Cerna & Goddard
[2021] FCCA 418
•10 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Cerna & Goddard [2021] FCCA 418
File number(s): DGC 2358 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 10 March 2021 Catchwords: FAMILY LAW – parenting and property – parties in agreement with child living arrangements – parties in dispute as to spend time arrangements with father – small asset pool – largely comprised of superannuation – superannuation split 65% in favour of the wife and 35% to the husband - uncrystallised Centrelink debt included into asset pool. Legislation: Family Law Act 1975 (Cth) ss 60CC, 72, 74, 75, 79, 81, 90XT, 121
Family Law (Superannuation) Regulations 2001
Cases cited: Bevan v Bevan [2013] FamCAFC 116
Dickons v Dickons [2012] FamCAFC 154
Eufrosin v Eufrosin [2014] FamCAFC 191
In the Marriage of Bevan (1993) 120 FLR 283
In the Marriage of Debs (1978) 34 FLR 1
Lovine v Connor [2011] FamCA 432
Stanford v Stanford [2012] HCA 52
Number of paragraphs: 62 Date of hearing: 29 January 2021 Place: Heard in Dandenong, delivered in Melbourne Advocate for the Applicant: In person Solicitor for the Applicant: None Advocate for the Respondent: In person Solicitor for the Respondent: None ORDERS
DGC 2358 of 2020 BETWEEN: MS CERNA
Applicant
AND: MR GODDARD
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
10 MARCH 2021
THE COURT ORDERS THAT:
Parenting
1.The parties have equal shared parental responsibility for the care, welfare and development of the children:
(a)X born in 2011 ('X'); and
(b)Y born in 2017 (‘Y’) (or collectively referred to as ‘the children’).
2.The children live with the Mother.
3.The children spend time with the Father as follows:
(a)Each alternate weekend from the conclusion of school Friday or 3.30pm if it is a non-school day, until the commencement of school or 8.45am Monday;
(b)Each Wednesday from the conclusion of school, or 9am if it is a non-school day, until the commencement of school or 8.45am on Thursday; and
(c)at any other times as agreed between the parties in writing.
4.Order 3(b) insofar as it concerns Y be suspended for a period of 3 weeks from the date of these orders.
5.Each parent be permitted to communicate with the children by way of telephone or video call when the children are not in their care, at all reasonable times and/or as otherwise agreed between the parties.
6.Unless otherwise agreed or provided in these orders, and where changeover does not occur at school/daycare/kindergarten, changeover is to occur at the Father's residence at the commencement of time and the Mother's residence at the conclusion of time.
7.Both parents shall actively encourage the children to changeover to the other parent's care pursuant to these orders and will ensure the children are prepared and ready for changeover to take place in a timely manner.
8.The children spend equal time with each parent on school holidays for one half of each term school holiday period as agreed, and in default of agreement, with the Father to have the first half in even years and the second half in odd years.
9.The children spend equal time with each parent on the long summer school holidays as agreed and in default of agreement, in fortnightly blocks, save for the Christmas arrangements as set out herein, with the Father to have the first half in even years and the second half in odd years.
10.The children spend time with the parents at Christmas as follows:
(a)In even years, with the Father from 2:00pm on Christmas Eve until 2pm on Boxing Day and with the Mother from 2pm on Boxing Day until 2pm on 28 December;
(b)In odd years, with the Mother from 2pm on Christmas Eve until 2pm on Boxing Day, and with the Father from 2pm Boxing Day until 2pm on 28 December.
11.Unless otherwise agreed, the children spend time for the Easter long weekend as follows:
(a)In even years, with the Father from the conclusion of school or 3.30pm on Easter Thursday until 2:00pm on Easter Saturday, and with the Mother from 2pm Easter Saturday until 2pm on the Tuesday following Easter Monday;
(b)In odd years, with the Mother from the conclusion of school or 3.30pm on Easter Thursday until 2pm on Easter Saturday, and with the Father from 2:00pm Easter Saturday until 2pm on the Tuesday following Easter Monday.
12.If Father's Day falls on a weekend when the children are not already spending time with the Father, the children spend time with the Father from 5:00pm on the Saturday before Father's Day until 5:00pm on Father's Day.
13.If Mother's Day falls on a weekend when the children are not already spending time with the Mother, the children spend time with the Mother from 5:00pm on the Saturday before Mother's Day until 5:00pm on Mother's Day.
14.If the children's and the Father's birthdays ('the birthday') fall on days when the children are not already spending time with the Father, the children spend time with the Father for three hours if the birthday falls on a school day, from after school until 7pm and five hours if the birthday falls on a non-school day from 10am to 3pm.
15.If the children's and the Mother's birthdays ('the birthday') fall on days when the children are not already spending time with the Mother, the children spend time with the Mother for three hours if the birthday falls on a school day, from after school until 7pm and five hours if the birthday falls on a non-school day from 10am to 3pm.
16.Each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven days of such change.
17.Each of the parents, their servants and agents are restrained from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent; and
(b)Discussing financial or property matters, with or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.
18.In the event of illness or emergency the parent with whom the child/children are with, contact the other parent forthwith to inform them.
19.Each parent keep the other informed as to any serious illness, accident, hospitalisation or medical condition with respect to the child/children while they are in that parent's care and keep the other informed of any medication to be taken by the child/children.
20.Either parent is at liberty to attend any medical appointments for the child/children with either party providing at least seven (7) days' notice to the other parent of any appointment of a non-urgent nature.
21.Either parent will forthwith sign any authorities or other documents (if any) as may be required to authorise any doctor or specialist upon whom the child/children attends while in the care of the other parent.
22.The father will make X available to see his psychologist at B Psychology Clinic, Suburb C if X is in his care on that day.
23.X is to continue attending, and is to remain enrolled in, D School.
24.Unless otherwise agreed in writing, the parties do all acts and sign all documents necessary to enrol Y at D School.
25.Each parent is at liberty to attend the child/children's day-care/kindergarten/school/extracurricular activities (as applicable) for the purposes of any function or activity normally attended by parents.
26.Both parents are permitted to liaise directly with the day-care/kindergarten/school/extracurricular activities (as applicable) to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child/children's progress.
27.In the event either parent wishes to take the children on a holiday interstate within Australia then the parent proposing such holiday shall notify the other parent no less than 14 days prior to the departure date of such proposed trip, and shall provide to the other parent at that time particulars including:
(a)the proposed itinerary;
(b)the address of where the children will be staying; and
(c)the proposed period of such trip.
28.In the event either parent wishes to take the children on a holiday out of the Commonwealth of Australia then the parent proposing such holiday shall notify the other parent no less than 60 days prior to the departure date of such proposed trip, and shall provide to the other parent at this time:
(a)Particulars including the proposed itinerary and proposed period of such trip;
(b)At least 10 days before departure, a final itinerary including contact telephone numbers and full street addresses of where the children will be staying;
(c)Copies of return airline tickets and details of flights once booked and irrespectively at least 10 days before departure.
29.Each party be permitted to travel with the children out of the Commonwealth of Australia, provided such period of proposed travel takes place during the time the children are living with that parent pursuant to these orders unless otherwise agreed between the parties in writing via email.
30.That upon the parent giving notice to the other parent of their proposal to travel out of the Commonwealth of Australia in order 28 hereof ('the travelling parent') the non-travelling parent shall release the passport they hold of the child to the travelling parent not less than 14 days prior to the notified date of departure and the travelling parent not less than 14 days prior to the notified date of departure and the travelling parent shall return the passport to the non-travelling parent within 7 days of returning from any travel with the children in accordance with these orders.
Property
31.The Father pay to the Mother the amount of $7,150 immediately on receipt of compensation payments due to him from the City E Class Action ('City E Property Litigation').
32.Paragraphs 34 to 41 of these orders are binding on the trustees of the Respondent Husband's Super Fund F Pty Ltd (ABN ...) ('the Fund').
33.The base amount allocated to the Applicant Wife out of the interest of the Respondent Husband in the fund is $132,527.88 ('the base amount').
34.Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (‘Act’), whenever a splittable payment becomes payable in respect of the interest of the Respondent Husband in the fund, the Applicant Wife is entitled to be paid an amount calculated in accordance with Part 6 Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the Respondent Husband.
35.This order has effect from the operative time and the operative time is four (4) days after service of a sealed copy of these orders.
36.Within 14 days of becoming entitled to receive a superannuation benefit from the fund, the Applicant Wife will give the trustees of the fund:
(a)All such forms as necessary to enable it to determine the nature and quantum of her superannuation entitlement; and
(b)Any other related information it may reasonably require.
37.Until such time as the superannuation split to the Applicant Wife pursuant to these orders can be rolled over into a separate account to the Applicant Wife:
(a)The Respondent Husband will give to the Applicant Wife written notice not less than 28 days before such time as they elect to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part their entitlement in the fund;
(b)The Respondent Husband will direct and authorise the trustee of the fund to communicate with the Applicant Wife and/or any person authorised by them in writing;
(c)To answer any reasonable inquires as may be made by them or on their behalf from time to time regarding their entitlement in the fund;
(d)To give to the Applicant Wife and/or their authorised representative a copy of any notice of any application or request by the Respondent Husband which seeks release of entitlements in the fund in so far as that release may affect the Applicant Wife's entitlement in the fund pursuant to these orders; and
(e)The Respondent Husband, their servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the Applicant Wife, their heirs, executors, administrators or nominees from receiving the benefits in the fund to which they are entitled pursuant to these orders.
38.In the event that the superannuation split to the Applicant Wife pursuant to these orders can be rolled over into a separate account to the Applicant Wife each of the parties will each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
39.There be liberty to each party and the trustee of the fund to apply regarding the implementation of these orders affecting the interests of the Respondent Husband and the Applicant Wife in the fund.
40.Having been afforded procedural fairness in relation to the making of this order, this order binds the trustee of the Fund.
41.The trustee of the Fund in accordance with the obligations set out under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001, shall do all acts and things and sign all documents as may be necessary to make payment to the applicant pursuant to these orders.
42.Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders including but not limited to the Mother retaining:
(i)The Motor Vehicle 1; and
(ii)The household contents at the former matrimonial home.
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
(d)All insurance policies are to become the sole property of the owner as named;
(e)Each party 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;
(f)Any joint tenancy of the parties in any real or personal estate is expressly severed; and
(g)Any payment the parties individually stand to receive with respect to the any settlement relating to the City E Property Litigation as paid directly to that party, subject to order 31 herein.
43.The parties shall each indemnify the other in respect of any credit card or personal debt or other debts in their sole names, howsoever arising or unpaid income tax assessed in their own name, past present and future.
44.In the event that the debt to Centrelink remains payable by the Mother following any appeal, the Father is to pay to the Mother an amount equal to half the amount payable in connection with the Centrelink debt, such amount to be paid within 14 days of the expiry of any further review or appeal period.
45.The parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to these orders.
46.In the event the Mother or Father ('defaulting party') refuses or neglects to comply with any provision of this order:
(a)a Registrar or Deputy Registrar of the Federal Circuit Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders; and
(b)the defaulting party is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this order and providing his/her damages; and
(c)for the purpose of this order, an affidavit setting out the defaulting party's failure to comply with the orders shall be sufficient evidence of neglect and default.
47.The provisions of these orders be binding on the heirs, executors, personal representatives and administrators and assigns for each of the parties.
48.The Mother has liberty to apply in relation to any non-compliance of order 31.
49.All extant applications be dismissed, and all previous orders be discharged.
50.Pursuant to s.65DA(2) of the Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
NOTATION:
A.Pursuant to s.62B of the Act, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
B.Pursuant to section 81 of the Act and in full satisfaction of all claims that either party have or may have had for spousal maintenance and any alteration of property interest to their benefit, and as far as practicable, these Orders shall finally determine the financial relationship between the parties and avoid further proceedings between them.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Cerna & Goddard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for final orders in relation to parenting and property matters, and a claim by the Mother for spousal maintenance.
The Father is currently aged 42 years. The Mother is currently aged 44 years. The Father is currently employed as a Professional in the Employer G. The Mother is engaged in home duties.
The parties commenced living together in 2005. They were married in 2010. Separation occurred in April 2019. An application for divorce was filed on 15 July 2020 and took effect in December 2020.
There are two children of the relationship. They are X born in 2011 ('X') and Y born in 2017 ('Y').
The parties represented themselves at a one-day hearing before me.
THE APPLICATION FOR PARENTING ORDERS
The parties are in agreement that parental responsibility should be shared and that the children should live with the Mother and spend time with the Father.
The parties are also in agreement, inter alia, as to the following:
(a)The time that X should spend with the Father, that time being as follows:
(i)every alternate weekend from the conclusion of school on Friday from 3:30 pm until the commencement of school on Monday, or 8:45 am Monday;
(ii)every Wednesday overnight (though there is a dispute about whether the Father's time should start at 9 am or 3:30 pm on the Wednesday); and
(iii)at any other times as agreed between the parties in writing.
(b)That the children spend half of each school term holiday period and half of each summer holiday period with each parent;
(c)That provision be made for the each parent to spend time with the children on special occasions such as birthdays, Christmas, Easter and the like.
The parties were in dispute as to the following matters:
(a)The Mother sought an order that Y's time with the Father be the same as X's, but that such an arrangement take effect only after the end of Term 2, 2021. In the interim, the Mother sought that Y's time with the Father end every alternative weekend at 5:30 pm on Sunday and that Y spend no time during the week with the Father. The Father opposed this and sought that Y spend the same time with him as X, commencing immediately.
(b)Whether the time that the children spend with the Father during the week should commence at 9 am on a Wednesday or 3:30 pm (or after school) on a Wednesday. The Father sought the 9 am start time as he enjoys a flexible work arrangement and wants to ensure he can spend the day with the children when they are not at school. The Mother opposed this course and insisted that time on a Wednesday should start at 3:30pm, or after school if a school day.
(c)The Mother sought an order that if the Father ultimately ends up living more than 40 minutes away from her residence, that the Father's time with the children on a Wednesday cease, and that time each alternative weekend cease on a Sunday evening, rather than a Monday morning.
In making any parenting orders, the Court is to have regard to what is in the best interests of the children. Section 60CC of the Family Law Act 1975 ('Act') sets out two primary considerations in subsection (2) and a number of additional considerations in subsection (3). Insofar as the primary considerations are concerned, this is not a case in which it is contended there is a need to protect the children from exposure to abuse, neglect or family violence. That accordingly directs focus to the primary consideration of the benefit to the child of having a meaningful relationship with both of the child's parents and the other relevant considerations.
In the present matter, the Mother contended that Y needs a period of time to transition to the spend time arrangements that are applicable to X for reasons that include the following:
(a)First, Y experiences anxiety and a transition period may go some way to alleviating that. The Mother has given some examples of this in her affidavit material;
(b)Second, Y is a young child whose connection at this time is much closer to his mother than his father; and
(c)Third, the Father is sometimes required to work on his non work days and Y is too young to be left alone. The Mother has also deposed to the Father not giving enough attention to Y or seeking to soothe him during transition.
The Father, for his part, says that Y has been withheld from him by the Mother. He says, among other things, that the Mother has sought to undermine Y spending time with him by, for example, not having him ready for changeover.
It is difficult to resolve these competing accounts. Both parties were not represented and there was no cross examination on these matters. On the evidence, therefore, both parties bear some responsibility for Y's failure to transition appropriately, as they have not done enough to aid Y's transition.
A Child Inclusive Conference ('CIC') was conducted on 21 August 2020. The Family Consultant noted at that time the concerns in relation to Y's anxiety when transitioning to the Father. Ultimately, the Family Consultant made the following recommendations:
X and Y to spend time with Mr Goddard each alternative weekend from after school on a Friday or 3.30 pm until school Monday morning or 8.45 am.
X to spend each Wednesday night with Mr Goddard from 3.30 pm until 8.45 am Thursday
Y to spend each Wednesday night with Mr Goddard from 3.30 pm until 8.45 am, Thursday however, this to be suspended for a six to eight week period to allow the parents to work out strategies to support Y in this transition.
Two matters become apparent when regard is had to the above. First, the Family Consultant was supportive of both boys being in the Father's care from the conclusion of school or 3:30 pm on Friday until the commencement of school or 8:45 am on Monday. The Consultant saw no reason why Y's time should end on a Sunday evening. Second, Y's time with the Father every Wednesday was suspended for a reasonably short period to permit the parents to work out strategies to support with the transition. Critically, the Consultant specified a period of suspension of six to eight weeks. That period has long since passed yet Y's time every Wednesday with the Father has not recommenced.
I have little difficulty in finding that Y does experience anxiety or difficulty with transition. That appears to be the universal evidence of both parents and the conclusion of the Family Consultant. It is not immediately apparent to me, nor was it adequately explained by the Mother's evidence, how Y not spending time with his Father reduces his anxiety. I accept that Y not spending time with his Father each Wednesday reduces the number of transitions he faces and thereby his instances of anxiety, however transition is still occurring on the weekends and there seems little doubt Y would have difficulty transitioning then, yet the Mother does not propose that weekend time cease. Further, there is no evidence before me that deferring Y spending time with his Father until the end of Term 2 2021 will reduce his anxiety at changeover (though I accept he will be slightly older at that time, and that may help).
I have considered Y's age, however I am not persuaded that it is a factor that is of such import that it should lead to any significant delay in the Father spending time with Y. The Family Consultant was clearly of the view that it was appropriate for Y to spend time during the week with his Father. Y is now six months older since the completion of the CIC Report.
For the above reasons, I am satisfied that it is in the best interests of the children and in particular Y that they commence spending time with their Father every alternate weekend as proposed by the Father, and every Wednesday night as proposed by the Father. In my view, Y's time with the Father on Wednesday nights should not commence for a further 3 weeks to enable the parties to finalise a strategy to manage his anxiety. It appears that this has not been accomplished, notwithstanding the comments of the CIC report writer. Allowing a further short period may be of some benefit. I have stated that both parents bear some responsibility for the present situation persisting. Both, however, strike me as reasonable, educated people and they should now endeavour to fix the issue quickly. There is not any reason however, why any transition period should extend until the end of Term 2 2021 given the state of the evidence on this issue, and the approach recommended by the Family Consultant.
There is then the issue as to what time the children should commence spending time with their Father each Wednesday. There is no evidence before me on this issue. The Father says he wants to be able to spend additional time with the children on a Wednesday when they are not at school. The Mother simply opposed this without advancing any real basis to her opposition. Ultimately, I have come to the view that the Father's time should commence at 9 am on Wednesday. This will enable him to spend time with the children when they are not at school. It is difficult to conceive how this will have much practical application to X given his age and given the lack of public holidays that fall on a Wednesday. It will make a difference, however, to Y and the time he spends with his father until he reaches school-age. Given the terms of subsection (2)(a) of section 60CC and the lack of evidence from the Mother on this issue, I am content to order that time start at 9 am on a Wednesday.
The final issue concerns the Mother's contention that the Father's time should reduce in the event the Father lives more than 40 minutes away from the Mother's residence. The Mother's submission in this respect appears to be based on comments made by the Family Consultant in the written CIC report, and on her own concerns about the Father apparently spending time with his new partner at her house which is some distance from where he presently resides.
The Father presently resides with his father in Suburb H. During the hearing, the Father was asked about his future living arrangements. He expressed an intention to leave his father's home once the present litigation was settled and to take up accommodation with his new partner. He was unable to say where it was that he might live. While that might be surprising, I accept the Father's evidence that he has not made a decision as to where he will reside in the future. I accept his evidence not only because I regard it as being credibly given from my observation of him in the witness box, but I also accept that the outcome of the property proceedings may well have a bearing on what the Father is able to afford and where he is able to live.
Ultimately, I will not make an order in the terms sought by the Mother that the Father's time be reduced in the event that he lives more than 40 minutes away from the Mother. There is no evidence before me at present as to where the Father will live. Making an order in the terms sought by the Mother would require me to speculate about a number of matters. It would require me to make an assumption that the distance away from the Mother could not be overcome by the Father making other changes to his arrangements, for example, changing his work hours. It would require me to make that assumption without knowing at what date the Father commenced living such a distance away from the Mother. For example, if the Father moved that distance away in five years' time, but not beforehand, the order would have effect, but the children would be older and arguably better able to cope with any distance. It also requires me to assume that the Mother will always remain in the same locality, or that the Father would always have to move to be close to the Mother if she moved.
At the end of the day, orders of this, or any court, must have a basis in evidence. I will not make as a final order any order that reduces the Father's time unilaterally simply because he may move residence, or the Mother may move residence, which results in the Father being more than 40 minutes away from the children.
The Mother raised in her material a concern she has in respect of the children spending with their cousin, J, as a result of a historical incident where it is alleged J showed X pornography. I will not make any order in relation to this. The parties did not identify this as a continuing issue when I asked them. I was not addressed on it. No party was cross examined about it. Further, the children have been spending time with the Father and I can find no order that presently deals with the children coming into contact with J.
There was not otherwise any significant dispute between the parties as to other aspects of the parenting orders and I intend to make parenting orders that appropriately make provision for school holiday and summer holiday time, special occasions and the like. One matter I raised with the parties was Christmas day. I suggested to the parties that it might be beneficial all round if the children spend an entire Christmas day with one party on one year, and then alternated each year thereafter, rather than Christmas day being split, with the parties having to leave Christmas functions early and the like. I intend to make that order.
Having reviewed the parenting orders as a whole, I am satisfied that they are orders that are in the best interests of Y and X.
PROPERTY
Section 79(1) of the Act empowers the Court to make such orders as it considers appropriate in altering the interests of the parties to the marriage. The power of the Court under section 79(1) is a power to be exercised having regard to the subsections that follow, and in particular section 79(2), section 79(4) and consequently, section 75(2).
The provisions set out above have been the subject of extensive consideration by both the High Court of Australia and the Full Court of the Family Court of Australia: see Stanford v Stanford [2012] HCA 52; and Bevan v Bevan [2013] FamCAFC 116. I am required to approach the matter consistently with the principles articulated in these authorities.
When it comes to the assessment of contributions and the approach to be taken, I have had regard to the comments of the Full Court in Dickons v Dickons [2012] FamCAFC 154, especially paragraphs [23] and [24], and Eufrosin v Eufrosin [2014] FamCAFC 191 and Lovine v Connor [2011] FamCA 432.
I am satisfied that in this matter, it is just and equitable to embark upon an exercise of determining how the assets between the parties are to be split. The parties have been separated since 1 April 2019. Divorce occurred in December 2020. The Father is in a new relationship and is expecting a child with his new partner. It is self-evident that the parties are no longer in a relationship and that there will no longer be any common property available for shared use by the parties.
The parties agreed that the asset pool available for distribution was comprised of their superannuation balances, and were in agreement as to the amount contained within the superannuation accounts. The Mother's superannuation balance is currently $112,582.18. The Father's superannuation balance is currently $263,667.75.
The parties have been engaged in litigation as part of a class action relating to compensation they claim arising from a property they jointly owned in City E in the Northern Territory. As best can be ascertained from the brief affidavit material on this point, the soil on the land was contaminated, and litigation was commenced by property owners, including the parties. The details of the litigation are not in evidence before me but the parties produced correspondence from their class action lawyers which indicate that each of them is shortly to be paid compensation in the amount of $26,903.72 each. This is described as an estimated distribution settlement payable to each of them. The correspondence before the Court indicates that the parties were able to seek a review of this distribution prior to 11 December 2020. The parties did not indicate that either of them had sought a review of the proposed distribution. Distribution of this settlement is anticipated to occur in January or February 2021.
There is authority to the effect that money due under a verdict is property of the parties: see In the Marriage of Debs (1978) 34 FLR 1. While the amount to be paid to the parties did not arise as a result of a verdict of a court, it is an amount that is nevertheless payable to them in settlement of litigation. Further, from what can be seen, it appears the amount will be paid to them given that neither has exercised a right of review. Accordingly, I regard it as property available for distribution and I will include the amount of $26,903.72 for each of them in the asset pool.
Documentation was produced to the Court that shows a debt to Centrelink in the amount of $2,490.08. This debt is in the name of the Mother. There is no dispute between the parties that the debt exists currently. The debt is under review, but it is not possible to ascertain whether that review will succeed. I will therefore include this debt in the asset pool.
There were a number of other assets and liabilities contained within the documentation filed by the parties. The parties were in agreement that those matters did not need to be included in the asset pool and that each would retain the relevant assets or liabilities in their name. This includes the debts or loans in the Financial Statements. It also includes the Father's agreement that the Mother retain the parties’ motor vehicle and household chattels.
Having regard to the above matters, I find that the asset pool available for distribution in this matter is as follows:
Assets
Ownership
Value
Settlement funds from City E property litigation
Wife
$26,903.72
Settlement funds from City E property litigation
Husband
$26,903.72
Total Assets (excluding Superannuation)
$53,807.44
Liabilities
Centrelink debt
Wife
$2,490.08
Total Liabilities
$2,490.08
Net Assets (excluding Superannuation)
$51,317.36
Superannuation
Super Fund K
Wife
$112,582.18
Super Fund F
Husband
$263,667.75
Total Super
$376,249.93
Total Assets
$427,567.29
I turn to consider the contributions of the parties. It is clear that at the commencement of the relationship, both parties were in paid employment. It is also the case that both parties shared equally in the domestic chores of the household. I find that during this period of the relationship, both parties made equal contributions.
Matters changed when X was born. The Mother ceased employment and stayed at home to look after X and then, later, Y. The Father continued in his employment. It is apparent from the evidence that he has steadily progressed in his career to the extent that he now holds a senior position in the Employer G and enjoys decent remuneration and other terms of employment. Given the material before me, I find that from the time that X was born the Mother made the vast majority of the contributions as homemaker or parent. I also find that from the time that X was born, the Father made the vast majority of the financial contributions which enabled the parties to purchase and make repayments on a home in City E.
It is to be observed that while the Father made the vast majority of financial contributions to the acquisition of the property in City E, the evidence before the Court is that the property was ultimately sold at a significant loss given the soil contamination to which I have referred earlier. That the property sold at a loss does not appear to be the fault of either of the parties to this litigation. The fact that the parties do not own property of value is on the evidence, related to the issues that occurred in City E. The fact that the parties are entitled to compensation as part of the class action is however, attributable to the fact that the parties did own property in City E for which they are now entitled to receive compensation. This should be recognised as a contribution by the Father, notwithstanding the loss that occurred (through no fault of the parties) when the property was sold.
Post separation, the Father has deposed to making a range of contributions including but not limited to discharge of a joint credit card debt of $12,000 and contributions in lieu of child support. I accept his evidence in relation to these matters. Post separation, it is apparent that the Mother has had primary care of the children. The present arrangement of five nights per fortnight for X has not been a consistent feature and I accept the Mother's evidence that at times she has been responsible for the majority of the care of the children, and that the Father has spent, at times, only three or four nights per fortnight with the children.
When all of the above matters are considered, I find these parties have contributed equally to the marriage. The contributions were clearly equal at the beginning. Upon the birth of X, their roles changed with the Father being primarily responsible for making financial contributions, and the Mother being primarily responsible for the family. That pattern, albeit in a different form, persisted post separation. There is no reason to regard the financial contributions of the Father as having more weight than the non-financial contributions of the Mother, or vice versa. I regard them equally, I give them equal weight, and I find the contributions of the parties to be equal.
I turn now to deal with the factors under section 75(2) of the Act.
The Mother is 44 years of age and the Father is 42 years of age. Both of them are in good health.
The Father holds a senior position at Employer G. His annual salary if working at a full-time equivalent ('FTE') level is $189,577 per annum. The Father currently, however, works 0.8 FTE. Accordingly his annual salary is $151,661.60 per annum.
The Mother asserted that the Father had reduced his hours of work in the lead up to the interim hearing on spousal maintenance. The suggestion was that this was deliberate and that the Father could well increase his hours of work following this hearing. The Father was cross examined about his reasons for working reduced hours and his evidence was that he was giving priority to making time to see his children. I accept that evidence. I do not regard the Father as seeking to reduce any payments to be made to the Mother. Rather, I find the Father genuine in his desire to spend more time, and develop a relationship, with the children. I accept, however, that the Father has a capacity to earn an income that exceeds that of the Mother.
The Mother is a qualified public servant and there is not any suggestion that she does not have capacity for work. The Mother was asked about whether there was anything which prevented her from placing Y into childcare, and commencing to work full-time. She agreed that there was nothing which would prevent her from doing this.
I am satisfied that the Mother could obtain work as a public servant if she chose to do so. I accept that, given her absence from the workforce since the birth of X, that she may have some initial difficulty re-entering the job market. Some adjustment or allowance needs to be made for these matters, but ultimately I am satisfied, not only based on her qualifications, but based on her presentation before me, that the Mother could ultimately find full-time ongoing employment as a public servant.
The parenting orders that I will make will result in the children ultimately spending five nights per fortnight with their Father, and nine nights per fortnight with their Mother. Plainly, the Mother will have the care and control of the children for the majority of the time.
The Father is in a new relationship with a person whom he chose not to identify nor put on affidavit. He is expecting a new child. There is no evidence before the Court as to the amount the Father's new partner presently earns, how much she will earn when she takes maternity leave, and what contribution the Father will need to make towards his new family. In light of these matters, I do not place any weight on the Father having to support his new family unit.
The Father is currently assessed to pay child support in the amount of $392.27 per week according to a document purportedly downloaded from the Child Support Agency on 29 January 2021 or $20,468 per year. He is up-to-date in his child support payments. I accept the child support assessment contained in the document referred to above. It is a document that is later in time when compared to the Father's Financial Statement. That Statement contains a different, lesser, amount.
When all of these matters are weighed up, I find that an adjustment should be made in favour of the Mother on account of the factors under section 75(2). That adjustment should be made having regard to the following. The Mother is slightly older than the Father. She has spent some considerable time out of the workforce. This will not only affect her ability to enter the workforce for a period, but it will also affect her ability to progress her career. She is unlikely to make up for lost career opportunities given she will continue to have primary care of the children. Further, the Father has a greater income earning capacity which the Mother will not be able to match. The adjustment should be 15% of the net asset pool including superannuation. In reaching that figure, I have taken into account and give weight to those factors that favour the Father, namely, his regular payment of child support and the fact that the Mother has the capacity to earn a reasonable income as a public servant.
In summary, the orders I would make are as follows:
(a)The parties will each retain their settlement proceeds from the City E property litigation save for an amount of $7,150 which the Father is to pay to the Mother on receipt of his compensation payment. I have determined that the Mother should receive a cash payment given her immediate needs will not be satisfied by a split only of the superannuation;
(b)The parties be equally responsible for the Centrelink debt in the event it becomes payable, with the Father to pay to the Mother at that time an amount equal to half the total amount payable in connection with the Centrelink debt;
(c)There will be a superannuation splitting order from the father's superannuation to the mother's superannuation in the amount of $132,527.88; and
(d)The parties will each retain all other assets in their sole name and indemnify each other in relation to all liabilities in their sole name.
In making the orders above, I am conscious that the Centrelink debt remains in the Mother's name. The Mother was content for that to be the case. As I understand it from the parties, they are appealing the debt amount and the appeal can only remain on foot if it remains in the Mother's name. The Mother sought an order that if the appeal in respect of the debt failed, the debt should be transferred to or paid by the Father.
I have declined to make the order sought by the Mother. It is clear from the evidence given that both parties used the Centrelink funds for ordinary living expenses. Neither party was able to adequately explain how the application to Centrelink was made and who completed it. There is a factual dispute between the parties as to whether the debt may actually be owed with the Husband asserting that no debt will actually be found. It is not possible to resolve these various issues given the paucity of the evidence. The debt is not a significant amount. I have simply taken the approach of including the debt in the pool, and requiring each party to pay 50% of it in the event it becomes payable.
SPOUSAL MAINTENANCE
Section 72 of the Act sets out the right of a spouse to maintenance. Section 74 of the Act then sets out the power of the Court in spousal maintenance proceedings. Relevantly to this application, section 74(1) of the Act permits the Court to 'make such order as it considers proper for the provision of maintenance in accordance with this Part'. Further, as is apparent from the terms of section 72, the Court is required to take into account the matters set out in section 75(2) of the Act. Finally, in In the Marriage of Bevan (1993) 120 FLR 283, the Full Court of the Family Court of Australia summarised the principles to apply when dealing with applications for spousal maintenance.
In the present matter, the Mother seeks payment of $350 per week spousal maintenance for a period of around 2 years (a total of approximately $36,400 over a two year period). The Father comes to Court indicating a preparedness to pay $200 per week in spousal maintenance for a 12 month period (a total of approximately $10,400 over a 12 month period). Implicit in that position is that he accepts he is in a position to provide maintenance. That is a finding I would readily make given the Father's income and his explanation of his expenses contained in his affidavit and Financial Statement.
The Mother currently receives a weekly income of $1,368.42. This is comprised of the following: $350 per week interim spousal maintenance, $397 per week of child support $546.42 as a Family Tax benefit and has single parent pension, and the COVID supplement of $75 per week which is presently due to expire in March 2021. Given the terms of section 75(3) of the Act, I am not to take the Family Tax Benefit and single parent pension into.
The Mother claims that her weekly expenses are comprised of the following: $490 per week rent, insurance and registration payments of approximately $35.71 and $1200 in weekly expenses in Part N of her Financial Statement. Accordingly, her total claimed expenditure is $1,725.71.
A feature of this case was that both parties were unrepresented. That means neither the Father nor the Mother were cross-examined about their claimed expenses. Had effective cross examination taken place, the Father may have struggled to explain some of his claimed expenses, including the $300 per week rent that he pays to his father while living at his father's home (for which no supporting documents were produced), the $200 per week for food, the $50 per week for clothing and shoes, the $75 per week for holidays and $150 per week for repairs and furnishings. Had effective cross examination occurred, the Mother may have struggled to explain some of the estimates she included in Part N, for example, $350 per week on food, $100 per week on petrol, $50 per week on clothing and shoes, $10 per week child minding (in circumstances where she is the full-time care of the children), $50 per week on entertainment hobbies and $30 per week on gifts. I therefore have serious doubts that the Father could not afford $350 per week in spousal maintenance as claimed. I also have serious doubts that the Mother's expenses are as they are claimed.
The matters that I am required to consider in assessing an application for spousal maintenance under section 75(2) of the Act are the same matters that I am required to take account of when assessing an adjustment of property interests under section 75(2). Further, section 75(2)(n) requires me to expressly take into account the terms of any order made in relation to property. Finally, section 81 of the Act requires the Court to 'make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them'.
I have earlier in these reasons made orders dealing with the property interests of the parties. In those orders I have provided that the Mother receive 65% of the asset pool, and that she receive an amount of $7,150 from the Father’s City E compensation payment. In making those orders, I have already made an adjustment in favour of the Mother on account of the factors set out in section 75(2) of the Act. To undertake another review of those factors is not necessary. Further, by providing that that the Mother receive an amount of $7,150 from the City E Litigation fund instead of receiving that amount as part of a superannuation split, I have contemplated that such funds would be available to the Mother for her immediate use in order to adjust to her new circumstances.
For the above reasons, I will not make a separate order that the Mother receive spousal maintenance. She has already received an adjustment of property which takes into account her future needs.
Upon careful review and consideration of these reasons and orders, in my view, they represent a just and equitable division of property between the parties. The Mother receives a division of the property that is favourable to her and takes into account her future needs. She receives a cash payment to enable her transition to work. The Father retains some of the City E compensation payment to enable him to now begin the search for his new accommodation, and is relieved from the making of continued periodic maintenance payments, which will finalise the matters and litigation between these parties.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 10 March 2021
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