CARLSON & CARLSON
[2018] FamCA 466
•7 June 2018
FAMILY COURT OF AUSTRALIA
| CARLSON & CARLSON | [2018] FamCA 466 |
| FAMILY LAW – CHILDREN – Parental responsibility – Where equal shared parental responsibility is not practical as the parties cannot communicate and agreement on decisions for the best interests of the children is unlikely – Concluded the residential parent should have long term sole parental responsibility – Ordered the mother have sole parental responsibility. FAMILY LAW – CHILDREN – With whom a child lives – Where real weight is given to both children’s strong preference for living with the mother – Where both parties have the capacity to meet the children’s needs – Where both parents have created pressure and conflict for the children – Ordered the children live with the mother and spend time with the father each alternate weekend with additional time during school holidays. FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where both parties wish to have their property interests separated and adjusted – Where at the commencement of the relationship the father was in a financially stronger position – Where the parties’ contributed equally during the marriage – Where the father did not make full disclosure of his financial position in his trial documents – Ordered the father transfer the mother all his rights in the former matrimonial home – Ordered the parties to cause the wife to be transferred all rights in the motor vehicle in the wife’s possession – Ordered the wife to transfer to the father all her rights in I Group Pty Ltd. FAMILY LAW – CHILD SUPPORT – Application for departure – Where the father is in arrears of Child Support – Where the mother and the father each makes a departure application where the mother is seeking capitalisation of future payments where the father is seeking discharge of arrears – Ordered the applications of both are dismissed. |
| Child Support (Assessment) Act 1989 (Cth) s 117 Family Law Act 1975 (Cth), ss 60CC, 64B, 75, 79 |
| Bevan & Bevan [2013] FamCAFC 116 Gyselman & Gyselman (1991) 15 Fam LR 219 Stanford & Stanford (2012) 247 CLR 108 |
| APPLICANT: | Mr Carlson |
| RESPONDENT: | Ms Carlson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 1538 | of | 2015 |
| DATE DELIVERED: | 7 June 2018 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 11 - 14 September 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gould |
| SOLICITOR FOR THE APPLICANT: | Mullane & Lindsay |
| COUNSEL FOR THE RESPONDENT: | Mr Duane |
| SOLICITOR FOR THE RESPONDENT: | Rankin Ellison Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting
That all prior parenting orders in relation to B born … 2002 and C born … 2004 (“the children”) are discharged.
That the mother have sole parental responsibility for making decisions about major long term issues in relation to the children.
That the mother shall advise the father in writing as soon as practicable of decisions she has taken about major long term issues.
That the mother and the father shall each have parental responsibility for making decisions concerning the day to day care, welfare and development of the children when the children are living or staying with a parent pursuant to these orders.
That the children live with the mother.
That the children spend time with the father as follows:
(a) During school terms:
(i)Each alternate weekend from after school Friday until before school Monday.
(b)School holidays – During the school holiday periods at the end of Terms One and Three:
(i)The sequence of alternate weekends when the children spend time with the father pursuant to Order 6(a) is to continue;
(ii)If an alternate weekend falls on a weekend other than the last weekend of the school holidays then the time the children spend with the father will commence at 5.00 pm Friday and conclude 5.00 pm the following Tuesday; and
(iii)If an alternate weekend falls on the last weekend of the school holidays then the time the children spend with the father will commence at 5.00 pm on the prior Wednesday and conclude at 5.00 pm Sunday.
(c)School holidays – During the school holiday period at the end of Term Two:
(i)The sequence of alternate weekends is suspended for the whole of the holiday period with the pattern to recommence and continue in Term Three; and the children shall spend time with the father:
A.In 2018 and even years thereafter from 5.00 pm on the last Friday of Term Two to 9.00 am the second Monday thereafter (a period of ten nights); and
B.In 2019 and alternate years thereafter for ten nights concluding at 5.00 pm on the last Sunday before the commencement of Term Three commencing at 5.00 pm on the Thursday ten nights prior.
(d)During the long school holiday period at the end of Term Four each year:
(i)The sequence of alternate weekends when the children spend time with the father is suspended for the whole of the period.
(ii)The children shall spend time with the father:
A.For Christmas in 2019 and each alternate year thereafter from midday 26 December to midday 29 December;
B.In 2018 and each alternate year thereafter from midday 23 December to midday 26 December;
C.For a period of fourteen nights concluding at 5.00 pm on the last Sunday before Term One of the new school year commences and commencing at 5.00 pm on the Sunday fourteen nights prior (for example 5.00 pm Sunday 14 January 2019 to 5.00 pm Sunday 28 January 2019); and
D.In January 2019 and every second year thereafter from 5.00 pm on the first Sunday following after New Year’s Day until the third Sunday thereafter (a period of fourteen nights) (for example 5.00 pm Sunday 6 January 2019 to 5.00 pm Sunday 20 January 2019).
E.If the children are not otherwise spending time with the father on the weekend of Father’s Day then the children spend time with the father from 5.00 pm Saturday until return to school Monday morning on the weekend of Father’s Day.
If the time the children spend with the father pursuant to Order 6 falls on the weekend of Mother’s Day then the time the children spend with the father is to conclude (and the children are to be returned to the mother) at 5.00 pm Saturday on the weekend of Mother’s Day.
Communication
Each parent shall permit the children or either of them to communicate with the other parent at any reasonable time (whether it is the child or the other parent who initiates the contact).
Changeovers
Changeovers which do not take place at the school shall take place at the corner of T Street and H Street, Suburb G with the father sending a text to the mother confirming the arrival of himself or a family member and thereafter the children walking down to meet him (if they are not already at the meeting point at the commencement of a period of time) or walking home at the conclusion of the period.
Restraints
Mr Carlson is restrained by injunction from approaching within 50 metres of the property at H Street, Suburb G.
Each party must ensure that the other party is informed as soon as practical of any serious medical matter involving the children when the children are in their care.
The mother must keep the father informed of the children’s health professionals and must notify the father of any medical procedures and treatments affecting the children; and the father may (at his cost if any) obtain information in relation to the children’s health professionals.
The mother must keep the father informed of the children’s schools; and the father (at his cost) may obtain information (including notices, newsletters, reports, photographs and the like) in relation to the children from the children’s schools.
The parties must not denigrate the other party or members of the other party’s family or friends:
(a) To, or within the hearing of, the children; or
(b)On social media, websites and the like to which the children could have access.
The parties must not discuss these Court proceedings with, or within the hearing of, the children.
Explanation of Orders
That the mother will bring the children to see the Senior Family Consultant (and the Independent Children’s Lawyer if she wishes to be present) in order for the Senior Family Consultant/Independent Children’s Lawyer to explain the orders to the children and to answer any questions which either of them may have.
Property
H Street, Suburb G
Within 35 days the father must:
(a)Do all acts and execute all documents provided by the wife at her expense necessary to transfer to the wife all of his right, title and interest in the property situate at and known as H Street, Suburb G, being the whole of the land contained in Certificate of Title folio identifier …;
(b)Do all acts necessary to cause his parents Mr R Carlson and Mr Q Carlson to withdraw Caveat No. …8B from the title to the property at H Street, Suburb G.
Father’s personal liabilities
Within 35 days the father must:
(a)Do all acts and execute all documents necessary to cause the wife to be released from any liability she may have to the father’s parents Mr R Carlson an Mr Q Carlson or either of them;
(b)Do all acts and execute all documents necessary to cause the wife to be released from all guarantees given by her to the Australia and New Zealand Banking Group Limited in relation to personal liabilities of the father, including but not limited to ANZ Bank account number …12 in the name of Mr Carlson;
(c)Do all acts and execute all documents necessary to cause the wife to be released from any other personal liability of the father.
I Group Pty Ltd
Within 35 days, the parties must do all acts and execute all documents necessary to cause the company I Group Pty Ltd (ACN …) (“I Group”) to transfer to the wife, all its right, title and interest in the 4WD registration number … currently in the wife’s possession.
Immediately following the parties doing all acts referred to in Order 19, the wife must do all acts and things and sign all documents provided by the father at his expenses, as may be required to:
(a)Transfer to the father or his nominee all her right, title and interest in her entire shareholding in I Group;
(b)Cause to be assigned or transferred to the father absolutely all rights, entitlements, claims, actions or demands which the wife may have against the company howsoever arising;
(c)Resign as a director of I Group;
(d)Resign as a beneficiary of the Carlson Family Trust (“the Trust”); and
(e)Cause to be assigned or transferred to the father absolutely all rights, entitlements, claims, actions or demands which the wife may have against the Trust howsoever arising.
At the same time that the wife does all acts referred to in Order 20, the father must:
(a)Do all acts and execute all documents necessary to cause I Group to release the wife from any claim it may have against her;
(b)Do all acts and execute all documents (including if necessary, personally paying all amounts) necessary to cause Australia and New Zealand Banking Group Limited to discharge the mortgages secured over the property at H Street, Suburb G, registered dealing numbers … and …;
(c)Do all acts and execute all documents necessary to cause the wife to be released from all guarantees given by her to the Australia and New Zealand Banking Group Limited in relation to I Group and/or the Trust including but not limited to guarantees given by her in relation to ANZ Bank Account numbers …19 and …82 in the name of I Group Pty Ltd;
(d)Do all acts necessary to cause the wife to be released from any other liability of I Group and/or the Trust whether such liability is past, present or future including any liability the Commissioner of Taxation arising from such shareholding or distributions from the Trust and any liability of the wife to the Australian Securities & Investments Commission and any other Government bodies;
(e)Indemnify the wife and forever thereafter keep her indemnified in respect of any financial liability of the wife arising out of or in relation to I Group and/or the Trust.
U Pty Ltd
Within 35 days the father must:
(a)Do all acts and execute all documents necessary to cause U Pty Ltd (ACN …) to release the wife from any claim it may have against her;
(b)Do all acts and execute all documents necessary to cause the wife to be released from all guarantees given by her to the Australia and New Zealand Banking Group Limited in relations to the company U Pty Ltd including but not limited to guarantees given by her in relation to ANZ Bank Account number …69 in the name of U Pty Ltd;
(c)Do all acts necessary to cause the wife to be released from any other liability of U Pty Ltd whether such liability is past, present or future; and
(d)Indemnify the wife and forever thereafter keep her indemnified in respect of any financial liability of the wife arising out of or in relation to U Pty Ltd.
Other property
Unless otherwise specified in these orders as between the parties:
(a)Each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)Unless otherwise agreed herein each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
If either party refuses or neglects to sign within 14 days of a written request to do so any documents necessary to put into effect to all or any of the terms of these orders the Registrar of the Newcastle Registry of the Family Court of Australia is appointed pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of the defaulting party and that:
(a)The Registrar do all necessary acts and things to give force and effect to these orders; and
(b)The defaulting party pay the costs of the other party on a solicitor/own client basis.
Child Support
The application by the wife pursuant to Division 4 Part 7 of the Child Support (Assessment) Act 1989 [Orders 8 to 12 inclusive] for a departure from current assessment of child support for the children is dismissed.
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 Carlson & Carlson 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 NEWCASTLE |
FILE NUMBER: NCC1538 of 2015
| Mr Carlson |
Applicant
And
| Ms Carlson |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are competing applications in respect of:
(a)Parenting arrangements for two teenage boys aged 15 and 13 at date of trial.
(b)Adjustment of interests in matrimonial property; and
(c)Child support departure orders.
The parties began living together in 2000 and married in 2001. The subject children were born in 2002 and 2004 respectively.
On 19 December 2014 the parties separated under one roof, both remaining resident in the family home. The father regards March 2015 as the date of final separation. The difference has no bearing on issues in dispute.
On 16 June 2015 the mother left the matrimonial home with the children while the father was at work with the intention to end separation under one roof.
Pursuant to Orders made on 12 August 2015, after an interim hearing, the father moved out of the family home, the mother and children moved back in and have remained living there since.
The parties divorce was finalised on 16 August 2016.
The Trial
The trial was heard over the allocated four days commencing 11 September 2017. The evidence was concluded by the end of the fourth day, but there was insufficient time for submissions.
Considerable time had been taken dealing with objections to affidavits and also in relation to tenders on behalf of the husband to which objection was taken on behalf of the wife strenuously and successfully. The rejected documents were marked as rejected exhibits.[1]
[1] Rejected Exhibits A-E
The first such tender came at 2.40 pm on the first day and was rejected after submissions, with brief ex-tempore reasons.
There was a report tendered and an affidavit of the husband on the second day.
There was an affidavit of the accountant for the husband’s business on the third day.
There were documents tendered relating to the sale by the husband of a matrimonial asset [a boat] on the fourth day.
The rejected exhibits all contained information that could or should have been filed as part of the husband’s case. The husband was unrepresented when the matter was set down for hearing. Counsel appeared for the husband for trial.
The difficulty for the husband was that he expressly did not want the trial to be adjourned but wanted to rectify his position. He had probably been advised by counsel of deficiencies in his evidence. The unfairness to the wife of contending with material during the course of the trial was accorded greater weight.
On the final day, 14 September 2017 at 5.10 pm counsel for the father asked that the matter go over part-heard because he was unable to complete his cross-examination. At that point for the first time there was a concession by counsel that “the husband had not been as compliant and cooperative as he should have been.” More time was allowed, despite time taken having exceeded the trial plan.
Orders and directions were made for the filing of submissions in a schedule ending 3 November 2017. The Court rose at 6.25 pm.
Judgment was reserved pending receipt of written submissions.
Events post trial
On 25 September the Independent Children’s Lawyer (“ICL”) filed written submissions within time.
The father whose submissions were due by 13 October 2017 did not file any submissions.
Application for judge to disqualify
On 18 October 2017 the father filed an application supported by an affidavit of the husband, for the trial judge to disqualify herself. The application was listed for 9 November 2017.
On 7 November 2017 the mother filed her written submissions which had been due by 27 October 2017.
On 9 November 2017 the application of the father was heard and dismissed. Reasons were given ex-tempore.
The submissions timetable was varied on the unopposed application of the father. The father was to file his submissions by 23 November 2017 with the mother to file any submissions in reply by 8 December 2017.
On 23 January 2018 the father filed submissions.
On 2 February 2018 the mother filed her submissions which in the circumstances were timely.
Accordingly judgment was reserved on 2 February 2018.
The Parties
Applicant father
The applicant is the husband and father (“the father”) aged 46. The father is self-employed as a tradesman and the sole shareholder and director of the commercial entity he uses to conduct his trade. The father lives in rented premises. The preferred course for the father is to return to the family home to the exclusion of the mother.
Respondent Mother
The respondent is the wife and mother (“the mother”) aged 46. The respondent has two sources of income. She works part time in hospitality and she also runs a small business which she operates out of the former matrimonial home. Her preference is to remain living there.
The parties reside in close proximity to each other, in Suburb G, a suburb of J Town.
APPLICATIONS OF THE PARTIES
The parties are in dispute in relation to all aspects of future care and financial support for the children and adjustment of interests in property.
Parenting
Father
The application of the father is for the children to live in an equal care arrangement, being week about care with changeovers on Monday, and for the parents to share parental responsibility.
Mother
The application of the mother is that she retain sole parental responsibility for the children, that the children live with her and the children continue to spend each alternate weekend with the father.
The alternate weekend arrangement, extended slightly, is to continue through school holidays rather than the parties equally sharing school holiday time.
Further, the mother seeks a restraint on the father approaching the former matrimonial home, the mother or the children other than in accordance with any orders made in the proceedings.
Property
Father
The father proposes that the wife transfers to him all her interest in the former matrimonial home and the commercial entities utilised in conducting his business. In consideration of these transfers the father will indemnify the wife for any liabilities relating to the property or business and transfer to the wife the 4WD vehicle. There was a late amendment being a proposal for an additional order being a payment by the father to the mother of $150,000 at time of transfer of her interest in the home.
Mother
The mother seeks the transfer of the father’s interest in the former matrimonial home to her. In consideration of that transfer the wife proposes to transfer the father all interest in the commercial businesses operated by the father.
Child Support
Wife
The wife proposes a Child Support Departure Order requiring the payment of $7,685 per annum for each child until they attain majority with the sums to be capitalised to age 18 for each child and paid within 35 days of final orders.
Father
The father proposes a Child Support Departure Order which would provide a reduction of current arrears to nil, payment by him of certain defined expenses 100 per cent of which would then be deducted from his assessed contribution.
Short History of Relevant Events
The parties commenced cohabitation in June 2000, then married in 2001.
In December 2001 the parties purchased for $206,000 a property at H Street Suburb G, a town in the J Town area of NSW.
During 2002 the existing house on the property was demolished. The parties borrowed from the father’s parents and the ANZ bank to pay for the demolition and to build a house (“the family home”) and a business premises. Total borrowings were about $450,000. The parties hold the title to the property as joint tenants.
In 2002 the elder child was born.
In December 2002 the parties and their first child moved into the family home.
In 2004 the younger child was born.
In August 2004 a second mortgage was secured on the family home.
On 1 October 2006 a Deed of Settlement established a trust known as the Carlson Family Trust. The trustee of the trust was I Group Pty Ltd (“the I Group”). The parties were the directors and shareholders of the I Group, with the husband being the majority shareholder.
In November 2006 the I Group borrowed to buy a property at II Street, Suburb G for $748,000. The husband operated his business from these commercial premises.
On 7 March 2008 the father alone borrowed to buy an investment property, a unit in a resort at V Town, for $750,000. The parties and children went there for holidays from time to time.
In 2008 the father was charged with the alleged sexual assault of two males under the age of 18.
In 2009 that matter went to trial. The mother gave evidence in support of the father in those criminal proceedings. The father was acquitted.
In March 2010 the husband secured an equity loan of $150,000 guaranteed by the wife.
On 17 August 2012 the husband registered a company W Pty Ltd. That company is the trustee of the Carlson Family Superannuation Fund. The husband is the only member of the fund.
On 24 September 2010 there was a Review and Variation letter from the ANZ Bank. The mother contends that the signatures on it purporting to be hers are not hers.[2]
[2] Affidavit of the mother filed 31/8/2017, Annexure M9
Likewise a letter dated 27 June 2011 from the bank has signatures which the mother denies are hers.
Separation
In December 2014 there was an incident in the presence of the children and family friends which either lead to separation under the one roof or at least high conflict.
On 16 June 2015 the mother left the home with the children and travelled to stay with her family in Victoria.
On 18 June 2015 the father filed an Initiating Application in the Federal Circuit Court which was given a return date in 10 weeks’ time.
On 19 June 2015 the father filed a Review of that listing decision.
On 6 July 2017 the mother filed a Response together with a Notice identifying risk of abuse of the children from the father.
On 7 July 2015 the matter was set down for urgent interim hearing.
On 10 July 2015 the father filed an Amended Application seeking exclusive occupation of the home. He also filed nine affidavits in support.
Transfer to the Family Court
On 15 July 2015 the date for the interim hearing (by then due to be heard 2 days later) was vacated by the FCC and the matter was transferred to this Court.
The registrar of this Court listed the matter before herself on the 5 August 2015
On the same day the parties and children attended a Child Inclusive Conference.
On 24 July 2015 the father sought a review of the listing decision.
On 30 July 2015 a judge of this Court made directions for interim hearing before me on 10 August 2015.
Interim Orders – 12 August 2015
On 10 August 2015 the interim hearing took place.
Order and reasons were delivered two days later. The orders provided in summary for the children to live with the mother in the family home and return to their schools. After the father had vacated the home there was provision for time with him on alternate weekends. There were also restraints on conduct and in the financial context.
On 12 September 2015 the father lodged an appeal. The appeal was later dismissed.
All aspects of the dispute were managed in preparation for conciliation and ultimately trial.
Evidence
The documents relied on in respect of the application were as follows:
The [Applicant Father]
(a)Amended Initiating Application filed 18/08/2017;
(b)Affidavit of the applicant father filed 31/08/2017;
(c)Financial Statement of father filed 31/08/2017;
(d)Affidavit of Paternal Grandmother- Ms Q Carlson filed 31/08/2017;
(e)Affidavit of Ms X filed 31/08/2017;
(f)Affidavit of Ms S filed 31/08/2017;
The [Respondent Mother]
(g)Amended Response filed 7/07/2017;
(h)Financial Statement filed 31/08/2017;
(i)Affidavit of the respondent mother filed 31/08/2017; and
Reports
(j)Family Report dated 16/08/2016.
The Law
Parenting
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Parental Responsibility
The Family Consultant observed that “the parents have a very acrimonious relationship at present and are unable to communicate effectively”[3] The evidence supports a finding that observation continues to be accurate.
[3] Family Report dated 16/8/2016, par 43
The father proposes equal shared parental responsibility. It is not practical at all. The parties cannot have a civil conversation. They would be quite unequal to the task of raising important issues, talking over the possibilities and compromising. Even less likely is agreement by one parent to what the other wants simply on the acceptance that the other parent has the best interests of the children in mind.
The father appears to believe that the mother contrived to exclude him from the home and the children. The mother believes that the father is deliberately disrespectful to her in order to humiliate her. They suspect each other’s motives.
Accordingly, one parent should exercise long term parental responsibility in order for decisions to be made promptly and without attendant drama. Since the children live with the mother it should be her.
Fortunately the high school which the children attend is settled as is their religious instruction.
Each parent should exercise sole parental responsibility about day to day matters when the children are living or staying with them.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The two children do have meaningful relationships with each of their parents, the continuation of which will be beneficial.
Neither parent seeks to exclude the other from the lives of the children.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
There has been bitter conflict between these parties. That is exemplified by the number of court events before me, in the Full Court and initially in the Federal Circuit Court, between separation in mid- 2015 and trial in September 2017.
The evidence would support a conclusion that there has been some psychological harm to the children from exposure to the hateful, defiant and contemptuous behaviour directed by the parties at each other, sometimes in the direct presence of their sons.
There has been no exposure of the children to family violence.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
Both children have expressed a strong preference for living with their mother since first interviewed in 2015.[4] Interim orders reflected those strongly expressed views which had not changed when they were re-interviewed for the Family Report.
[4] Child Inclusive Conference Memorandum dated 15/07/2015
The father re-iterated during cross examination his own strongly held view that the children had been coached. He rejected the possibility that either of the boys might have been expressing their feelings honestly. He thought the Family Consultant “got it wrong” in 2015 so chose not to attend the following year for interview for the Family Report. He shared with the Family Consultant, by telephone, his view that she was, and would be, biased.
Coaching seems improbable where the children spontaneously expressed love and affection for the father and pleasure at the prospect of spending time with him. They love both their parents but prefer to live with their mother. It is unsurprising where both parents were involved with their lives but their mother was more available to them.
I accept that their views are their own and that their wishes should be given real weight given their age and consistency of view.
The subject children are young people, now in Year 10 (B) and Year 9 (C) at high school. No doubt they are beginning to develop independent lives, especially B, although still needing the emotional and financial support of their parents.
B, then aged 14, told the Family Consultant that he understood that his parents did not get along.[5]
[5] Family Report dated 16/8/2016, pars 22-31
He was at that time content with alternate weekends but no block holidays. He described himself as having a good relationship with the father and enjoying going to see him.
His answers about additional time with the father suggest that he was conscious of his mother being worried and missing him if he spent block time but that he also had genuine personal views “… an extra night during school holidays would be ok” but he did not want a week and “... would be unhappy if the judge ordered that he spend half the holidays, especially over Christmas.”[6]
[6] Family Report dated 16/8/2016, par 27
Two months later in September 2016 orders were made expanding time during school holidays but not to the equal shared time the father had wanted. The father chose to retain the children on several occasions letting the mother know once the children were with him that that he would not be complying.
One example of this was in January 2017. The period of time was 20-24 January 2017. The father returned the children at 7.30 pm on 27 January 2017. He directed the children not to tell the mother where they were. He impounded their phones during the night and checked their outgoing messages during the day. He withheld messages to them from the mother.
For B this was frustrating and upsetting, he had made his own holiday plans with a friend based on the time he believed he would be away.
The father may have felt that he was enjoying a victory over the mother or remedying the unfairness he perceived the orders to impose on him. Apparently he did not consider the effect on the children of treating them in that humiliating way as if they were much younger children.
I conclude that B loves his father and wants to see him but has not enjoyed periods of time and changeovers being used for point scoring.
C then 12 and a half years also told the Family Consultant that he knew his parents got on “not really well”.
C was content with alternate weekends. He thought an extra day on weekends during holiday periods would be fine. He also expressed the view that two or three weeks away from either parent was too long.
I conclude that he was expressing love and affection for both parents and not wanting too much time away from either.
C raised specific issues. In his mother’s home he was allowed to telephone his father. In his father’s home he was not permitted to ring his mother. His father had explained the reason as he [the father] only had them for three days. C was clearly unhappy about this rule. He considered it would be an issue if the Court ordered him to spend more time with his father.[7] B told his mother about the prohibition on calling and felt the same way.[8]
[7] Family Report dated 16/8/2016, par 36
[8] Affidavit of the mother filed 31/8/2017, par 129
C also said he wanted to spend Christmas in one place and see the father around that time. I infer that C was asking not be “divided” between his parents on Christmas Day.
I take his views into account on both issues.
The children, at their age should be able to telephone the other parent at any reasonable time.
The celebration of Christmas should be happy and enjoyable not fraught with the knowledge that it has to be experienced twice in one day in order to be “fair” to parents who naturally wish to have their children with them for special occasions.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The children are well known to the extended family on both sides. They will benefit if those relationships are maintained, provided that family members speak respectfully about the other side of the family in the presence of the children.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
Child Support has been a contentious issue.
Post-separation in June 2015 the father did not directly provide financially for the children although of course they had the benefit of living in the family home. The business paid mortgage payments, council and water rates and all costs of the motor vehicle that the mother uses.
The father paid for a private health fund for the mother and children until July 2016, thereafter for the children alone.
In September 2015 the mother applied for an assessment. After a preliminary error based on a mistake about percentages of care, the assessment issued for $749 per month.
A further amended assessment issued soon after due to a drop in income reported by the father. The new amount was $463 per month.
The mother objected successfully based on the income asserted by the father in his Financial Statement filed in these proceedings.
In February 2016 another assessment issued at the earlier level, that is, $749 per month.
The father chose to pay at the level of $413 per month based on his own calculations. He did so for about six months.
He believed that the mother made false statements about her financial position and failed to disclose income from her business. After July 2016 the father ceased making any payments. He was in my view protesting the assessment.
At no stage did the parties have a sensible conversation about what the children needed and what each could afford.
On 31 August 2017[9] the arrears of Child Support was $11,872. The father had been advised of a higher amount $13,319.[10]
[9] Affidavit of the mother filed 31/8/2017, par 216
[10] Affidavit of the father filed 31/8/2017, par 249
It is for this reason that the mother makes a departure application seeking capitalisation of future payments.
The father proposes a departure also which would reduce the arrears to nil. He wishes to be free to provide support through relevant third parties such as the school for fees.
There is no evidence to suggest that the children have gone without or suffered material neglect, but in the wider sense the only losers in this dispute about money are the children. They are old enough to feel uncomfortable about it.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
This is an important consideration for an apparently minor matter. Changeovers have been difficult for the children since separation. The father was restrained from coming to the property but persisted in doing so.
It angered and upset the mother. The children must have dreaded those changeover events.
Now both boys are quite capable of walking or cycling between the houses or coming home to either parent on the bus after school.
Alternate weekends will work best if there is no contact between the parents and no basis for it to happen. The children can be collected from school or make their own way to the home of the father on Friday and be delivered or make their own way to school on the following Monday.
One or both of the children may prefer to go home on Sunday evening for reasons related to school work, early starts or convenience for other reasons. That will be a decision for the father in consultation with them and the mother.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Both parents have the capacity to meet the children’s needs when they are focusing on the children, not each other.
That capacity has been impaired by their angry feelings about each other.
The mother initially raised concerns about the father representing a risk to the children because of the past criminal charges. She pressed for supervision.
The mother accepted that this Court in August 2015 did not consider that there was unacceptable risk, or any at all in that regard. However she did tell C at least, about the charges his father had faced. She was fearful that the child would hear about it at school and decided the information would be better to come from her.
The father has been offended and angered by her behaviour and attitude to him. He has behaved in a defiant and immature way, it seems with the sole intention of “winding her up”. She became inflexible in relation to the orders; he become more flagrant in flouting them.
The children have felt embarrassed and annoyed.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
B was 15 at date of trial.
When he was 14 he was assessed by the Family Consultant as “a child with concrete thinking and who has some developmental challenges.”[11] She also described him as a tall, quiet child who answered questions in a very direct manner.
[11] Family Report dated 16/8/2017, pars 22, 31
The Family Consultant was unsure as to what B really wanted in relation to time with his father but considered that “it may be that for B it is easier to cope with the parental conflict by taking a firm position in relation to issues than to have to weigh up the pros and cons.”[12]
[12] Family Report dated 16/8/2016, par 31
B will be 18 in August 2020. Accordingly, in a little over two years he will be able to make his own decisions and spend time with each of his parents as he himself chooses. That will no doubt be a relief for him.
C was 13 at date of trial.
When he was 12 and a half he was assessed “to present developmentally within normal parameters.” The Family Consultant also described him as “a thoughtful child who carefully considered his answers.”[13]
[13] Family Report dated 16/8/2016, par 32
Whilst compliant with parental directions he did not appear to be as concerned with upsetting his parents, especially his mother, as B was.
C will be 18 in early 2022. In less than four years he too will be an adult and able to make his own decisions about time with each of his parents.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
Both parents were fully engaged with the children prior to separation and were interested in their sports, activities and progress at school. The father coached B’s sports team. Both parents were involved in Scouts.
They have been loving and committed parents.
Since separation and perhaps because of the dramatic nature of it, the parents have been enmeshed in blaming each other to the detriment of the children. Both have exposed the children to their conflict.
The father has deliberately flouted orders in minor and more significant ways. He has developed a brooding sense of injustice over “eviction” from the family home in 2015 and separation from his children. He has not hidden these ideas from the children. I conclude that he has wanted them to understand just how unfairly, in his view, he has been treated by the courts and by their mother.
The mother has told the children that she would be upset and would miss them if they were away from her for longer periods than a few days. By doing so she was encouraging them to take responsibility for her emotional well-being. In front of the children she filmed the father coming on to the home property when he came to collect them himself, in breach of orders.
She has posted on social media about the criminal charges in respect of which the father was acquitted when the children were very young.
Both parents have by their actions created pressure and conflict for the children about the expression of their own true feelings.
Family Violence
The mother alleged uncontained and threatening language and behaviour by the father towards her just prior to final physical separation in June 2015. She reacted to his threat to burn down the salon as real; the father minimised it as empty words spoken in anger.
Since then the children have not been exposed to family violence.
Any other fact or circumstance that the court thinks is relevant
The children as middle teenagers should now have the opportunity to spend more time with their father and importantly the extended paternal family by whom they are greatly loved and missed.
They both enjoyed outdoor activities, water sports and scouting. Holidays with their father can be a chance to enjoy such things with him. They also enjoy visiting the extended maternal family in Victoria.
As adolescents the children have their own friendships and independent interests such that they no longer benefit from spending all their time with either parent.
Both boys will do best if the two parents focus on the future when high school and childhood itself will be over. This will require the parties to fully conceal from the children animosity and grievance about the past even if they both continue to feel it.
Property
Approach to alteration of interests in property
In considering applications for alteration of property interests and transfer of property the Court must:
(i)Identify the existing legal and equitable interests of the parties in property;[14]
(ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;
(iii)
If an alteration should be made, to consider the matters contained in
ss 79(4) and 75(2) of the Act in coming to an adjustment; and
(iv)Analyse and consider whether the adjustment under consideration would be just and equitable.
[14] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116
1. Identify the assets and liabilities of the parties
The parties’ assets and liabilities are set out in the joint balance sheet:[15]
[15] Exhibit 6
| O’ship | Description | Wife’s value | Husband’s value | ||
| ASSETS | |||||
| 1 | Joint | H Street, Suburb G | 680,000 | 680,000 | |
| 2 | Trust | Carlson Family Trust | 440,292 | -(97,998) | |
| 3 | Husb | U Pty Limited – Net Assets | 36,245 | -(456,510) | |
| 4 | Husb | U Pty Limited – Goodwill | Not known | 0 | |
| 5 | Wife | Furniture | 6,580 | 6,580 | |
| 6 | Wife | Furniture not produced to valuer | 45,000 | ||
| 7 | Husb | Furniture | 6,265 | 6,265 | |
| 8 | Wife | Artwork in Wife’s possession – Valued | 2,995 | 2,995 | |
| 9 | Husb | Artwork in Father’s possession – Valued | 13,150 | 13,150 | |
| 10 | Husb | Artwork in Father’s possession – Not presented by Father | Not known | 2,600 | |
| 11 | Wife | Jewellery | 16,224 | 16,824 | |
| 12 | Wife | Jewellery not produced for valuation | 5,000 | ||
| 13 | Husb | Jewellery | 960 | 960 | |
| 14 | Husb | Bank accounts @ separation | 3,150 | 0 | |
| 15 | Wife | Bank Accounts @ separation | 150 | 0 | |
| 16 | Wife | Wife’s sole trader business | 450 | 4,000 | |
| 17 | Wife | Business items not produced for valuation | 4,000 | ||
| 18 | Husb | Listed shares | 55,800 | 3,818 | |
| 19 | Wife | Proceeds from sale of Boat & Jet Ski | 25,000 | 25,000 | |
| 20 | Husb | Proceeds from sale of Boat & Jet Ski | 23,700 | 23,700 | |
| 21 | Husb | Current bank accounts | 0 | ||
| 22 | Wife | Current bank accounts | 8,100 | ||
| Total | 1,317,226 | 293,484 | |||
| ADDBACKS | |||||
| 23 | Husb | Jet Ski – (Market value $15,500 less sale price $9,200) | 6,300 | 0 | |
| 24 | Husb | Boat – (Market value $73,000 less sale price $39,500) | 33,500 | 0 | |
| Total | $39,800.00 | $ 0.00 | |||
| LIABILITIES | |||||
| 25 | Joint | ANZ Margin Loan ***12 | 50,000 | 50,030 | |
| 26 | Wife | Westpac MasterCard | 0 | 0 | |
| 27 | Wife | Australian Taxation Office | 15,633 | 0 | |
| 28 | Wife | A Low (Legal Fees) | 149,829 | 0 | |
| 29 | Joint | Y Valuers H Street | 770 | ||
| 30 | Joint | Loan from D & G Carlson (H's parents) – build costs | 0 | 135,008 | |
| 31 | Husb | Gold credit card …64 (FF) | 16,224 | ||
| 32 | Husb | Fee for engineer report re commercial property damage – owing to Q & R Carlson | 2,200 | ||
| 33 | Husb | Loan from Q & R Carlson – legal fees | 169,300 | ||
| Total | $215,462 | $373,532 | |||
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Wife’s value | Father’s value | |
| 34 | Husb | Carlson Family Super | SMSF | 308,500 | 239,509 |
| 35 | Wife | Super 1 | Accumulation | 68,997 | 68,997 |
| 36 | Wife | Super 2 | Accumulation | 1,971 | 1,971 |
| Total | $379,468.00 | $310,477.00 | |||
| FINANCIAL RESOURCES | |||||
| O’ship | Description | Wife’s value | Father’s value | ||
| 37 | 0 | 0 | |||
| 38 | 0 | 0 | |||
| Total | $ 0.00 | $ 0.00 | |||
Notes
In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading:
Why an item should not be on the balance sheet.
Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert.
Whether documents in the possession of the other party need to be provided before the value of an item can be agreed.
Any other comment a party wishes to make in relation to the disputed item.
| Item No | ||
| 1 | Father - FMH Has agreed damage to the business premises. The father had a builder quote to repair cost was approximately $9,000 Wife - Agreed Value | |
| 2 | Father - See annexure A for breakdown of father's valuation. There have been some recent draft 2017 financial statements of the trustee company prepared and disclosed. Wife contends that in relation to the Carlson Family Trust, the Father has failed to give adequate disclosure, the Father has failed to produce documents to the single expert, the Father has been obstructive to the process of valuing the underlying properties and the Father has wasted assets of the Trust. The Wife’s figure for the Trust is arrived at doing the best that she can from the information available. The Wife’s calculation is attached at Annexure “B” | |
| 3 | Father - See annexure C for breakdown of father's valuation. There have been some recent draft 2017 financial statements of the company prepared and disclosed. Wife contends that in relation to the company U Pty Limited, the Father has failed to give adequate disclosure, the Father has failed to produce documents to the single expert and the Father has wasted assets of the company. The Wife’s figure is based on the Net Assets reported for the company at 30 June 2014 which is the last set of financial statements for the company produced by the Father, A copy of the 2014 Financial Statements for U Pty Ltd is Exhibit M16 to the Wife’s Affidavit. | |
| 4 | Father contends any goodwill that U Pty Ltd had has been eroded to NIL by actions and words of the wife to customers and the local community since separation Wife contends that in relation to the company U Pty Limited, the Father has failed to give adequate disclosure and the Father has failed to produce documents to the single expert to obstruct the process of valuing the company. | |
| 5 | Single Expert Valuation – Mr Z 7 March 2016 | |
| 6 | Father - The wife has not produced all the household furniture in her possession for valuation by the single expert Mr Z. Items located at the former matrimonial home. Wife – All furniture in the home was produced for inspection by the single expert. | |
| 7 | Single Expert Valuation - Mr Z 7 March 2016 | |
| 8 | Single Expert Valuation – Mr AA 15 February 2016 | |
| 9 | Single Expert Valuation – Mr AA 15 February 2016 | |
| 10 | Father – The father owned three pieces of artwork at the commencement of the relationship. Wife - The Wife contends that the Father has failed to produce artwork in his possession to the single expert and has failed to comply with Order 9 made 21 September 2016. | |
| 11 | Single Expert Valuation – Mr BB | |
| 12 | Father - The father contents that the wife did not produce all the jewellery items in her possession for valuation by single expert Mr BB. Wife - All jewellery in the Wife’s possession was produced for inspection by the single expert. | |
| 13 | Single Expert Valuation – Mr BB | |
| 14 | Father - Not relevant Wife - The Wife contends that the Father admits to saving shortly after separation of $3,150. (Father’s 1st Financial Statement filed 10 July 2015) | |
| 15 | Not relevant | |
| 16 | Father - This value includes the goodwill of the wife's business. The wife did not produce any business records client cards, diary notes for the single expert Ms CC to enable the business to be valued. Wife – The Wife responded to all requests for information from the single expert, Ms CC. | |
| 17 | Father - The wife did not produce all the business equipment for valuation. Subpoenaed documents from Synergy show stock being purchased by the wife for use in equipment for her business. Annual revenue from these products is estimated between $18,000.00 to $20,000.00. Wife - All business equipment in the Wife’s possession was produced for inspection by the single expert. | |
| 18 | Father - The father was required to sell shares in February to April 2017 to repay his parents for paying his rent on the Suburb G unit where he has lived since the exclusive occupancy order Wife - The Wife contends that the Father has listed shares with a value of $55.800 (Father’s 1st Financial Statement filed 10 July 2015 - Para 38). In the alternative, the Wife contends that the Father has disposed of listed shares with no proper disclosure to the Wife or accounting for the proceeds from sale of those shares. | |
| 19 & 20 | Orders made 12 August 2015, Reasons for Judgment Para 42 | |
| 21 | As per father's financial statement filed 31 August 2017 | |
| 22 | As per wife's financial statement filed 31 August 2017 | |
| 23 | Father – the father contends that he sold the jet ski for market value. Wife - Prior to the Interim Hearing in August 2015 and without notice to the Wife, the Father sold a Jet Ski for a price of $9,200. The Wife has requested disclosure of the documents relating to the sale including evidence of the account into which the proceeds of sale were paid. No documents have been produced by the Father. The Wife’s contends that the Jet Ski had a market value of $15,500 and was sold under market value by $6,300. (Wife’s Affidavit Para 76, Exhibit M22) | |
| 24 | Father – the father contends that he sold the boat for market value in circumstances where the boat motor and leg had significant damage and required significant repair. Wife - Prior to the Interim Hearing in August 2015 and without notice to the Wife, the Father sold the Boat for a price of $39,500. The Wife has requested disclosure of the documents relating to the sale including evidence of the account into which the proceeds of sale were paid. No documents have been produced by the Father. The Wife’s contends that the Boat had a market value of $73,000 and was sold under market value by $33,500. (Wife’s Affidavit Para 75, Exhibit M21) | |
| 27 | Father – the father does not concede this liability. The wife has not lodged the amended tax returns and the debt is therefore not due and payable and may not eventuate. Wife contends that she has an expected liability for Income Tax for the Financial Years 2010. 2011. 2012 and 2013 (Wife’s Affidavit Para 80 and 81, Exhibit M25) | |
| 29 | Father – the parties agreed to jointly engage Y Valuers to prepare a valuation report on the former matrimonial home. The quoted fee for this report was $770. Wife – The valuation process was not completed as a result of conduct of the Father. The Wife is not aware of any outstanding fees but in the event that there are fees owing, the Wife contends that those fees are the responsibility of the Father. | |
| 30 | Father - Money loaned from the father's parents to both the father and the wife for the construction and furnishings of the FMH. Wife – The Wife denies any loan | |
| 31 | Father – part of this debt was incurred to purchase the father's furniture referred to at item 7 of this balance sheet Wife – The Wife agreed to make furniture available to the Father after returning to the home.. The Wife contends that the Father has not provided adequate or timely disclosure in relation to his credit card liabilities. . | |
| 32 | Father – invoice raised for report regarding damage to Suburb G commercial premises annexed to father's Affidavit filed 31 August 2017. The father's parents paid this invoice on behalf of the father and require repayment. Wife – The Wife contends that any liability for the report is the responsibility of the Father in circumstances where Mr DD was appointed as single expert (Orders 21 September 2016) and the Father failed to comply with Orders requiring him to provide instructions. | |
| 34 | Father - Consists of bank account $39,509 and estimated value of 1/3 Suburb G commercial premises (total value $600,000 therefore 1/3 value $200,000) Wife - The Wife contends that the Father admits to the value of his interest in the Carlson Family Superannuation Fund has a value of $308,500 Father’s 1st Financial Statement filed 10 July 2015 | |
| 35 | Father - The wife's Superannuation with Guild super has been paid by the father. The father's company has paid into the wife's superannuation fund. The father has made salary contribution as lump sum of $10,000.00 and further payments of approximately $26,180.00 from U Pty Ltd for wages paid to Cathy. | |
Annexure A to balance sheet
Value of Carlson Family Trust – Father
Assets:
2/3 share Suburb G $400,000 E
V Town $300,000 E
4WD $ 9,500
ANZ account $ 39
$709,539
Less known liabilities:
ANZ loan ..19 $520,368
ANZ loan …82 $ 1,104
2 x NPL invoice $2,158
Trustee costs $19,800
EE Valuers $2,750
2 x Mr FF invoice $3,603
$549,783
Less other estimated expenses:
Y Valuers $1,650
GG $2,200
OSR (land tax Sub G) $54,000
CGT Sub G $47,000
CGT V Town $25,000
Real Estate Ag 1 (V Town) $9,753
Real Estate Ag 2 (Sub G) $17,200
HH Solicitors (contracts) $4,140
Trustee disbursement s $45,000
Outstanding utilities $40,000
FBT (4WD) $4,311
Half accountant fees $7,500
$257,754
NET ASSETS: - ($97,998)
Notes:
The Suburb G commercial property has major structural damage (see report annexed to Father's Affidavit). In 2011 the building had similar damage, which cost $160,000 to rectify.
ANZ loan … 82 – balance at separation was $59,000. Father has solely paid this down since separation
Mr FF accountant fees – relate to preparation of financial documents for Court mid 2017 and also for preparation of 2017 financial documents for final hearing
Trustee for sale disbursements – this relates to the sale of both properties. Fees include mortgage discharge costs, legal fees, building and structural reports for Suburb G, title searches and insurance costs for both properties.
Outstanding utilities include strata fees, water and council rates and electricity.
The company will be subject to fringe benefit tax of $4,311 relating to the 4WD driven by the wife solely for personal use.
Annexure “B”
Wife’s Calculation of value of Carlson Family Trust
Assets
II Street, Suburb G (2/3 share of $800,000)
(Wife’s Affidavit Para 68 to 69, Exhibit M18) $533,333
JJ Street, V Town
(Wife’s Affidavit Para 70 and 71. Exhibit M19) $330,000
Balance of assets (per 2014 Financial Statement
(Wife’s Affidavit Para 66 Exhibit M17) $33,755
Rent owed by U Pty Limited for II Street
Road, Suburb G (Est: 6 months @ $8,500/month)(2/3 share)
(Wife’s Affidavit Para 227, Exhibit M51 – Specifically Market Lease
Analysis at Exhibit page 223) $34,000
Money owed by Mr Carlson and/or U Pty Ltd for rent
retained from V Town property and not paid to Trust
(Wife’s Affidavit Para 228, Exhibit M53 – Owners YTD Summary
for V Town)$22,516 $953,604
Liabilities
ANZ Loan #7919 $512,470
ANZ Loan #3882 $842 $513,312
Net Assets$440,292
Annexure C to balance sheet
Value of U Pty Ltd – Father
Assets:
Stock $6,500
Plant and equipment $3,231
$9,731
Less liabilities:
Long service leave (incl tax and super) $180,000
ATO outstanding taxation liability $63,456
ATO (late BAS) $2,500
ANZ … 69 $151,407
ANZ … 59 (credit card) $16,176
ANZ … 57 (credit card) $9,969
Prosper loan $35,233
½ accountant costs $7,500
$466,241
NET ASSETS: - ($456,510)
2. Would it be just and equitable to make an adjustment to interests in property
Both parties wish to have their property interests separated and adjusted to reflect their respective contributions.
3. Consideration of ss 79(4) and 75(2) of the Act in order to come to a just and equitable adjustment
Contributions under section 79(4)
Initial Contributions
The parties were both aged about 30 when they began living together. The father had his own business, U Pty Ltd. The mother was employed full time.
The father on his own evidence had a successful small business employing five people. He gave evidence of owning cars and tools, a houseful of furniture and furnishings, a painting, jewellery and shares. He estimates savings of $90,000 and superannuation interest of $50,000. There was no corroborative documents.
The mother did not concede the contended assets other than the business being operative (U Pty Ltd), and a painting with an estimated value of $5,000.
I accept that as part of the value of his business the husband would have had cars and tools and probably some cash at the bank. The business provided a reasonable income.
The mother on her evidence had a 10 year old car, some jewellery, modest savings and superannuation of about $25,000. There were no corroborative documents. The husband did not concede savings and superannuation but only because he had not seen proof.
I conclude that the position of the father was stronger financially. He had built the business up over 10 years and was assisted by his own mother doing the books of the business. The mother had moved from the State of Victoria, had employment but modest assets.
Contributions during the marriage
The wife asserts that she lacked knowledge of general matrimonial finances. She set out the searches and enquiries she made as a result of these proceedings in order to learn in retrospect about how property purchases were financed and when debts were incurred.[16]
[16] Affidavit of the mother filed 31/08/2017, pars 38-54
I infer that although at times during the marriage the wife sometimes asked questions such as “how can we afford that?” she was generally willing to allow the husband to make the financial decisions. She must also have signed documents on request. That is not to say she was always content with that arrangement, especially being told after the event, but there is no evidence of protest or dispute during the marriage. There may have been some about the husband spending more than $100,000 on a boat.
The father conceded that his business was run by himself and his mother with no discussion with the wife. It is consistent with the mother being unaware of the financial position of the parties.
The mother ran her beauty business independently. She provided most of the day to day care of the children.
The parties’ contributions during the marriage were equal although different in nature.
Conclusion
The father did not make full disclosure of his financial position in his trial documents. Documents sought to be tendered into evidence and relied on by him were rejected for the reasons given. Accordingly the picture of the financial position of the father and the assets [the trust and corporate entities] he controls was not at all clear.
However the father has a business which provided a very comfortable standard of living during the marriage and enabled overseas holidays, cruises, the purchase of a motor cruiser and jet-ski, golf as a recreational sport, and the purchase of a 4WD motor vehicle.
His position before the Court is that he retain all assets and make a payment back to the wife of $150,000. His case is that such a payment would simply place him further in debt. On the mother’s case it would represent less than 15 per cent of the asset pool.
Relevant factors under section 75(2)
The relevant matters to be taken into account are as follows.
The age and state of health of each of the parties
The parties are in their middle forties and are apparently in good health.
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
Each party has the capacity to work and does so.
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
The parties have legal responsibility to maintain and care for their children for another two to four years.
Subject to s 75(2)(3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
The husband has an interest in superannuation. The husband set up the fund in 2012. It is apparently self-managed. He has a current interest of $308,500. A one third share of the commercial property from which the husband runs his business was transferred to the trustee company for the fund, W Pty Ltd, for a sale price of $283,334 in 2012.
The husband may make contributions in future which would continue to grow the fund and be a tax advantage. However the pattern to date has not been one of regular contribution. The husband in his Financial Statement did not include a reference to superannuation contribution being made currently.
The husband asserted he had, at cohabitation, superannuation estimated at $50,000. It is not clear what happened to that interest.
The wife has two funds, (one less than $2000), with a combined value of $70,968.
The wife does not disclose any current contribution to superannuation in her Financial Statement. If she has made any contribution as a self-employed person it has been a modest one.
The wife asserts she had $25,000 in superannuation when cohabitation began. It may be included in the wife’s interest in Super 2.
Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
The children have lived in the home with their mother pursuant to Court orders very much over the opposition of the father.
Having concluded that the children’s preference to live with the mother should be supported, it is appropriate for current living arrangements to continue.
The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
From date of cohabitation to divorce the parties’ relationship endured for 16 years. That includes a period of two years of separation.
The need to protect a party who wishes to continue that party's role as a parent
Both parties wish to maintain an active parenting role.
Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
Child support is not currently being paid by the father as assessed, or at all. With the finalisation of the parties’ property settlement there should properly be a fresh assessment. The father has paid Child Support in the past and provided for the children financially for the first two years.
He will probably do so in future.
However the appropriate course is for a fresh assessment on changed circumstances.
4. Analysis of whether the adjustment contemplated is just and equitable
In circumstances where the financial position of the parties and the value of the assets was not clear, despite the best efforts of the mother to understand and put forward as much information as she could, a course has been taken.
The mother, who has a modest income, retains the house which provides a home for herself and the children.
The father, who has the established capacity to earn a substantial income, retains the other assets generated by him in the related entities, including substantial superannuation.
DEPARTURE FROM CHILD SUPPORT ASSESSMENT
Section 117 of the Child Support (Assessment) Act 1989 sets out the matters about which the Court must be satisfied before making an order for departure from administrative assessment:
Court may make departure order
(1)Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)the court is satisfied:
(i)that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii)that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i)the duty of the parent to maintain any other child or another person; or
(ii)special needs of any other child or another person that the parent has a duty to maintain; or
(iii)commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv)high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i)because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia)because of special needs of the child; or
(ib)because of high child care costs in relation to the child; or
(ii)because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i)because of the income, earning capacity, property and financial resources of the child; or
(ia)because of the income, property and financial resources of either parent; or
(ib)because of the earning capacity of either parent; or
(ii)because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
High costs involved in enabling parent to care for a child
(2B)A parent’s costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a)dividing the parent’s adjusted taxable income for the period by 365; and
(b)multiplying the quotient by the number of days in the period.
(2C)If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
High child care costs
(3A)The ground for departure mentioned in subparagraph (2)(b)(ib) is taken not to exist unless:
(a)the costs are incurred by a parent or a non‑parent carer; and
(b)the child is younger than 12 at the start of the child support period.
(3B)Child care costs for a parent can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total more than 5% of the amount worked out by:
(a)dividing the parent’s adjusted taxable income for the period by 365; and
(b)multiplying the quotient by the number of days in the period.
(3C)Child care costs for a non‑parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25% of the costs of the child for that period.
Matters to consider for purposes of subparagraph (1)(b)(ii)
(4)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, property and financial resources of each parent who is a party to the proceeding; and
(da)the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i)to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii)to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5)In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b)the effect that the making of the order would have on:
(i)any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii)the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Proper needs of the child
(6)In having regard to the proper needs of the child, the court must have regard to:
(a)the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b)any special needs of the child.
Income, earning capacity, property and financial resources
(7)In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a)have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b)disregard:
(i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii)any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7A)In having regard to the income, property and financial resources of a parent of the child, the court must:
(a)have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b)disregard:
(i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii)any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7B)In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a)one or more of the following applies:
(i)the parent does not work despite ample opportunity to do so;
(ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii)the parent has changed his or her occupation, industry or working pattern; and
(b)the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i)the parent’s caring responsibilities; or
(ii)the parent’s state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
Direct and indirect costs in providing care
(8)In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
Subsections not to limit consideration of other matters
(9)Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.
The Court must follow the three step process set out in Gyselman & Gyselman[17] and be satisfied that there is a ground for departure under subsection (2), that it is just and equitable as regards the child, the carer entitled to child support and the liable parent as well as being satisfied that it is “otherwise proper” to depart from the Assessment.
[17] Gyselman & Gyselman (1991) 15 Fam LR 219
I do not consider that a departure order is appropriate when the position of both parties has now changed and a reassessment is appropriate.
Orders are made accordingly.
I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 7 June 2018.
Associate:
Date: 7 June 2018
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
-
Commercial Law
Legal Concepts
-
Injunction
-
Remedies
0
2
2