hospital system and commenced working as a general practitioner in private practice. He formed an associateship with Dr A although they maintained their own practices. A trust was established in 1983 to assist in the administration of the practice.
In 1985 the husband and Dr A jointly purchased commercial premises [the ‘Y premises’] at which they were then conducting their practices.
In 1982 the parties had a still born child and in 1983 their first surviving child J was born. Following his birth the husband reduced his work commitments to four and a half days each week and looked after J so that the wife could work part time. The parties employed a house keeper to undertake domestic chores from that time onwards throughout their marriage.
In 1985 C was born and the following year the parties sold their first home and purchased a larger home. In 1987 the husband was made President-Elect of a medical organisation and became President in 1988. G was born in January 1988. Commensurate with his additional responsibilities, the husband reduced his practice commitments to four full days per week, an arrangement which he continued after the completion of his term as President. On the days the wife worked he minded the children, took them to and from school and preschool and also assisted with other parenting and domestic tasks.
A was born in 1991. The husband continued to work four days per week to assist in household chores and with the children. They extended the matrimonial home and in 1992 the husband and Dr A purchased larger practice premises [the ‘Z premises’]. They borrowed to purchase the property by paying out the existing mortgage at [‘the Y premises’] to pay for a new fit out at new premises. Once the fit out was complete they moved their practice into the new premises and rented out the old premises at [‘the Z premises’].
In October 1992 the husband became the Chief Executive Director of a medical association, in which he initially worked for two days per week and worked in his practice for three days per week. This meant that he was working full time again and the housekeeper’s hours were increased.
In 1993 the husband received a gift of $5,000 from his Grandmother which was used to fund the purchase of a grand piano. In 1988 the husband was involved in a motor vehicle accident and as a result made a claim for personal injuries. He received approximately $50,000 dollars net after payment of legal costs and incidental expenses in 1994. It was common ground that the sum received was used for the benefit of the family.
By 1998 the husband was working four days per week at the medical association and one day at his practice. In mid 1999 there was a difference of opinion between the husband and the medical association and the husband left and was paid out a sum of about $200,000. After payment of tax he utilised the sum of about $100,000 which remained, to completely pay off the mortgage on the property in which the parties were living and purchased outright a larger vehicle.
In July 1999 the husband was offered a full time salaried position with [‘the I Commission’] which he accepted. For over a year he continued to manage his practice through the Family Trust while working at the [‘the I Commission’] by employing doctors to work at his practice. Towards the end of 2000 Dr A decided to embark on a different career and accordingly the husband and Dr A sold their practices to some of the doctors that they had been employing. The practice premises where then leased to the new owners of the practice and the husband established the wife in new premises to enable her to run her business.
In about June 2001 the husband, together with his siblings, was given $30,000 by his parents. The husband deposited this money in a self managed superannuation fund on the basis of advice that it would not be taxed. He also believed that he could withdraw it at any time without penalty. The payment was apportioned as to $15,000 to each of the husband and wife’s member’s accounts in the Superannuation Fund, although the husband asserted that he had given instructions that it was to be credited only to his account.
The parties separated on the 9th March 2002 and the husband moved into rented accommodation leaving the wife and children in occupation of the former matrimonial home [‘the H property’].
At the time of separation the parties owned real estate comprising:
a) the former matrimonial home [‘the H property’] which was unencumbered;
b) a half share in [‘the Z premises’] encumbered by mortgage to the Commonwealth Bank;
c)a half share of [‘the Y premises’] also encumbered by mortgage to the Commonwealth Bank;
d)furniture, furnishings, shares, motor vehicles, bank accounts and their respective properties superannuation entitlements.
Other than the mortgage over [‘the Y and Z premises’] the only other liability was credit card balances of the husband.
After separation the husband continued to have the benefit of the regular income from [‘the Y and Z premises’] on which he paid some outgoings and other expenses. He was required to purchase new furniture for his own home unit which he did from the bank accounts under his control.
The husband initially paid child support of $2,500 per month and household expenses. The husband reduced the payments to $2,000 per month in August 2004. The wife sought a formal child support assessment from the Child Support Agency and since then the husband has been paying approximately $2,400 per calendar month by way of support for the children.
Since separation the wife has continued to work part time as a dietician in her own practice.
In 2002 the husband and his new partner, M, commenced living together and the husband moved into her town house where she was living with her seventeen year old daughter. Subsequently they purchased a house [‘the O property’]. The purchase price was $815,000 and was borrowed from the Commonwealth Bank and the husband’s mother advanced $98,600 to him to assist in the purchase. In June 2003 M paid $110,000 to reduce her share of the mortgage. The husband has a one half interest in the property and is responsible for his half of the mortgage.
The husband withdrew $30,000 from the [Family] superannuation fund account in July 2003 and used those funds to reduce the mortgage over [‘the O property’], however he was subsequently informed that the withdrawal of $30,000 was not authorised by law and as a result the superannuation fund was liable to be declared a non-complying fund. Consequently, in December 2003 the husband withdrew $30,000 from his overdraft account and paid that sum back into the family superannuation fund. He later transferred $34,442 from the [‘Y and Z premises’] mortgages account into his overdraft account to reduce the overdraft.
After separation the wife wound up the Corporate Trustee and dissolved the family trust.
The wife has subsequently formed a relationship with P. The question of whether he actually lives with the wife in a defacto marriage relationship or simply spends time at her home is an issue for determination in the proceedings.
The relevant law
The applicable law in relation to contact and residence which the parenting orders are concerned with is well settled. The proceedings are conducted under part 7 of the Family Law Act 1975. Section 60B sets out the objects of part 7 and the principles which outline those objects. Section 65E states that in determining the outcome in the best interests of the child are the paramount consideration. In deciding the parenting arrangements that will promote the best interests of the particular child, the court must consider the various matters set out in s.68F(2). Its subsections comprise of a list of matters that must be considered to the extent that each is relevant to the particular case.
Parenting Issues
J and C are both over the age of 18 years. C is having a year overseas and upon return may return to her studies. J lives with his girlfriend and her parents. G turned 17 in January 2005 and is in the course of completing year 12. She lives with the wife and usually has dinner on Monday evenings with the husband and on occasions she stays over on Monday night.
A turned 13 in late 2004 and lives with the wife. He is enrolled at a local high school. Following the separation when the husband moved into rented accommodation, A went to stay with him for the whole weekend once a fortnight and he had contact during school holidays. He began spending Monday evenings at the husband’s home for dinner.
During 2004 that arrangement changed following mediation, so that A spent from Friday afternoon after school until the commencement of school on Monday with the husband and over night on Monday evening until the commencement of school on Tuesday. On the following Monday he has dinner at the husband’s home. He also visits during school holidays.
The Family Report
A Family Report was prepared by Ms H, Clinical Psychologist, on 5 November 2004. Ms H conducted individual personal interviews with the child A, the husband, the husband’s defacto partner M, J (A’s brother), G (A’s sister) and the wife in October 2004. The wife’s boyfriend, P, was interviewed by telephone on 22 October 2004. A was interviewed by telephone on 3 November 2004 and P was further interviewed by telephone on 5 November 2004. Ms H also consulted affidavits filed by the husband, the husband’s defacto partner and the wife, as well as notes provided by the wife by e-mail and fax.
Ms H found that the husband and wife are both satisfactory parents. Although they are critical of each other and expressed concern that the other negatively influences A’s attitude towards them, both parties stated their support for A’s contact with the other parent. Ms H observed that close relationships appear to exist between each of the children interviewed and in connection with each parent.
The counsellor found that the husband is an important figure in the lives of the children and that his relationship with the children has improved since separation from the wife. No concerns were identified with the husband’s parenting of A and the husband was found to genuinely seek increased contact with A because he perceived it to be in his son’s best interests.
The counsellor experienced difficulty in communicating with the wife on the issue of A’s relationship with his father, as she is quite stressed and emotionally reactive. Although the wife has concerns about a shared-care arrangement, these were found to be primarily related to the husband’s behaviour towards her, rather than the children.
Ms H found that the wife’s wishes about the extent of the husband’s involvement with the children have been quite inconsistent. In the past, she has wanted the husband to take the children more frequently but she is now declining his offer to do so. The counsellor found that the reduction in child support she would receive in the event of shared care is a factor influencing her position.
Neither parent was clear on what A wanted. A himself did not hold strong opinions and Ms H experienced some difficulty in ascertaining A’s views on the shared care proposal. Initially, A expressed a preference for living at his mother’s home for logistical reasons although he did say he would like to spend more time with his father. A was slightly more inclined to support a shared-care arrangement after his father discovered that there was a bus running directly from his school to [‘the O property’].
Regarding A’s wish to spend travel home from school with his friends, Ms H found that this could be accommodated if the wife allowed the husband to collect A from her home after work. However, while the wife acknowledged this would be better for A, she was not prepared to do it. Another alternative identified by Ms H was for A’s friends to return to [‘the O property’] with him after school.
The counsellor found there were several good reasons for increasing the amount of contact between A and his father. They are:
a)increased exposure to male company in a more relaxed environment would assist A to come out of his shell and encourage him to form opinions and assert his own needs;
b)A’s behaviour towards his mother (including defiance, hitting her and using food as a weapon against her) suggests he cannot identify and convey his feelings verbally and that he has no other means of expression. Spending more time with his father, where he does not feel he needs to act out in these ways, would bring him relief from internal tension;
c)A engages with the members of [‘the O property’] household more than he does with the members of [‘the H property’] household, which exposes him to different experiences and broadens his mind and social life.
Although G lives at the wife’s home and would miss A, she thought A would be better spending more time at his father’s hame. She was also concerned about A’s reaction to the wife’s boyfriend, which she described as aggressive.
J’s observations were described by the counsellor as insightful and caring, and thought his views were put forward by a sense of responsibility to A’s welfare. He saw a variety of advantages for A at his father’s home, including a more relaxed atmosphere, promotion of A’s confidence and A’s resentment of the wife’s boyfriend, P.
All of the relevant parties, save for the wife, considered shared care an appropriate course of action. The counsellor considered that the wife was not able to recognise that she was acting against A’s best interests in denying him increased contact with his father.
The counsellor further found that that A has the capacity to cope with the period of adjustment necessarily associated with a shared parenting arrangement and that both parents are sufficiently intelligent, caring and resourceful to make a success of such an arrangement. The counsellor concluded that A’s best interests would be served by residing at least 50% of time with his father in a week about arrangement.
The Attitudes and Responsibilities to Parenting
The wife was critical of the report and asserted that the arrangement for her interview had been changed and that she was rushed and upset by seeing the husband’s latest affidavit and recent actions on his part. She did not directly contend that she had been misrepresented by the counsellor but her evidence was given in such a way that it could have no other purpose than to ask me to infer that she failed to present at her best. I am not prepared to make that finding however, for a number of reasons. First, the wife’s evidence, in many respects, was consistent with the manner in which it was presented to the counsellor. Secondly, perhaps more importantly, the wife was well prepared for the interview and she had sent a great deal of material to the counsellor prior to the interview including some family law cases involving joint residence and how joint parenting was not applicable in this case. Following the interview she also said sent further written material to Ms H.
Her attitude to contact in general was internally contradictory. She said that she wanted the husband to have contact on alternate weekends from Friday evening until Sunday evening and believed that to be her application. In fact her application sought that contact should be alternate weekends from Friday evenings to Monday mornings. She did not seem aware of this. She asserted that A should spend less time with his father after this case than he presently does because the current arrangement was a trial only and was not working. She presented no evidence to support that it would be in A’s best interests to spend less time with his father than more, and in fact the concessions that she made in her evidence pointed to it being in A’s best interests to spend more time with his father rather than less.
She made the following concessions:
a)that although she had previously doubted the genuineness of the husband’s application for A to spend more time with him, she had now accepted, somewhat reluctantly, that he was genuine. The wife contended that she had not trusted the husband because on two occasions when he was supposed to have A on Monday evening A had returned to her care after school and she had been required to look after him until the evening. The situation created some problems for A in the sense that he was uncertain as to whose care he was in but more importantly it created logistical problems for the wife. It was the husband’s acknowledgment that she could not tolerate this arrangement and his not having put A in this position in term four which led her to concede that she thought his desire to have A spend more time with him was genuine.
b)She conceded that A enjoys contact with his father very much and she conceded that it was positive that A spend more time with his father as he enjoyed it. Despite these positive indicators she maintained her position that the contact between A and his father should decrease rather than increase. She based her view on the following:
i) that A did not express to her any particular wish to spend more time with his father.
ii) that the “package deal” in her house with family activities made it preferable for A to remain primarily living with her. The elements of “package deal” described by the wife were the ability to see his brother and to live with his sister, his pets, and his mother’s availability.
The wife conceded some significant behavioural problems that she found difficult to manage especially concerning A’s attitude towards her boyfriend, difficulty in getting him to school and withdrawing behaviour generally.
The wife conceded that she had probably raised issues about child support with the counsellor and that she told the counsellor that the reason for the separation was the infidelity of the husband, particularly his lies and breakdown in trust.
She conceded, importantly in my view, that she had told the counsellor that she “can see that A would benefit from more time with his father, it’s a shame for A”, but “if I’m not happy then neither is he.” In my view that encapsulates the position as far as the wife’s attitude towards A’s contact with his father is concerned. The manner in which she approached the counsellor (providing written material before hand seeking to persuade the counsellor to her position), her wish to decrease the contact A is now having with his father notwithstanding her concessions as to the positive nature of it, her unwillingness to accept the views of A’s siblings who have a more objective outlook, leads me to find that the wife is quite unable to distinguish and disassociate her own needs from those of A.
Her inability to put A’s needs first have potentially serious consequences for him if he remains living her household without further contact with his father. As with the findings of the counsellor’s report, the wife sought to diminish the value of the views of G and J. In J’s case she asserted that he was simply parroting his father’s views and that Ms H had probably put these views to J at the interview accepting them rather than they being J’s independent views. As for G’s comments she asserted that G had such little contact with the husband that she would be unable to draw any accurate conclusions about how his household operated and J was in the same position.
She acknowledged that A found it difficult to make decisions exemplified by problems that had arisen on Monday afternoons when he was returned to her care. However, she was not prepared to be reflective about why be so or that it might be possible that A was caught in conflict of his parents and didn’t wish to offend either. Her explanation was simply that he was the youngest child that he was never prepared to open up to anyone and that he was used to having decisions made for him.
Failure to consider whether there might be other issues for A again indicates an inability to reflect on A’s best interests as distinct from her own.
My unfavourable initial view of the wife’s mistrustful and critical attitude towards the husband was tempered by seeing and hearing the husband’s evidence. Both represented the other party as being motivated by financial concerns rather than A’s best interests. Notwithstanding the fact that the child support was a sensitive issue between them, I find that neither party was seeking parenting orders motivated primarily by financial concerns.
The wife’s main complaint about the husband’s parenting is his lack of support in her care of A. I find that the husband did not sufficiently support the wife with her parenting issues concerning A. For example, he was critical of her parenting skills and he conceded that he had sent intemperate emails to her.
There are many examples that the husband’s failure to respond more appropriately to his expressed concerns about A and to communicate with the wife including:
a) failure to seek increased contact although he was concerned that A should spend more time with him;
b) failure to contact the school directly about concerns he had about A’s lateness and progress generally;
c) failure to take time off during holidays to be with A although he knew or believed that A should spend more time with him;
d) having learned that P’s wife had obtained an Apprehended Violence Order and being concerned about his potential involvement in disciplining A, he refused an invitation by the wife to meet with her and her boyfriend P to discuss his concerns. Subsequently his concerns were mollified by talking to the children and finally by reading the family report.The husband made it clear that he was unable to discuss anything with the wife and said he saw no advantage in it. Nor did he consider using his defacto partner to assist with the impasse.
The husband believes the wife is motivated by financial gain in rejecting shared care, but was unable to accept that it might be reasonable for her to think that he was motivated by similar considerations. He displayed no insight into how his behaviour and failure to communicate with her may have created frustrations for her.
The Child’s Wishes
The counsellor indicated that neither parent was clear as to what A wanted despite making attempts to find out. She noted that A presented as a child who had been organised by others and had made decisions for him, and had not developed his own views or decision making faculty. She opined that together with the reluctance to be involved in the conflict between his parents, it was difficult to establish A’s views on the shared care proposals. A initially expressed a preference for living at his mother’s home for logistical reasons but said he would like to spend more time with his father. During the second conversation with him after the husband had discovered there was a bus running directly from school to his home A was “slightly more inclined to spend the week without each of his parents”. Both of his siblings however thought that it was a better arrangement for him.
The relationship between A, his parents and siblings and other household members
A appeared to have a good relationship with each of his parents and with his siblings. He said that of all of the family he was closest to his sisters and would “miss them quite a bit” if he spent more time at his father’s place. He expressed the view that he liked the husband’s partner but was not as keen on the wife’s boyfriend and while he described their relationship as “not bad” he considered it would be better for him if the wife’s boyfriend was not on the scene. A himself acknowledged that he behaved better at his father’s place than at his mother’s place and found his fathers “rules” better than those at his mother’s home.
The likely effect of changes in the circumstances of the child including the likelihood effect of separation from either parent or any other child or person.
The proposal being made by the husband was a not a new arrangement to that extent that A would continue to live 50% of the time in his mother’s household with his sister. Any changes would be tempered by that fact. There is no evidence that A would suffer any significant detriment from spending more time with his father and, it was the view of the counsellor, and his siblings that it would be a positive benefit to him. I find that the benefit in spending more time at his father’s household would outweigh any disadvantage.
The Practical and Difficulty and Expense of Contact
There is no evidence that there would be any difficulty with contact or at significant expense.
The Capacity of Each Parent to Provide for the Childs Needs including Emotional and Intellectual Needs
The counsellor considered that there were no contra indications for increasing the contact with his father but several good reasons for it to occur. She opined that boys respond well from nurturing from the mother in the early years but respond increasingly to their father as a significant role model as they get older. She noted that “increased exposure to male company in a more relaxed environment would assist A to come out of his shell and encourage him to form opinions and assert his own needs, which may have been overlooked in the presence of more vocal older females.”
She noted further that “adolescents typically react by rebelling against parental control, by withdrawing and/or by subduing the drive for autonomy. A is showing signs of all three reactions when at his mother’s house.” She said further “A no doubt feels badly about defying his mother, hitting her and using food as a weapon against her, because he is not an aggressive boy by nature. His behaviour suggests that he cannot identify and convey feelings verbally and has no alternative means of expression. To spend more time with his father, where he does not feel the need to act out in those ways would bring him relief from internal tension. This would benefit his psychological health and I would expect to see an improvement in his confidence and happiness as well as his behaviour towards his mother.”
I find that the wife has born the brunt of caring for A since the separation and that she has not been well supported by the husband. She has clearly been his primary care giver for many years, however, due to the separation and conflict between his parents, and certainly due to his age, A is exhibiting significant behavioural difficulties in his mother’s home and I find from the evidence in particular of the counsellor and of J and G that A wishes to spend more time with his father and is likely to significantly benefit from living half time with his father. This should be seen as a consequence of A’s stage of development and not in any sense as a failure by his mother to meet his needs.
Maturity, Sex and Background Characteristics
No evidence was led to suggest that this was a relevant matter.
Need to Protect the Child from Physical & Psychological Harm Caused or which may be Caused by Being Subjected or Exposed to Abusive Treatment
No evidence was led to suggest that this was a relevant matter.
Whether is Preferable to Make an Order Less Likely to Lead to the Institution of the Proceedings.
No evidence was led to suggest that this was a relevant matter
Any Other Relevant Fact or Circumstance
The matter focused on particularly by the wife, is the complete break down of communication between the parties and in particular the husband’s refusal to engage with her in any way.
The capacity of the parties to communicate and work harmoniously is usually regarded as an important factor in considering whether an order for shared residence should be made. In B v S [2004] FMCAfam 61 at para 29, Federal Magistrate Ryan suggested the factors that the court should particularly examine where the party that seeks an order that a child’s time be equally shared between its parents, including the following:
- the parties’ capacity to communicate upon matters relevant to the child’s welfare;
- physical proximity of the two households: are the homes sufficiently proximate that the child can maintain their friendships in both homes the prior history of caring for the child?
- Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?
- whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, common methods of discipline, attitudes to home work, health, and dental care, diet and sleeping patterns.
- when they disagree on these matters the likelihood that they would be able to reach a reasonable compromise in this matter, do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.
- can they address on the continuing basis the practical considerations that arise when a child lives in two homes? If the child needs necessary school equipment at the other home will the parents readily rectify the problem?
- whether or not the parties respect the other party’s parent.
- the child’s wishes and the factors that influence those wishes.
- where siblings live.
- the child’s age.
Ryan FM noted that the list was n ot exhaustive but noted that they were the usual factors that other courts had considered in similar cases.
Counsel for the mother submitted that in the interests of the child a shared arrangement required communication between the parties or at least an ability to do so. Certainly this is a case in which there is not only no communication between the parties, but very little immediate prospect of that situation improving. Furthermore, there is a considerable degree of distrust between the parties of each others’ motives and again little evidence that in the short term at least that position will change.
An arrangement for shared residency this case will have to be implemented not withstanding the lack of communication between the parties. The counsellor acknowledged in the report (para 43) that given the poor communication between the husband and wife a clearly defined structure is required in order to keep the need for communication between them to a minimum to reduce the potential for conflict between them. This was explored further in cross examination of the counsellor. She acknowledged that conflict between the parents was an important issue but in this case did not consider it to be the defining issue. In her view the overriding consideration was A’s need to spend more time with his father. She did not consider that a week apart arrangement of residence would increase the conflict because it already exists.
Furthermore, she opined that the conflict between his parents was not the primary issue for A whilst acknowledging that the parties’ relationship did not create an ideal situation. Notwithstanding the hostility between the parties and their lack of communication which might in many cases mitigate against a shared arrangement, there are overriding benefits for A in spending more time at his father’s home, and in the circumstances I am satisfied that it is in his best interests to grant the application of the husband and order that he live with the husband and wife and share any school holidays between them.
Given the communication difficulties between the parties I propose to make an order that the residence arrangement be supervised for a period of 12 months pursuant to s.65L(2) of the Family Law Act.
Issues Regarding Property
At the commencement of the proceedings the parties identified the following as being issues:
a)Whether $98,600 advanced by the husband’s mother was a loan as alleged by the husband, or merely a contribution as the wife alleged.
b)Whether the borrowings secured over [‘the Y and Z premises’] to be taken into account were $72,000 or $105,000.
c)Whether the legal costs paid by the parties should be added back to the asset pool.
d)Whether the husband or wife made greater contributions than the other.
e)Whether there should be a substantial adjustment as a result of the matters in s.75 (2) in her favour as alleged by the wife.
f)Whether and to what extent the superannuation should be treated differently from the other assets given that the husband would not be able to receive his benefit until his retirement.
g)Whether P was living in a defacto marriage relationship with the wife.
List of Assets and Liabilities
The following is a list of the assets and liabilities of the parties at the date of the hearing.
Assets
| Item | Ownership | Value | |
| [‘the H property’] | Joint | $685,000.00 | agreed |
| 50% of [‘the Y premises’] | Husband | $200,000.00 | agreed |
| 50% of [‘the Z premises’] | Husband | $237,500.00 | agreed |
| 50% of [‘the O property’] | Husband | $480,000.00 | agreed |
| Wife’s savings at separation | Wife | $9,034.00 | agreed |
| 555 IAG shares | Husband | $3,037.80 | agreed |
| 500 John Fairfax shares | Joint | $2,210.00 | agreed |
| 400 Mayne Group shares | Joint | $1,1728.00 | agreed |
| 120 Resmed Inc. Shares | Joint | $774.00 | agreed |
| 120 Westfield Group Shares | Joint | $1,905.00 | agreed |
| 1500 Telstra Shares | Joint | $7,335.00 | agreed |
| 80 ANZ Shares | Joint | $1,162.00 | agreed |
| 628 Coles Myer Shares | Wife | $6,217.20 | agreed |
| Family Trust assets | Wife | $1,500.00 | agreed |
| Wife’s 1999 Honda | Husband | $27,100.00 | agreed |
| Husband’s 1994 BMW motorbike | Husband | $5,500.00 | agreed |
| Household contents | Wife | $25,000 | agreed |
| Husband’s savings at separation | Husband | $6,964.00 | agreed |
| Wife’s sale of Millers Shares | Wife | $524.00 | agreed |
| Wife’s sale of Rio Shares | Wife | $2,268.00 | agreed |
| Superannuation | agreed | ||
| Husband’s superannuation ([Family] super fund) | Husband | $72,436.00 | agreed |
| Husband’s Colonial super | Husband | $128,449.00 | agreed |
| Wife’s superannuation entitlements ([Family] super fund) | Wife | $60,683.00 | agreed |
| Wife’s Colonial First State Choice | Wife | $13,397.00 | agreed |
| Husband’s Colonial First State Choice | Husband | $52,884 | agreed |
Liabilities
| Item | Ownership | Value | |
| Mortgage [‘the O property’] | Husband | $310,000.00 | agreed |
| Borrowings from mother | Husband | $98,600.00 | disputed |
| Mortgage balance on [‘Y and Z premises’] | Husband | $93,000 – $105,000 | disputed |
Do the wife and P live in a defacto relationship?
The husband asserted that the wife was living in a defacto relationship with P. P swore an affidavit which I admitted. He and his wife are involved in proceedings in the Family Court and they have four children aged between 15 and 10 years. The two older children live with P and his wife on a week about basis. The two younger children live with their mother and see their father on alternate weekends. He asserted that during the week his children did not live with him he spent mostly at the wife’s home. His two younger children come to dinner in the other week often at the wife’s home. He asserted that he and the wife had no plans to enter into a defacto marriage relationship in the foreseeable future, that they keep their finance separate, share costs and each pay for their own children expenses.
The wife asserted that the relationship with P was strong and going well, but they had left the question of future commitment until these proceedings and those between P and his wife are completed.
Neither the wife nor P were shaken in their evidence. The husband was unable to produce any evidence to the contrary and the intention of both P and the wife to complete their respective proceedings in the Family Court of Australia, before contemplating their future was entirely believable and I find that the wife and P are not at this stage living in a defacto marriage relationship, nor have any fixed plans to do so in the foreseeable future. As P is seeking week about residence with all of his children there is no evidence that it is likely they will live together in the foreseeable future.
Was the $98,600 from the husband’s mother for [‘the O property’] a loan or to be regarded as a contribution?
The wife conceded that the husband’s mother had advanced $98,600 to enable him to purchase [‘the O property’] but denied that it was a loan rather than a contribution made on his behalf.
The husband annexed documents signed by his mother and dated the 16 April 2003. The letter refers to the sum of $98,600 being paid to the husband as “an interest free loan”, however it goes on to say “the time of re-payment being indefinite at this time”. The letter nominates a bank into which the payments could be made but provides that in the event of the death of either parent the money advance “should be taken into account in distribution of the estate”. No other evidence was called by the husband to support the contention that this was a loan that he may be required to repay in the foreseeable future, or at all.
The advance does not have the characteristics of a loan. In particular there is:-
·No interest payable
·No re-payments required
·No time for capital re-payment
The husband has not made any payment of capital nor is there any evidence that he intended to do so in the foreseeable future. Furthermore, the reference to taking it into account as a distribution from the estate of either parent on their death suggests their character of an early distribution of his share of the parents estate and I find that that is how it was intended by the husband and his mother and therefore should be treated as a contribution on behalf of the husband and not as a loan.
Should [‘the Y and Z premises’] borrowings be brought into account at $72,000 or $105,000?
The wife initially asserted the mortgage on [‘the Y and Z premises’] was $72,000 where as the husband asserted it was $93,000 (however he claimed a further sum as part of his overdraft).
Ultimately the wife accepted $93,000 as the borrowings. At the completion of the hearing however the husband’s position was that he did not seek to have the overdraft taken into account but sought to bring into account borrowings for $105,000 on [‘the Y and Z premises’].
The dispute has its genesis in the sum of $30,000 given to the husband by his father and put into the family superannuation fund. The husband subsequently sold shares in the fund and withdrew $30,000 which he used to reduce the mortgage over [‘the O property’]. Upon realizing that the fund would become non-complying he withdrew $30,000 from the overdraft and paid it into the superannuation fund. Later he was required to reduce the overdraft account and he transferred $34,442 from [‘the Z premises’] mortgage account into his overdraft account, thereby increasing the amount of the mortgage borrowings on [‘the Y and Z premises’].
Thus the conclusion of these steps was that:-
·The husband received $30,000 by way of gift from his father
·He reduced the mortgage on [‘the O property’] by $30,000
·He increased the borrowings in [‘the Y and Z premises’] mortgage essentially by the same amount
Thus I intend to take into account:-
a)The liability of $105,000 (which reflects the reduction in the mortgage over [‘the O property’] and subsequently having to replace the money in the superannuation fund);
b)The husband’s contribution of $30,000 to the superannuation fund.
Should legal costs be added back?
The wife paid her legal bill from money her parents gave her and from earnings. She had paid a total of $30,000 of which $5,000 came from her parents and the balance of $25,000 from earnings.
The husband has paid approximately $35,000 in legal costs funded by the overdraft which has not been taken into account and from which he will be left to pay.
The wife had some contribution from her family but the majority came from her earnings. The husband will be required to pay off the overdraft from his earnings. Neither party has used assets acquired during the marriage to meet legal fees and both will ultimately be meeting the majority of their fees from their earnings for these reasons I do not consider it is appropriate that legal fees should be added back into the asset pool.
Accordingly I find the assets and liabilities to be as follows:
[‘the H property’] 686,000 Wife [‘the Y premises’] 200,000 [‘the Z premises’] 235,500 Less mortgage 105,000 NET 330,000 Husband [‘the O property’] 48,000 Less mortgage 310,000 NET 170,000 Husband Wife’s savings at separation 9,034 Wife Wife’s shares 24,639 Wife Sale of trust assets 1,500 Wife Honda car 27,100 Wife Motor bike 5,500 Husband Household contents 25,000 Wife Husband’s savings at separation 6,964 Husband Wife’s sale of shares 2,792 Wife Total 1,288,029 [Family] Super Fund 72,436 PSS Fund 128,449 Colonial 52,884 253,769 Husband [Family] Super Fund 60,683 Colonial 13,397 74,080 Wife Total 1,615,878 The Law
Distribution of property following marriage breakdown is governed by section 79 of the Family Law Act. Section 79(1) empowers the Court to “make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines.” Section 79(2) states that the court shall not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
The matters that the court shall take into account in considering what order, if any, should be made are contained in section 79(4) of the Act. These are, in summary, direct financial contributions, indirect financial contributions and homemaking contributions. Factors contained in section 75(2) of the Act, such as the age and physical health of the parties, may also be taken into account by the court, as may other factors identified in sections 79(4)(d), (f) and (g).
The court’s approach to determining property disputes is well settled. In Hickey v Hickey (2003) ¶92-626, the Full Court of the Family Court described the approach in the following terms:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of section 79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss. 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of section 79(4)(e), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step 2. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case (at 78,386).
I have already identified and valued the net assets of the parties at the date of hearing. I now turn to consideration of the parties’ contributions, section 75(2) factors and what order would be just and equitable in all the circumstances.
Contributions
I do not accept the contention from the wife that her contributions were greater than those of the husband’s. During the marriage both parties contributed by their earnings and contributions as homemaker and parent. Whilst the husband’s financial contributions from his earnings were greater than those of the wife, and her contribution as homemaker and parent were greater than his, nevertheless the wife contributed financially and the husband also contributed significantly as homemaker and parent during the periods he was not working full time.
I take into account the fact that the husband contributed $5,000 from his grandmother in 1993 and in 1994 received a sum of $51,760.70 plus costs as damages arising out of a motor vehicle accident. These differ in character from the payout of about $150,000 (net $98,345 after payment of tax) following settlement of a dispute involving his then employer. I regard the latter as being a consequence of his employment.
The payment from the husband’s grandmother is of small compass and whilst the payment he received in 1994 was more significant, having regard to the length to the marriage and the contributions that the parties made themselves over the course of the marriage, whilst I intend to give it some weight it is not of significant weight.
Thus in my view, subject to the matters I have raised, the parties otherwise made equal contributions.
The position post-separation however is somewhat different. As far as financial contributions are concerned the husband has made a contribution of $98,600 to [‘the O property’] being the money advanced by his parents. Furthermore he has made a contribution of $30,000 from his father to the [Family] Superannuation Fund. He also topped up the [‘Y and Z premises’] mortgages by approximately $100 per week (after receipt of rent and the payment business outgoings).
During this period the wife has had the benefit of dividends from some of the shares that she has had in her name.
In the same post-separation period the wife has had the major responsibility for the care of the children, A and G, and for a significant amount of that time A was having much less contact with his father than the position at the time of the hearing.
Balancing these contributions I am satisfied that an adjustment of 7% in favour of the husband (which encompasses a small weighting in his favour pre-separation) is the appropriate adjustment in all circumstances having regard to the contribution of the parties.
I have had regard to the other contributions the husband contends should be taken into account in his case summary document, however I am satisfied that only those that I have specified require any adjustment. Whilst the wife has had the benefit of occupation of the former matrimonial home her income has always been, and continues to be significantly less than that of the husband and she has had the major responsibility for the care of the children. The husband has provided financial assistance for the children in accordance with his legal obligations but the financial contribution made by the wife to their support equally should not be ignored.
Whilst the husband has had to acquire another property and has carried out some renovations to that property, he has benefited from the availability of [‘the Y and Z premises’] as security for borrowings.
Nor do I agree with the husband’s contentions that his interest in [‘the O property’] should be assessed separately or that his superannuation benefits in the PSS Fund accumulated since separation should be treated separately. To do so would be to ignore the earning capacity of each of the parties at the date of separation, a consequence of their marriage, the way that they conducted their lives prior to separation and the wife’s post-separation contributions to the welfare of the family.
What adjustments should be made pursuant to s75(2) of the Act
The husband contended that the facts in this case warranted no apportionment in favour of the wife pursuant to section 75(2). The wife contended that she should receive 5% more than the husband as a result of contributions but that the worst outcome for her in relation to contribution should be a position of equality. She contended that there should be an adjustment pursuant to section 75(2) of 10% in her favour. I am required to consider the matters in s75(2) of the Act, insofar as they are relevant.
a)The husband is aged 48 and is employed by [‘the I Commission’]. He is a qualified medical practitioner and has the capacity for full time remunerative employment. His taxable income for the year 30 June 2003 was $192,117. This does not account for the child support he paid nor for the capital repayments in relation to [‘the Y and Z premises’] made on behalf of both parties. His salary income for 30 June 2004 was $177,249, approximately $8,000 more than the previous year.
b)The wife is aged 47 and is self employed as a dietician. She has the capacity to be engaged in full time remunerative employment she is presently working four and a half days a week and rejected the husband’s contention that she could work five days.
In view of the ages of the children living in her home I find that the wife has the capacity to work full time but increasing her work commitments by an extra half day will not significantly increase her income. The wife conceded that with regard to the draft profit and loss statement for the year ended 30 June 2004 if one were to add the personal expenses of $46,606, the $10,000 contribution to superannuation and tax paid of $5,358, the wife earned the equivalent salary package of $61,000 plus other benefits derived from running her business from home. Notwithstanding the husband’s presentation of the income earning capacity of each of the parties, there is a significant disparity between their income earning capacity that will continue, even after tax and child support is considered.
The husband has re-partnered and whilst he and his partner keep their affairs separate their cohabitation has enabled him to share some household expenses and the acquisition of [‘the O property’]. Nevertheless, these factors alone do not put him in a significantly more advantageous position than the wife.
There are two children under the age of 18, G who turned 18 in January 2005 and A who is 13. G is in her last year at school and is living with the wife. Pursuant to the orders in relation to the parenting issues A will spend about 50% of his time with the husband and the balance of the time living with the wife. Even without these orders however as A gets older he would in any event be likely to spend more time at the husband’s home. I do not regard this factor as entitling the wife to any adjustment, but I take into account the requirements of each party for the support and care for A in the consideration of the difference in the income earning capacity of the parties. This is not withstanding that the husband will still be required to pay some child support to the wife.
By reasoning largely of the difference in income earning capacity which will continue into the future and will affect the future superannuation of the parties, there should in my view be an adjustment of 7% to the wife in respect of these matters. That would thus require an equal division of the assets having regard to the findings on contribution.
Should superannuation be treated any differently from the other assets and if so to what extent?
The husband’s position was that superannuation should be the subject of an equal division of the parties notwithstanding that the court might come to the conclusion that the other assets might be divided more favourably to the wife. Having made the findings I have in relation to contributions there is no need to consider this aspect any further, other than in deciding what precise orders should be made.
Conclusion
Having regard to what I have found to be the asset pool the non-supernnuation assets the parties have available to them at the present time, and by agreement would receive as a result of orders are as follows:-
Wife’s Assets
·[‘the H property’] $685,000
·Savings at separation $9,304
·Shares $24,639
·Proceeds of sale of trust assets $1,500
·Honda $27,100
·Household contents $25,000
·Proceed of sale of shares $2,792
Total $775,065
Husband’s Assets
·[‘the Y and Z premises’] net equity $330,500
·New interest in [‘the O property’] $170,000
·Motorbike $5,500
·Savings at separation $6,964
Total is $512,964
Total of husband’s and wife’s assets $1,288,029
50% is $644,014, and the adjustment required in the husband’s favour is $131,051.
Superannuation
Husband:
·[Family] Superannuation Fund $72,436
·PSS Fund $128,449
·Colonial $52,884
Total $253,769
Wife:
·[Family] Superannuation Fund $60,683
·Colonial $13,397
Total $74,080
Total superannuation is $327,849
50% is $163,924 and the adjustment required in favour of the wife is $89,845
What orders need to be made to affect a just and equitable outcome?
The husband contended that any requirement to adjust assets should be dealt with in a way that superannuation was adjusted discretely from the adjustment of other assets. Combining the superannuation and the other assets the total value of the asset pool is $1,615,878. Of that sum each of the parties are entitled to $807,939. The wife has assets in her possession totalling $775,065 plus superannuation of $74,080 being a total of $849,145. The husband has assets of $512,964 and superannuation of $253,769 being a total of $766,733. If the assets were adjusted without adjusting the superannuation separately, the wife would be required to pay to the husband $41,206. This compares with the position if the non-superannuation assets were adjusted independently of the superannuation, with a payment which would be required of $131,050, a difference of $89,845.
I am satisfied in all the circumstances that the just and equitable order in the circumstances would be to leave the superannuation as it is and to require the wife to pay to the husband the sum of $41,206 in addition to retaining the superannuation she currently has and the assets in her possession. I come to that conclusion for the following reasons:-
a)That although the husband will have more superannuation than the wife and less existing assets, the difference in the result achieved by such an order and what the husband was seeking is close to $90,000 and in my view is not something which will prejudice the husband in any demonstrated way;
b)The husband’s financial position is fairly secure and whilst the extra cash which might have been payable by the wife would be of value to him there is no evidence that it is crucial to his finances;
c)The husband’s earning capacity is significantly greater than the wife’s and if she wants to retain the former matrimonial home then it would be more difficult for her to repay higher borrowings to meet the greater obligation to the husband.
Orders
Accordingly the orders I propose to make, subject to submissions by counsel are as follows:
1.That the child G live with the mother and the mother be responsible for her day to day care and development.
2.That the child A live with the father at the following times –
a.during school terms from Friday afternoon after school until the commencement of school the following Friday and in each second week thereafter.
b.for one half of each of the school term holidays (excluding Christmas) commencing from the conclusion of school except during term holidays and being:
i) for the first half of the set school holidays if he has spent the last week of school term in the mothers household, and
ii) for the second week of the holidays if he has spent the last school week in the father’s household and
iii) the second half of the school holidays is deemed to commence at 5pm on the middle Saturday of the school holidays.c.during the Christmas school holidays for the first half of the Christmas school holidays in even numbered school years (commencing in 2004/2005) from 4pm on the day fourth term ends and in odd numbered years (commencing 2005/2006) in the second half of the said school holidays until the commencement of school on the first day term begins.
3.That A reside with the wife at all other times.
4.On A’s birthday each year the parent with whom he is then living should make him available for a period of at least 2 hours at a time to be agreed but failing such agreement from 5pm to 7pm.
5.On Christmas Day each year the parent with whom he is then living should make him available for contact with the other parent for a period of at least 4 hours at a time to be agreed between the parents but failing such agreement from 2pm to 6pm.
6.The husband and wife retain joint responsibility for the long term welfare and development of the children and each of the parties be responsible for the day to day care, welfare and development of the child A when he resides with them.
7.That the residence arrangements be supervised by a counsellor nominated by the director of the court counselling at the Canberra Registry of the Family Court of Australia pursuant to s.65L(2) of the Family Law Act 1975 for a period of 12 months following the date of making these orders.
8.The wife pay to the husband the sum of $41,206 within 42 days of the date of these orders.
9.Contemporaneously with the payment in order 9 hereof:-
a)the husband do all such things to transfer to the wife at the expense of the wife all of the husband’s interest in the property known as [‘the H property’] in the Australian Capital Territory.
b)the wife do all such things necessary to transfer to the husband at the expense of the husband all of the wife’s interest in the properties known as [‘the Y and Z premises’] and the husband’s interest in [‘the O property’] in the Australian Capital Territory;
c)The husband do all things necessary to cause the Commonwealth Bank to release the wife from all liability with respect to the loans secured over the properties but if such release can not be obtained by the time of the payment then the husband do all things necessary to cause the mortgages to be discharged at the expense of the husband.
10.That the wife forthwith indemnify the husband against all rates and land taxes (if any) and other expenses with respect to [‘the H property’] and the husband indemnify the wife from all rates and land taxes (if any) and other expenses with respect to [‘the Y and Z premises’] and [‘the O property’].
11.That the husband transfer to the wife the whole of his right title and interest in all furniture, fittings, contents, goods and chattels located in or around [‘the H property’] save for the side board which the husband will collect from the wife within 14 days of the date of these orders and the husband transfer to the wife the whole of his right title and interest in all goods and chattels located at the wife’s business premises.
12.That the husband transfer to the wife the whole of his right title and interest in the Honda Odyssey motor vehicle at the (if any) expense of the wife.
13.That the wife transfer to the husband the whole of her right title and interest in the BMW motor cycle in his possession at the expense (if any) of the husband.
14.That the husband transfer to the wife his right title and interest in the shares in the joint names of the parties at the expense (if any) of the wife.
15.That the parties in their capacity as trustees of the [Family] Superannuation Fund do all acts and things and sign all necessary documents to cause the wife’s member balance in that fund to be paid to a superannuation fund of her choice and there after the wife resign as a member and trustee of the fund and the husband pay indemnify and keep the wife indemnified in relation to all of the new liability of that fund.
16.That if either party refuses, fails or neglects to execute any document necessary to give effect to these orders then the Deputy Registry of the Family Court of Australia at Canberra be and is hereby appointed pursuant to section 106 of the Family Law Act to execute such document in the name of such party.
17.That the parties do all acts and things and sign all necessary documents to cause Colonial Total Care policy currently in the name of the wife as trustee for the [Family] Superannuation Fund with life insured being the husband to be transferred to the husband and to cause Colonial Total Care plan policy currently in the name of the wife as trustee for the [Family] Superannuation Fund with the life insured being the wife to be transferred to the wife.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Chief Justice Bryant.
Associate: Kristen Murray
Date: 25 February 2005
SCHEDULE 1 – ORDERS SOUGHT
Orders sought by applicant wife:
1.That the property of the parties (including superannuation) be divided as to 65% to the wife and 35% to the husband.
2.That the children G and A live with the mother.
3.That the child A have contact with the father as follows:
a) Every second weekend from 5.30 pm on Friday until commencement of school on Monday.
b) Each Monday evening for dinner from 6 pm until 9.30 pm.
c) For the first half of all school holiday periods commencing in years ending in odd number and the second half of all school holiday periods commencing in even number.
d) For the purposes of the proceeding order:
i)the first half of school holidays is deemed to commence at the end of classes on the last day of school;
ii)the second half of December/January school holidays is deemed to commence at 5pm on the Friday in January that falls approximately three weeks after the last day of the four school term of the previous year; and
iii)the second half of all other school holidays is deemed to commence at 5pm on the middle Saturday of the school holidays.
4.That notwithstanding these orders the child shall live with his mother from 9am until 5pm each Mother’s Day and with his father from 9am until 5pm each Father’s Day.
5.That notwithstanding these orders, if the mother’s birthday or the father’s birthday falls on a day when the children would otherwise be living the other parent, the following orders apply.
6.a) That if the mother’s or father’s birthday falls on a weekday, the children have contact with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4pm until 7pm.
b) That if the mother’s birthday or father’s birthday falls on a weekend the children will have contact with the parent having the birthday from 9am until 5pm on the birthday.
7.That on the children’s birthday each year the parent with whom the children are living will make them available for contact with the other parent for a period of at least two hours at a time to be agreed between the parent, but failing such agreement from 5pm until 7pm.
8.That on Christmas Day each year the parent with whom the children are living will make him available for contact with the other parent for a period of at least four hours at a time to be agreed between the parents, but failing such agreement from 2pm until 6pm.
9.In the event that the father is unable to exercise contact due to work commitments the following provision apply:
a) In relation to weekend and Monday evening contact, the father shall provide the mother with two weeks notice so that the mother can make alternate arrangements. If notice is given less than two weeks then the father shall make alternate arrangements for the care of the children.
b) In relation to school holiday contact the father shall confirm with the mother at least four weeks in advance of any school holiday period as to whether or not he will be exercising his school holiday contact. If he fails to notify the mother within that time frame then the father is deemed not to be exercising his contact for that school holidays.
10.That the father be restrained from returning the children to the mother’s residence prior to the expiration of contact without first confirming with the mother that it is appropriate to do so.
11.That in relation to handover the father shall collect and return the children to the mother’s home or the school, depending on the start and conclusion of his contact periods as defined above.
Orders sought by respondent husband:
1.That the husband and wife retain joint responsibility for the long term care, welfare and development of the child of the marriage, A, and the parties each be responsible for the day to day care of the said child when the child resides with them.
2.That the said child reside with his father, the respondent:
a) Except during the Christmas school holidays in each year from Friday afternoon after school until the commencement of school the following Friday and in each second week thereafter, commencing on the Friday following the making of these orders;
b) During the Christmas school holidays in each year, for the first half of the said school holidays in even numbered years (commencing in 2004/05) from after school on the day the fourth term ends and in odd numbered years for the second half of the said school holidays (commencing 2005/06) until the commencement of school on the day first term begins;
c) and that A reside with the wife in these proceedings at all other times.
3.That the wife pay to the husband the sum of $172,482 within 30 days from the date of the making of these orders.
4.That contemporaneously with the payment in paragraph 3:
a) The husband do all such things necessary to transfer to the wife at the expense of the wife all of the husband’s interest in the property known as [‘the H property’] in the Australian Capital Territory.
b) The wife do all such things necessary to transfer to the husband at the expense of the husband all of the wife’s interest in the properties known as [‘the Y and Z premises’] and the husband’s interest in [‘the O property’] in the Australian Capital Territory.
c) The husband do all things necessary to cause the Commonwealth Bank to release the wife from all liability with respect to the loans secured over the properties but if such cannot be obtained by the time of the payment then the husband do all things necessary to cause the mortgages to be discharged at the expense of the husband.
5.The wife forthwith indemnify the husband and forever hold him harmless against all rates and land taxes (if any) with respect to [‘the H property’] and the husband indemnify the wife and forever hold her harmless against all rates and land taxes (if any) with respect to [‘the Y and Z premises’] and [‘the O property’].
6.That the husband transfer to the wife the whole of his right title and interest in all furniture, fittings, contents, goods and chattels located in or around [‘the H property’] property save for the sideboard which the husband shall collect from the wife within 14 days of the date of these orders and the husband transfer to the wife the whole his right, title and interest in all goods and chattels located at the wife’s business premises.
7.The husband transfer to the wife the whole of his right title and interest in the Honda Odyssey motor vehicle.
8.That the wife transfer to the husband the whole of the right title and interest in the BMW motorcycle.
9.That in accordance with section 90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of the husband from his interest in the Colonial Super Retirement Fund the trustee shall pay to the wife the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $52,884 and that there be a corresponding reduction in the entitlement the husband would have had but for these orders.
10.That the operative time for order 9 is four business days after service on the Trustee.
11.That he parties sign all documents and do all acts and things required of them in their capacities as trustees of the [Family] Superannuation Fund to “rollout” to a fund nominated by the husband the sum of $32,335 and the husband shall thereafter forthwith resign as a member and trustee of the fund and the wife shall indemnify the husband in relation to all and any liability of that fund.
12.That the husband transfer to the wife the whole of his right title and interest in the shares in the joint names of the parties.
13.That if either party refused, fails or neglects to execute any document necessary to give effect to these orders then the Deputy Registrar of the Family Court, Canberra be and is hereby appointed pursuant to section 106 of the Act to execute such document on the name of such party.
14.Unless otherwise specified in these orders and save for the purpose of enforcing any money due under these or any subsequent orders, each party retain the items of property in their respective possessions as at this date.
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Abuse of Process
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Appeal
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Costs
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Res Judicata
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Stay of Proceedings
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