CLIMO & PECORA
[2020] FCCA 2644
•2 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLIMO & PECORA | [2020] FCCA 2644 |
| Catchwords: FAMILY LAW – Final hearing – property – where wife made greater contributions – where factors under section 79(4)(e) fall in favour of an adjustment to the wife – where it is just and equitable to alter interests of parties’ in their property. FAMILY LAW – Final hearing – contravention – where wife asserts contravention of a notation. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 64D, 65D, 65DAA, 65DAB, 65Y, 68B, 70NAC, 75, 79, 117 |
| Cases cited: Chapman v Palmer [1978] FamCA 86 A & A & The Child Representative [1998] FamCA 25 M & M (1998) 166 CLR 69 |
| Applicant: | MS CLIMO |
| Respondent: | MR PECORA |
| File Number: | SYC 825 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 6 September 2019 |
| Date of Last Submission: | 6 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2020 |
REPRESENTATION
The Applicant appeared on her own behalf.
| Counsel for the Respondent: | Mr O'Reilly |
| Solicitors for the Respondent: | Vizzone Ruggero Twigg Lawyers |
ORDERS
THE COURT ORDERS:
That all previous parenting orders and notations relating to the child X born in 2014 are dismissed.
That the parties have equal shared parental responsibility for the child X born in 2014 (“the child”).
That the child live with his mother.
That the child spend time with his father as follows:
(a)during school term time:
(i)in Week 1 from the end of school (or 3.00 pm if not a school day) on Friday until the start of school (or 9.00 am if not a school day) on Tuesday, the first such occasion to commence on the Friday following the making of these orders;
(ii)in Week 2 from the end of school (or 3.00 pm if not a school day) on Monday until the start of school (or 9.00 am if not a school day) on Tuesday, the first such occasion to commence on the Monday second after the making of these orders; and
(iii)each Wednesday from 8.00 am until the start of school.
(b)during each school holidays:
(i)for the first half of school holidays that commence in an odd numbered year; and
(ii)for the second half of school holidays that commence in an even numbered year; and
(iii)for this purpose school holidays commence at the end of the child’s school attendance for each school term and finish at the start of the child’s school attendance for the new term, with the mid-point being as agreed between the parties and failing agreement at 6.00 pm on the second Saturday of Term holidays that are two weeks long and at 6.00 pm on the middle day of school holidays that are more than two weeks long.
(c)on the child’s birthday, if not otherwise in the father’s care at these times, from after school until 7.00pm if on a day the child is at school, or from 10.00 am until 4.00 pm if not a day that the child is at school.
(d)on the Father’s day weekend from 5.00 pm on Saturday until the start of school on Monday.
(e)on the father’s birthday, from the end of school until the start of school the next day, or 9.00 am if the next day is a Saturday, or from 10.00 am until 7.00 pm if the child is not at school.
(f)from 6.00 pm on 24 December until 2.00 pm on 25 December in odd numbered years and from 2.00 pm on 25 December until 6.00 pm on 26 December in even numbered years.
(g)from 2.00 pm on Easter Sunday until 5.00 pm on Easter Monday in even numbered years and from 9.00 am on Easter Saturday until 2.00 pm on Easter Sunday in odd numbered years.
(h)At such other times as may be agreed between the parties from time to time.
That notwithstanding any other order the child shall be in his mother’s care:
(a)on the child’s birthday, if not otherwise in the mother’s care at these times, from after school until 7.00pm if on a day the child is at school, or from 10.00 am until 4.00 pm if not a day that the child is at school.
(b)on the Mother’s day weekend from 5.00 pm on Saturday until the start of school on Monday.
(c)on the mother’s birthday, from the end of school until the start of school the next day, or 9.00 am if the next day is a Saturday, or from 10.00 am until 7.00 pm if not a day on which the child is at school.
(d)from 6.00 pm on 24 December until 2.00 pm on 25 December in even numbered years and from 2.00 pm on 25 December until 6.00 pm on 26 December in odd numbered years.
(e)from 2.00 pm on Easter Sunday until 5.00 pm on Easter Monday in odd numbered years and from 9.00 am on Easter Saturday until 2.00 pm on Easter Sunday in even numbered years.
That changeovers at the start of the child’s time with the father on Wednesdays during school terms will occur at the entrance to Location J near the mother’s place of residence.
That changeovers other than at the start of the child’s time with his father on Wednesdays not occurring at the child’s school shall occur as agreed between the parties from time to time and failing agreement for any occasion shall occur at Cafe B at C Park at Suburb D.
That when the child is in the other parent’s care during school holidays the parent without care of the child shall have telephone or audio/video communication with the child each Friday and Monday at some time between 7.00 pm and 7.30 pm.
That pursuant to section 65Y of the Family Law Act 1975 (Cth) each parent may take the child outside the Commonwealth of Australia for the purpose of a holiday on condition that:
(a)the travelling parent provides notice to the other parent no less than one month prior to departure of their intention to travel with the child outside the Commonwealth of Australia;
(b)the travelling parent provides to the other parent no less than fourteen days prior to departure a copy of the child’s return travel ticket, an itinerary detailing all flight or cruise details including but not limited to departure and arrival times and details of all addresses where the child will be staying and telephone contact details for the child available to the child throughout the trip;
(c)the child may not travel to a country that is not a convention country under regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) in relation to the Hague Convention on the Civil Aspects of International Child Abduction, without the consent of the other parent having first been obtained as required by section 65Y of the Family Law Act 1975 (Cth) and regulation 13 of the Family Law Regulations 1984; and
(d)the time of the travel shall occur during the travelling parent’s time with the child pursuant to these orders unless agreed otherwise between the parents in writing.
That the mother shall retain possession of the child’s passport and shall provide the passport to the father immediately he has complied with order 9(b) and the father shall return possession of the passport to the mother within 3 days of the child’s return to the Commonwealth of Australia.
That the father shall not take the child on a holiday to Italy more than once each alternate year.
That the mother is restrained from altering the child’s religion from the Roman Catholic faith HOWEVER the mother shall nevertheless be entitled to have the child accompany her to religious services of other Christian denominations.
That in the event that the child becomes ill or is the subject of a medical emergency the parent with care of the child at that time shall inform the other parent as soon as practicable.
That each of the parties shall keep the other party informed immediately of any change to their residential address, mobile telephone number, residential telephone number (if existing), workplace telephone number and email address.
That each of the parties is restrained from making any comment that is critical, insulting or derogatory about the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of the child.
That each of the parents is restrained from allowing the child to remain in the presence of or within the child’s hearing of any other person who is making any comment that is critical, insulting or derogatory about the other parent, any member of the other parent’s family or any member of the other parent’s household.
That each of the parties is restrained from:
(a)discussing these proceedings with the child;
(b)showing to or allowing the child to have access to any document relating to these proceedings;
(c)interrogating the child about events or conversations in the other party’s household; and
(d)physically disciplining the child or allowing or instructing any other person to physically discipline the child.
The Court orders pursuant to Section 79 of the Family Law Act 1975 (Cth):
(a)That within three months from the date of this order the wife pay to the husband the sum of $127,785.00.
(b)That simultaneously with payment by the wife to the husband of the sum referred to in paragraph (a) hereof:
(i)The husband sign all documents and instruments and do all things necessary to transfer to the wife the whole of his right title and interest in the former matrimonial home property at E Street, Suburb F in the State of New South Wales being the whole of the land in Certificate of Title Folio Identifier ... (“the property”); and
(ii)Simultaneously with such payment the wife shall be solely responsible as between the wife and the husband for all outgoings payable in relation to the property and the wife shall indemnify and keep indemnified the husband in relation to all and any such payments; and
(iii)Further simultaneously with such payment the wife shall do all things necessary to repay the loan account in the joint names of the parties with the Australia and New Zealand Banking Group Limited secured by the mortgage currently registered over the property being registered dealing number ... (“the mortgage”) so as to release the husband from all and any liability in relation to that loan account; and
(iv)The parties shall each do all things necessary to obtain a Discharge of Mortgage in relation to the mortgage; and
(v)The husband shall do all things necessary to obtain a Withdrawal of Caveat in relation to the Caveat registered dealing number ... registered on title to the property by his solicitors in these proceedings.
(c)That in the event that the wife does not pay to the husband the sum referred to in paragraph (a) herein within three months from the date of this order or that the wife fails to comply with the requirements of paragraph (b)(iii) herein within three months from the date of this order then the parties shall sign all documents and instruments and do all things necessary to list for sale the property at a listing price agreed upon between them with a real estate agent agreed upon between them and shall proceed to a sale of the property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:-
(i)In adjustment of rates on settlement;
(ii)In payment of agent’s commission (if any) on sale;
(iii)In payment of legal and all other proper costs of sale;
(iv)In payment to the Australia and New Zealand Banking Group Limited of a sum sufficient to discharge the mortgage ;
(v)In payment to the husband of the sum of $127,785.00 together with any interest payable thereon pursuant to the terms of the Family Law Act 1975 (Cth);
(vi)In payment of the balance to the wife.
(d)That in the event that paragraph (c) operates and the property does not sell by private sale within six months from the date of this order then the parties shall sign all documents and instruments and do all things necessary to list the property for sale by public auction with an auction agent agreed upon between them at a reserve price agreed upon between them and shall proceed to a sale at a sale price agreed upon between them and the parties shall be equally responsible for all costs and expenses of the auction payable prior to the auction sale and following such sale the proceeds of sale be applied as provided in paragraph (c) hereof.
(e)That in the event that paragraph (d) operates and the property does not sell by public auction in accordance with paragraph (d) hereof then the property shall be resubmitted for sale by private treaty in accordance with the provisions of paragraph (c) hereof and the property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in paragraph (c) hereof.
(f)That in the event that the parties are unable to reach agreement in relation to an auction agent, a real estate agent, a listing price, a reserve price or a sale price whether for a sale by public auction or by private treaty then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of New South Wales or his nominee to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be equally responsible for the costs and expenses of the President or his nominee in making such determination.
(g)That within 28 days the parties shall each do all things necessary to close the bank account in their joint names with the Commonwealth Bank of Australia ending in ...45 and pay the credit balance received on such closure to the wife.
(h)That the wife shall be solely liable as between the husband and the wife for payment of any outstanding liability relating to employer’s compulsory superannuation payments arising from the parties’ conduct, themselves or through any corporate vehicle, of the G Group business.
(i)That the wife is the sole owner in law and in equity as between herself and the husband of all items of real property, personal property and financial assets, including superannuation entitlements, currently in her power, possession or control other than as specifically dealt with elsewhere in this order.
(j)That the husband is the sole owner in law and in equity as between himself and the wife of all items of real property, personal property and financial assets, including superannuation entitlements, currently in his power, possession or control other than as specifically dealt with elsewhere in this order.
That in the event that either party refuses or neglects to comply with any part of this order in relation to the execution of any deed, instrument or document the court appoints and authorises the Registrars of the Federal Circuit Court of Australia, Sydney Registry, to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.
IT IS NOTED that publication of this judgment under the pseudonym Climo & Pecora is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 825 of 2017
| MS CLIMO |
Applicant
And
| MR PECORA |
Respondent
REASONS FOR JUDGMENT
Introduction
These are property settlement and parenting proceedings between the applicant, Ms Climo (‘the wife’) and the respondent, Mr Pecora (‘the husband’) under the relevant sections of the Family Law Act 1975 (Cth) (‘the Act’).
The parenting issues concern the parties’ only child of their relationship, X, born in 2014. X was five years and five months of age at the time of the hearing.
The wife also has a daughter from a previous relationship, H, born in 2005.
The final hearing took place from 3 to 6 September 2019 and judgment was reserved. These reasons for judgment have been too long delayed and I apologise to X, to the parties, and to the parties’ legal representatives for that delay.
The proceedings prior to hearing
The proceedings were commenced by the wife filing an Initiating Application seeking interim and final parenting orders, including a recovery order, on 10 February 2017. The husband filed his Response seeking final parenting and property orders, and interim parenting and property orders on 16 February 2017. The wife filed an Amended Initiating Application addressing interim and final parenting and property matters on 4 April 2017.
The matter came before the Court on 10 occasions (not counting the conciliation conference) before the final hearing.
On the first return date on 17 February 2017, orders were made by consent between the parties for X to live with the wife and spend time with the husband:
a)Each alternate weekend from 9.00AM on Sunday until 2.00PM on Tuesday;
b)Each alternate other week from 9.00AM on Monday until 2.00PM on Tuesday; and
c)Each Thursday from 9.00AM until 2.00PM.
Further orders were made on that date including:
a)That at the start of the husband’s time, he collect X from the wife and at the end of his time, X be collected by the wife or the maternal grandparent;
b)That both parties have reasonable telephone or Facetime communication with the child;
c)Time on Father’s Day and Mother’s Day with each parent respectively;
d)For the exchange of information about any medical matters affecting X;
e)Injunctive relief by way of what is commonly referred to as a non-derogation order; and
f)A restraint on any physical discipline of X.
The wife’s Initiating Application had sought interim relief by way of a recovery order. To that end, an order was made that X be returned to the wife by the husband on the day following the first mention, at 8.30AM.
On 24 April 2017, orders were made by consent in relation to a sale of the parties’ business known as ‘G Group’ and in relation to the application of the proceeds of sale, including release of $10,000 to the solicitors for each of the parties, the balance remaining to be held upon trust for the parties by the wife’s solicitors.
On 1 June 2017, his Honour Judge Harper (as his Honour then was) conducted an interim hearing on the question of whether or not the husband could take X overseas to Italy for a holiday. His Honour delivered judgment on 5 July 2017, refusing the husband leave to have the child travel outside of Australia and noting that the child remained on the airport watch list. No specific airport watch list order had been made in the proceedings but it appears that on filing his Response, the husband had made the usual request for inclusion of X on the airport watch list on the basis of that application.
On 4 May 2018, the matter came before his Honour Judge McGuire and further orders were made, by consent, that:
a)The sum of $1,000 be released to each of the parties from the proceeds of sale of the business;
b)$500 be paid towards an outstanding telephone account with Optus; and
c)The balance of the proceeds of sale be applied toward an outstanding superannuation debt accrued by G Group.
On 13 May 2019, further interim parenting orders were made discharging the previous orders relating to the time to be spent between X and the husband and providing for such time:
a)In week one, from 1.00PM Saturday until start of school on Monday and from 8.00AM until the start of school on Wednesday;
b)In week two, from after school on Monday until the start of school on Tuesday and from 8.00AM until the start of school on Wednesday;
c)From 6.00PM on 24 December, until 2.00PM on 25 December in odd numbered years and from 2.00PM on 25 December, until 6.00PM on 26 December in even numbered years;
d)The husband attend at X’s school only on mornings that he is delivering X to school;
e)On Father’s Day from 8.00AM until the start of school the following day;
f)With the parent in whose care he was not on the occasion of his birthday, from after school until 7.00PM, if a school day, and from 10.00AM until 4.00PM, if not a school day;
g)With each of his parents on their respective birthday if not otherwise in their care; and
h)Changeovers that did not occur at X’s school were ordered to occur outside the “Location J” (a location near to the wife’s place of residence).
The interim orders also provided, on their literal terms, for X to spend time with the husband during the first half of school holidays commencing in odd numbered years and with the wife for the second half of school holidays commencing in even numbered years. The literal effect of this was that X was to spend time with the husband only in the first half of school holidays that commenced in odd numbered years and for no time at all during even numbered years. The error in the wording of this order was corrected subsequent to the final hearing.
A notation was included with the orders made by consent on 13 May 2019, forming part of the minute of consent order tendered to the Court by the parties. The notation read as follows:
The Court notes that in relation to order (3) [the school holiday time order] and during school holiday periods, the [husband] has no objection to the child’s holiday time being in conjunction with the holiday time spent with his half-sister H, provided that the [husband] is provided with no less than 21 days written notice, by the [wife], of the time that has been arranged in respect of H’s time with the [wife].[1]
[1] Orders made on 13 May 2019, Minute of Order, notation [A].
The interim orders made by consent on 13 May 2019 remained in force at the time of the final hearing and thereafter.
The materials relied upon
The following materials were relied upon by the wife:
a)Amended Initiating Application filed 4 April 2017;
b)By leave granted 3 September 2019, the wife’s affidavit sworn or affirmed 3 April 2017 and filed 4 April 2017;
c)The wife’s affidavit sworn 24 August 2019 and filed 25 August 2019;
d)Financial Statement of the wife sworn or affirmed 30 April 2019 and filed that day; and
e)The wife’s case outline document that also contained the wife’s minute of orders sought.
The wife also relied upon the following documents admitted into evidence and marked as exhibits:
a)Exhibit A1, being a print of an email from the wife to the husband dated 16 November 2019;
b)Exhibit A2, being a six-page document on the heading of the Department of Immigration and Border Protection dated 9 February 2019;
c)Exhibit A3, being an email chain commencing 25 August 2019 at 10.32PM and ending on 28 August 2019 at 3.59PM between the wife and the solicitors for the husband;
d)Exhibit A4, being an email dated 9 October 2017 from K Families to the wife notifying her that the husband had withdrawn from stage two of the Keeping Children program, and as a result K Families were unable to proceed with the program;
e)Exhibit A5, being a print from the G Group Facebook page in relation to a notification dated 13 January 2015;
f)Exhibit A6, being correspondence between the parties’ solicitors dated 19 April 2017 and 21 April 2017 relating to the sale of the business;
g)Exhibit A7, being a trust account statement from L Law Firm for M Pty Ltd, dated 7 June 2017 in relation to the sale of the business;
h)Exhibit A8, being a Commonwealth Bank of Australia statement of account, for an account in the name of M Pty Ltd trading as G Group, for the period 15 February to 22 March 2013;
i)Exhibit A9, being a copy of a mortgage document dated 23 April 2019 between Mr N, as mortgagor, and the wife, as mortgagee, securing a loan in the sum of $100,000 lent by the wife to Mr N on the security of O Street, Suburb D for a three-month term between 24 April and 24 July 2019 at an interest rate of $2,000 per month;
j)Exhibit A10, being a Commonwealth Bank of Australia account statement for home loan account in the name of the wife, dated 28 August 2019, showing a debit balance of $216,038.60;
k)Exhibit A11, being a print over two pages of an email from the wife to the husband, dated 21 January 2017, in relation to a sale by the wife of a Motor Vehicle 2, owned by M Pty Ltd, in order “to reduce debts” and offering the husband the opportunity to take over the business on his own;
l)Exhibit A12, being a letter dated 3 November 2014 from Q Insurance to the husband in relation to an insurance claim;
m)Exhibit A13, being a print over three pages of SMS messages exchanged between the husband and the wife – undated – relating to the husband being near X’s school on an occasion approaching Father’s Day.
n)Exhibit A14, being an affidavit by Mr R, registered property valuer, sworn 23 August 2019 and annexing a valuation of the property at E Street, Suburb F (‘the E Street, Suburb F property”) as at 21 August 2019;
o)Exhibit A15, being a letter dated 13 January 2014 addressed “To whom it may concern” from Ms U, the wife’s mother, asserting that the wife was living with her at an address in Suburb V and not paying any rent or utility bills;
p)Exhibit A16, being an ASIC search of W Pty Ltd which is a business name registered in 2004 and cancelled in 2007;
q)Exhibit A17, being a copy of the undated front page of a contract pursuant to which a vendor W Pty Ltd as trustee of the Climo Family Trust” sold to a purchaser Y Pty Ltd for $75,000 and including “all goodwill”;
r)Exhibit A18, being a Commonwealth Bank of Australia “authority for business account” for an account in the name of M Pty Ltd trading as G Group with both the husband and the wife as authorised signatories as at 24 February 2013.
s)Exhibit A19, being a Commonwealth Bank of Australia “authority for business account” form, dated 18 November 2016, for two accounts in the name of M Pty Ltd trading as G Group with only the wife as the authorised signatory;
t)Exhibit A20, being Commonwealth Bank of Australia statements for a “business transaction account” for M Pty Ltd trading as G Group, being statements 11 through to 14 inclusive, for the period 1 December 2013 to 31 March 2014;
u)Exhibit A21, which is ANZ Bank Limited statements for a residential investment loan, being statement number one of an account in the parties’ joint names for the period 28 April 2015 to June 2015 – the account closed on 2 June 2015;
v)Exhibit A22, being Z Bank statements for a offset account ...87 in the wife’s sole name. The statements cover the period from 4 August 2013 to 18 December 2013;
w)Exhibit A23, being Commonwealth Bank of Australia Limited statements for a Smart Access account in the wife’s sole name, account number ...34, for the period from 1 March 2014 to 28 May 2014; and
x)Exhibit A24, being a Certificate from K Families confirming the wife’s attendance at the course “Talking with your Kids” on 6 March 2017.
The husband relied upon the following material:
a)Amended Response to Initiating Application filed 30 March 2017;
b)Affidavit of the husband sworn 21 August and filed 22 August 2019;
c)Amended Financial Statement of the husband sworn or affirmed 28 August 2019 and filed 29 August 2019;
d)Affidavit of Mr AA, registered valuer, sworn 3 September 2019 and filed in Court on 5 September 2019 and annexing a valuation report of the property at BB Street, Town CC NSW (‘the BB Street, Town CC property”). The text of the affidavit is in error in paragraph 10 in that it asserts that the valuation is in relation to only “the attached storage shed located on the premises at BB Street, Town CC”, whereas the valuation is clearly in relation to the whole of those premises. At the hearing, the parties were in agreement as to the value of that BB Street, Town CC property, such agreement being in accordance with the opinion in the valuation report attached to Mr AA’s affidavits; and
e)A Case Outline document prepared by Mr O’Reilly of counsel for the husband and including a minute of the orders sought by him.
The husband also relied upon the following documents admitted into evidence and marked as exhibits:
a)Exhibit R1, being an Infotrack search of DD Pty Ltd;
b)Exhibit R2, being a print of a chain of emails in relation to a booking at the G Group in April 2016 for “lunch 24 April”;
c)Exhibit R3, being ANZ Bank Limited statements of account for an account in the joint names of the parties number ...31 for the period 6 to 27 July 2016;
d)Exhibit R4, being Commonwealth Bank of Australia statements for an Everyday Offset account, account number ...40, in the wife’s sole name. It is statement nine covering the period from 1 February until 31 July 2016;
e)Exhibit R5, being a print of an email chain in relation to bookings at the G Group on 26 and 27 October 2016;
f)Exhibit R6, being a print of an email chain in relation to bookings at the G Group between 12 and 15 November 2016;
g)Exhibit R7, being the husband’s urine analysis test results for 24 and 27 August 2019 and 2 September 2019, confirming chain of custody under the Australian/New Zealand Standard 4308;
h)Exhibit R8, being a print of some SMS message exchanges between the parties in both English and Italian in relation to taking X to sports on Mondays;
i)Exhibit R8A, being a print of the wife’s Facebook page posts during the period January to February 2017 when X was retained by the husband;
j)Exhibit R9, being a joint letter of instructions dated 3 September 2019 to EE Valuations in relation to valuing the E Street, Suburb F property;
k)Exhibit R10, being a property valuation dated 6 September 2019 prepared by Mr FF for the E Street, Suburb F property. The wife sought leave to rely on Mr FF’s evidence;
l)Exhibit R11, being a “visa entitlement verification online” from the Department of Home Affairs confirming the husband’s status as a permanent resident visa holder in 2017;
m)Exhibit R12, being a sales notice/invoice from GG Cars of Suburb HH for sale of a Motor Vehicle 3 for $23,500 on 22 August 2019;
n)Exhibit R13; being the husband’s final proposed minute of orders tendered at the commencement of submissions for the husband;
o)Exhibit R14, being a Notice to Produce directed to the wife and dated 27 August 2019;
p)Exhibit R15; being a joint balance sheet indicating assets, liabilities, and superannuation entitlements with agreed values and disputed values.
Each of the parties was cross-examined. Neither party called any supporting witness.
The husband sought to rely on exhibit R10, a valuation prepared by Mr FF dated 6 September 2019 (the last date of the hearing) for the E Street, Suburb F property. Mr FF is the “Joint Single Expert”, pursuant to an order made by consent on 10 October 2017 in the proceedings. The valuation was not a part of an affidavit by Mr FF, but it was conceded by the wife in the course of the hearing that Mr FF was the said “Joint Court Expert” for valuation of the E Street, Suburb F property. The order was not for the appointment of a court expert under rule 15.09 of the Federal Circuit Court Rules 2001 (Cth) (‘the FCC Rules’), but, being described in the relevant consent order of 10 October 2017 as “Joint Single Expert”, was a single expert witness appointed under rule 15.45 of the Family Law Rules 2004 (Wender & Wender [2017] FamCAFC 48).
The wife sought to rely upon a valuation prepared by Mr R, forming part of Mr R’s affidavit, being exhibit A14, in relation to the E Street, Suburb F property.
Based upon the valuations relied upon by each, the wife contended that the E Street, Suburb F property was valued for the purpose of the final hearing at $1,350,000. The husband contended that it was valued for the purpose of the final hearing at $1,275,000, a difference of $75,000. Neither expert was called to give evidence. No evidence was presented, or indeed any submission made, that either party had required the other party’s valuer for the purpose of cross-examination.
The wife tendered the affidavit of Mr R into evidence on the final day of the hearing in the afternoon and just before commencement of oral submissions. Mr O’Reilly tendered the valuation report, by Mr FF, as exhibit R10, a few minutes later. The evidence of each of the experts is untested and the issue of the value to be ascribed to the E Street, Suburb F property for the purpose of the decision will be resolved later in these Reasons in the course of making findings as to the composition, and value of, the matrimonial asset pool.
The orders sought
The orders sought by each of the parties, as set out in their respective minutes of order, are lengthy – the wife’s being 10 pages in length, the husband’s being 11 pages in length. I set out in these Reasons a simplified summary of the orders sought by the parties.
Final orders sought by the wife in relation to parenting issues are summarised as follows:
a)That the wife have sole parental responsibility for X;
b)That the wife consult the husband in relation to any parental responsibility issues and have regard to the husband’s input when making decisions;
c)That X live with the wife;
d)That X spend time with the husband as follows;
i)In week one, either from 1.00PM on Saturday until start of school on Tuesday, or, from 3.00PM Friday until start of school on Monday, and from 8.00AM until start of school on Wednesday;
ii)In week two, from after school Monday until start of school Tuesday and from 8.00AM until start of school on Wednesday;
iii)From 6.00PM on 24 December to 2.00PM on 25 December in odd numbered years, and from 2.00PM on 25 December to 6.00PM on 26 December in even numbered years;
iv)From 12.00PM on Good Friday until 12.00PM on Easter Monday in even numbered years, with X to be with the wife from 12.00PM on Good Friday until 12.00PM on Easter Monday in odd numbered years;
v)From 12.00PM on 31 December, until 12.00PM on 2 January commencing in odd numbered years and for X to be with the wife from 12:00PM on 31 December till 12:00PM 2 January commencing in even numbered years;
vi)For the school holidays at the end of terms 1, 2, and 3 for the first half of school holidays in odd numbered years, and for the second half of those school holidays in even numbered years. For the purpose of the orders the holidays commence at 5.00PM on the last day of school attendance and end at 5.00PM on the day before X returns to school attendance, the mid-point being 6.00PM on the day closest to the mid-point of the holiday period, the husband to collect X from the wife’s home at the start of his time and the wife to collect X from the husband’s home at the end of his time;
vii)During the Christmas school holidays at the end of term 4, the parents have equal shared time broken into a maximum of 10 consecutive days for each period, the dates to be discussed and agreed eight weeks prior and if no agreement is reached X be with the husband for the first 10 days in odd numbered years and for the last 10 days of the school holidays in even numbered years. The wife is to have X with her for the first 10 days in even numbered years and for the final 10 days of the holidays in odd numbered years, and the time between those periods to be split equally between the parties at the mid-point with changeover at 5.00PM to take place at the Location J unless otherwise agreed between the parties;
e)That the husband only attend at X’s school on mornings when he is delivering X to school;
f)That the husband may attend for special school events for X as agreed between the parties from time to time;
g)On X’s birthday, the parent who does not have X in his or her care will spend time with him from after school till 7.00PM, if a school day, and from 10.00AM until 4.00PM if not a school day;
h)On Father’s Day, the husband to spend time with X from 8.00AM on the Sunday until the start of school on the Monday;
i)On the husband’s birthday, X is to spend time with the husband if a school day from the end of school until the start of school the next day (or 9.00AM if the next day is a Saturday) or from 10.00AM until 7.00PM if a non-school day;
j)On the wife’s birthday, X is to be with her from the end of school until the start of school the next day (or 9.00AM if the next day is a Saturday) if occurring on a school day, and from 10.00AMuntil 7.00PM if not a school day;
k)X is to be with the wife on H’s birthday from 9.00AM on her birthday until 9.00AM the next day if occurring on a non-school day or from 3.00PM until 9.00AM the next day if occurring on a school day;
l)The parent who does not have care of X at the applicable time is to have telephone or video communication with him at 7.00PM on Friday and Monday;
m)That X’s name be changed from X Pecora to X Pecora-Climo and that both parties do all things necessary to have that change of name recorded at the NSW Registry of Births, Deaths and Marriages;
n)That all changes not occurring at X’s school occur by the husband collecting X from the entrance to the Location J, at the start of the time, and the wife or a maternal grandparent collecting him from Cafe B at the end of the husband’s time;
o)That the wife be permitted to take X outside Australia, for the purpose of overseas travel, upon providing to the husband at least one calendar month of notice of the intention to travel, including details of dates, and destinations of travel. That 14 days prior to departure, the wife further provide to the husband proof of a return ticket for X, an itinerary identifying addresses, contact telephone numbers for where X will be staying, and a list of the countries which X will be visiting, whether in transit or otherwise;
p)That in the event the wife wishes to attend a special occasion with X, or go on a holiday with X, and he is in the care of the husband, including but not limited to a special family function, the wife shall provide 14 days’ notice in writing to the husband and be permitted to do so. The husband’s time shall be suspended during any such period. The husband should propose two options for make-up time however this should not restrict the wife’s capacity to take X on such occasion or holiday;
q)That the parents do all things necessary to obtain and maintain a valid Australian passport for X;
r)That the husband not take X outside Australia for the purpose of overseas travel until X is seven years of age (in 2021) “and upon the [husband] presenting evidence of sound foundations here in Sydney ensuring his return; property, business or otherwise.” In the event that the husband does take X overseas after X has reached seven years of age, the husband is to provide a security deposit of not less than $30,000, to be held in trust by the wife, and accessed in case of any delay or non-intention to return;
s)X to be called ‘X’ and not referred to as ‘XX’ or otherwise;
t)Once X’s name has been changed to X Pecora-Climo at the NSW Registry for Births, Deaths and Marriages, the parents do all things to change the records of his name at school, Medicare, health insurance, bank accounts, and on his passport;
u)The husband will return clothing and items from the wife’s home – specifically including school uniform, shoes, and school items, and in conditions similar to at the commencement of his time with the child – within 48 hours. The husband also return all shoes, toys and, clothing from changeovers on non-school days on the next occasion the child is with his wife;
v)That without admissions each party be restrained from discussing the proceedings with X, denigrating the other parent in X’s presence, or hearing, or allowing any other person to do so, and the parties be restrained from physically chastising X or allowing any other person to do so;
w)That the parties shall facilitate X attending all social and extracurricular activities, birthday parties and other events important to X when X is in their respective care;
x)That both parties may attend all school events to which parents are invited;
y)That each party refrain from attending sporting activities or other extra hyper-curricula activities whilst X is in the other parent’s care unless specifically invited to attend, or if there is a final match game or a special presentation event to take place;
z)That each of the parties keep the other informed of their current residential address, telephone numbers, and email address, and advise any change within 24 hours of the change occurring;
aa)That each of the parents keep the other parent fully informed of any medical matter affecting X;
bb)That the parties communicate by way of the ‘2Houses’ app in relation to all parenting matters;
cc)On a without admissions basis the husband is to provide written notification to the wife or the wife’s legal representative in the event of any motor or criminal offence within 48 hours of the motor or criminal offence occurring;
dd)That the husband undergo an immediate hair follicle test for the detection of cocaine, and that the hair follicle testing continue every eight weeks for a successive period of eight months or upon the wife’s request at any time, with a maximum of five or six tests conducted per annum. The husband is to authorise the testing centre to release the test results to the wife as soon as available, with the costs of the test to be borne by the husband; and
ee)That in the event that the husband presents a positive or ‘non-negative’ test for illicit substances or prescription medication not taken in accordance with the prescription, the husband will forfeit his spending time with the child. Thereafter, the wife will propose alternative care arrangements, with all parenting arrangements set out in the final orders to recommence upon presentation by the husband of a subsequent test result showing a negative result.
The wife sought that a notation be made by the Court in these terms:
The Court notes that in relation to orders relating to holiday arrangements and during school holiday periods the [husband] has no objection to X’s holiday time being in conjunction with the holiday time spent with his half-sister H, provided that the [husband] is advised no less than 21 days written notice by the [wife] of the time that has been arranged in respect of H’s time with the [wife].
The wife proposed the following orders in relation to the property settlement issues:
a)That the husband do all things necessary to transfer to the wife all his right, title and interest in the E Street, Suburb F property;
b)That simultaneously with the transfer by the husband to the wife of the E Street, Suburb F property, the wife pay to the husband $40,000;
c)That following the transfer by the husband to the wife of the E Street, Suburb F property, the wife indemnify the husband and keep the husband indemnified in relation to all liabilities in relation to the E Street, Suburb F property;
d)Each party keep their own superannuation entitlements;
e)That the wife remain the sole owner, to the exclusion of the husband, of her interests in S Street, Suburb T (‘the S Street, Suburb T property’), the BB Street, Town CC property, and all other items of property and personal property including motor vehicles, bank accounts, money, shares, jewellery and personal effects presently in her possession, custody, or control;
f)That the husband return all personal and sentimental belongings remaining in the family home including; jewellery including white gold and pearl drop necklace, rings belonging to wife’s grandmother, linen handwoven by grandmother and other personal effects;
g)That the husband remove any caveats registered by him on any of the real properties at E Street, Suburb F, S Street, Suburb T or BB Street, Town CC within 30 days of orders;
h)That the husband remain the sole owner as between himself and the wife of “his licence for beach in City KK, Italy” and all other items of property and personal property including motor vehicles, bank accounts (both in Australia and Italy), money, shares, jewellery and personal effects presently in his possession including “valuable items removed from the business at the onset of separation including professional machines, and other equipment”; and
i)That the wife be solely responsible as between the parties for “the current outstanding debts relating to the running of the family business: ATO superannuation debt of approximately $4700 and the debt for S Street, Suburb T strata fees accrued to approximately $7600.”
The husband sought orders in relation to the parenting issues summarised as follows, some of which have been passed by as to commencement time due to the delay between final hearing and the making of final orders:
a)That the parents have equal shared parental responsibility for X;
b)That the wife be restrained from altering X’s religion from Roman Catholic;
c)That X live with the wife;
d)That the husband spend time with X:
i)Until the start of term 1 in 2020, in week one from after school Friday until the start of school Tuesday and from 8.00AM until the start of school on Wednesday, and in week two from after school on Monday until the start of school on Tuesday and from 8.00AM until the start of school on Wednesday;
ii)Once X starts term one in 2020, in week one from after school on Friday until the start of school on Tuesday, in week three from after school on Monday until the start of school on Wednesday, and in week four from after school on Friday until the start of school on Tuesday;
iii)That once X starts term 3 in 2020, each alternate week during school term with changeover occurring each Monday at the start of school;
iv)From 6.00PM on 24 December until 2:00PM on 25 December in odd numbered years, and from 2.00PM on 25 December until 6:00PM on 26 December in even numbered years;
v)From 9:00AM on Easter Saturday until 2:00PM on Easter Sunday in odd numbered years and from 1:00PM on Easter Sunday until 5:00PM on Easter Monday in even numbered years;
vi)At other times as agreed between the parties;
vii)During school holidays, and for the first half of the holidays commencing in odd numbered years, and the second half of school holidays commencing in even numbered years with holidays starting at 3.00PM on the last day of school attendance and ending at 6:00PM on the day before X returns to school attendance, with the mid-point being 6:00PM on the day closest to the mid-point of the school holiday and changeovers during school holidays occurring by the husband collecting X from the wife’s residence at the start of his time and the wife collecting X from the husband’s residence at the end of his time, a nominee being able to substitute for the wife or the husband at changeovers;
e)That on X’s birthday, the parent without care of X spend time with him from after school until 7:00PM if a school day and from 10:00AM to 4:00PM if not a school day;
f)The husband spend time with X on Father’s Day from 5:00PM on the Saturday until the start of school on the Monday following Father’s Day;
g)That X be in the wife’s care for Mother’s Day from 5:00PM on the Saturday before Mother’s Day until the start of school on the Monday after Mother’s Day;
h)That X spend time with the husband on the husband’s birthday from the end of school until the start of school the next day, or 9:00AM if the next day is a Saturday or from 10:00AM until 7:00PM if the birthday is on a non-school day;
i)That X be in the wife’s care on the wife’s birthday, from the end of school until the start of school the next day or 9:00AM if the next day is a Saturday, or from 10:00AM to 7:00PM if the birthday is on a non-school day;
j)That any changeover not occurring at X’s school occur by the husband collecting X from the entrance to the Location J at the start of his time and the wife or a maternal grandparent collecting X from the Cafe B at the end of the husband’s time;
k)That both parents have “reasonable telephone communication or Facetime” with X;
l)That if either parent intends to take X outside of Australia for an overseas trip then they are to provide written notice of their intention to travel with X to the other parent no later than eight weeks prior to the proposed departure date;
m)That the wife return X’s passport, and provide the passport to the husband seven days before any proposed departure date of the husband to travel overseas with X;
n)That X travel outside of Australia with the husband to Italy on one occasion every second year;
o)That each of the parents keep the other advised of all relevant medical information about X;
p)That each of the parents be entitled to receive all relevant school information in relation to X;
q)That each of the parties keep the other informed at all times of their contact information (address, telephone number, email addresses) and provide 28 days written notice of any change;
r)That each of the parents be restrained from saying anything derogatory of the other parent in X’s presence or hearing or allowing any other person to do so;
s)That each of the parents be restrained from discussing the proceedings with X or interrogating X about the other parent’s household; and
t)That each of the parents be restrained from physically disciplining X or allowing any other person to do so.
In relation to the property settlement matter the husband sought the following orders:
a)That the wife pay to the husband the sum equal to 50 per cent of the value of the net matrimonial asset pool including superannuation within 28 days of the date of orders;
b)That upon payment in accordance with order (1) the husband transfer to the wife the whole of his interest in the E Street, Suburb F property;
c)That upon the transfer from the husband to the wife of the E Street, Suburb F property, the shall wife refinance all loans secured by way of mortgage over the E Street, Suburb F property so as to relieve the husband from any liability; and
d)That in the event that the wife does not pay to the husband the sum referred to in order (1), the parties do all things necessary to sell the E Street, Suburb F property with the wife paying all outgoings in relation to the property, including payments on all loan accounts secured on the property pending the sale, and following the sale the proceeds of sale be applied to the necessary costs of sale and discharge of loan accounts, payment to the husband of the sum referred to in order (1) and the balance paid to the wife.
The parenting issues
Each of the parents sought a long list of orders relating to parenting issues. Some of those orders sought by the parties overlap. The outstanding issues between the parties in regard to parenting are as follows:
a)Parental responsibility;
b)The time X should spend with the husband during school term time;
c)The time X should spend with each of his parents during the Christmas school holidays at the end of term 4;
d)The time X should spend with each parent over the Easter period;
e)The time X should spend with each parent over the New Year period;
f)Whether X’s name should be changed so as to add the wife’s surname as his principal surname, and whether there should be a restriction on how he is addressed in relation to his first name;
g)Travel by X outside Australia with either parent;
h)Suspension of the husband’s time at the election of the wife to enable X to attend any special occasions or holidays involving the wife;
i)X’s religion;
j)What telephone or video communication should occur between X and the parent who is not spending time with him; and
k)Whether any orders should be made in relation to the husband undergoing hair follicle drug testing.
The property issues
The parties came to the end of the final hearing without having reached agreement as to the value of certain items in the asset pool:
| Ownership | Description | Wife’s Value | Husband’s Value |
| Joint | E Street, Suburb F | $1,275,000.00 | $1,350,000 |
| Husband | CBA Smart Access Account #...26 | Unknown | $1,896 |
| Husband | Licence for beach in City KK, Italy | Unknown | nil |
| Wife | Motor Vehicle 3 | $21,000 | $26,845 |
| Husband | Motor Vehicle 4 | $5,000 | $3,000 |
| Husband | Scooter | $3,000 | $500 |
| Wife | CBA bank account #...34 | $2,000 | $2,683 |
| Joint | CBA bank account #...45 | $2,000 | $4,500 |
| Wife | 14,000 ordinary shares in DD Pty Ltd | Unknown | $14,000 |
The husband sought that certain sums be ‘added back’ to the matrimonial asset pool, including:
a)Traffic fines incurred by the wife to the value of $2,000;
b)Annual wages paid to the staff (of the business) by the husband valued at $3,000;
c)Proceeds of sale of the Motor Vehicle 2 sold by the wife in the amount of $7,000; and
d)50 per cent of the capital gains tax paid by the husband, totalling $8,400.
The wife disputed that the husband’s credit card with Commonwealth Bank of Australia, account ending #...36 with a debit balance of $1,462, should be included in the calculation of the matrimonial asset pool.
There was disagreement as to the value of the wife’s entitlement under her membership of the Super Fund LL, with the wife contending the value as an estimated $93,000 and the husband asserting the value as $92,865.
The evidence – parenting issues
The wife was born in Sydney Australia and was 43 years of age at the time of the hearing. The husband was born in City MM in Italy and was 41 years of age at the time of hearing.
The parties met in about 2009. The wife asserts they commenced a cohabitive relationship in 2010. In his affidavit the husband asserts two separate dates on which the parties commenced a cohabitive relationship, one date being early 2010 and the other late 2010.[2] In examination-in-chief at the hearing, the husband confirmed their cohabitation commenced in early 2010.
[2] Affidavit of the husband filed 22 August 2019, [4] and [150].
The wife has a daughter from a previous relationship, H, born in 2005, who spends alternate weekends with her father, as well as time in the school holidays.
The parties married in 2013. The only child of their relationship, X, was born in 2014.
The wife asserts that the parties separated on 30 November 2016, while the husband asserts they separated in late December 2016. Nothing turns on that difference of opinion. In any event, X was about two years and eight months of age when his parents separated. Following separation, X remained living with the wife and spent time with the husband as detailed hereunder.
The wife asserts in her evidence that she was X’s primary carer prior to separation and continued as his primary carer thereafter. The husband, for his part, asserts that once the wife returned to work in the family business, following X’s birth in 2014, they shared his care up until the time of separation. The husband concedes that the wife was the main carer for X from the time of their separation until the hearing.
Similarly, the wife asserts that she was mainly responsible for undertaking the homemaker role – cooking, cleaning, washing, ironing and shopping and so forth –whereas the husband asserts that the parties shared the homemaker role equally between them.
The parties went on several trips to Italy, including after X’s birth, and on some occasions the husband stayed on in Italy after the wife and X had returned to Australia.
In 2015, the parties and both children travelled to Italy to visit the husband's family. Whilst in Italy the husband asked the wife if they could arrange to have X baptised in the Roman Catholic faith whilst in his home town. The wife agreed and she asked X’s paternal grandmother and paternal uncle to act as X’s godparents.
Following the parties’ separation, the parties remained residing under the same roof until 10 January 2017, when the wife and child moved out of the matrimonial home and moved in with the maternal grandparents.
Following the wife and X moving out of the matrimonial home on 10 January 2017, an arrangement was made between the parents for the husband to spend some time with X from 18 to 22 January 2017. On 22 January 2017, the wife contacted the husband and asked if she could “catch up with them the following day” as she was missing X.
By arrangement on 23 January 2017, the husband and X met the wife at Location NN, where they all spent some time together. On parting, the wife asserts that the husband agreed to return X to the wife the next day.
On 24 January 2017, the wife collected the child from the husband as arranged. On 27 January 2017, the wife delivered X to his regular childcare place while she attended to matters at the family business and then, on returning to collect him at 2:00PM, she was told that the husband had collected X at 12:00PM. The wife went back to the family business, and the husband and X arrived at the business at 4.50PM. The wife left with X and went home.
On 29 January 2017, the wife took X to the husband’s home to spend time with him and they arranged to all spend time together on the following day. The wife left X with the husband overnight. On 30 January 2017, the wife went to the husband’s home and arrived in time to see the husband and X driving away in the husband’s motor vehicle. The wife asserts that this time between the husband and the child was not agreed upon between the parents, nor had the parties agreed for the husband to retain X in his care on 31 January 2017.
On 1 February 2017, the husband took X to his day care and the wife picked him up from the day care in the afternoon. On 2 February 2017, the wife went to the former matrimonial home to collect some belongings. The husband indicated that while the wife did so, he would take X to the park to play. When the wife arrived at the husband’s home, a discussion took place between them in relation to the care for the child, during which the wife conveyed to the husband that she no longer wished to proceed with a shared-care arrangement as it was not working. The wife said “I will just take my computer and leave with the child” to which she asserts the husband responded “If you take the computer I will break your face.”
Both parties then went inside the husband’s home and called the police. The husband then took X to the park. The police arrived and travelled back and forth between the home and the park to speak to the parties. After the police left the property, the husband also left with X in a car driven by a friend of the husband’s.
On 3 February 2017, the wife received a letter from the husband’s solicitors advising that the husband intended to keep X in his care until a parenting plan had been put in place.
On 4 February 2017, the wife went to see X play sports, but left after the husband, who was present, told the wife to go away or he would call the police. Afterwards, she was contacted by the police who advised her that Court orders would be the best solution.
On 8 February 2017, the parties attended a mediation but did not resolve any of their parenting issues.
On 10 February 2017, the wife filed her Initiating Application commencing these proceedings seeking a recovery order. The matter had its first return date before the Court on 17 February 2017, at which time the parties entered into the consent parenting orders detailed earlier in these reasons, and an order was made that the husband return X to the wife at 8.30AM on the following day, 18 February 2017.
The husband says in his trial affidavit that:
On 3 February 2017 X stayed with me. I decided that it was best X stay in my care until such time as a parenting plan could be arranged between the applicant and I as the applicant was behaving erratically and I did not want X to be distressed by the situation.[3]
[3] Affidavit of the husband filed 22 August 2019, [36].
I do not find the preceding paragraphs of the affidavit, in which the husband describes his version of the events of 2 February 2017, amount to the wife “behaving erratically.”
The wife asserts that following the making of the interim orders on 17 February 2017, and also in relation to the subsequent interim orders, that the parties complied with those orders, other than an assertion by the wife that the husband has not allowed her telephone communication with X whilst he is in his husband’s care.
X started school attendance at Suburb F Public School in kindergarten on 4 February 2019, which rendered parts of the February 2017 interim orders impractical and led to the parties revising the parenting arrangements in the consent interim parenting orders of 13 May 2019.
X attends kindergarten at Suburb F Public School, located about 500 metres from the E Street, Suburb F property. H attends at Suburb OO Catholic School.
The evidence – overseas travel with X
The husband seeks an order that he be able to travel with X to Italy on one occasion every second year. The wife seeks an order, under section 65Y(2) of the Act, enabling her to travel overseas with X when he is in her care provided she gives one month notice to the husband. She also seeks an order that the husband not able to travel overseas with X until X is seven years of age (in 2021), and on such occasions the husband deposit a sum of $30,000 with the wife “to be held in trust by the [wife] and accessed in case of any delay or non-intention to return”.
The husband's family still reside in City MM in Italy, about 2 and a half hours drive from City PP. The paternal grandparents, his brother, aunts, uncles, cousins, cousins’ children, and childhood friends all reside in City MM and surrounding towns.
Neither party has re-partnered.[106]
[106] Family Law Act 1975 (Cth) s 75(2)(e).
There is no evidence that the husband is eligible for or receives any pension, allowance, or benefit under the laws of the Commonwealth or of a State, or Territory, or of any other country, including Italy, or in relation to any superannuation fund or scheme.[107]
[107] Family Law Act 1975 (Cth) s 75(2)(f).
The wife gives evidence that she receives government benefits in the form of family tax benefit type A and there is no evidence that she is in receipt of any other pension, allowance, or benefit under the laws of the Commonwealth, or of a State, or of any other country or in relation to any superannuation entitlements.
Both parties have contributed during the period of their cohabitation to the income earning capacity, property, and financial resources of the other. I find that there is no basis for any adjustment between the parties for this consideration. On a similar basis I find that there is no basis for any adjustment between the parties in relation to the duration of their cohabitation. [108]
[108] Family Law Act 1975 (Cth) s 75(2)(a).
I find, on the basis of my consideration of the relevant matters referred to in section 75(2) of the Act, that it is appropriate to make an adjustment of five per cent in favour of the wife.
Accordingly, I find that in this matter it is appropriate to make orders for a property settlement between the parties on the basis of a global approach to the matrimonial asset pool. I find that it is appropriate to proceed on the basis of a one pool approach, such that the net matrimonial asset pool after taking into consideration all liabilities that I found to be relevant will consist of the parties’ available assets and their superannuation entitlements.
I find that it is appropriate that a property settlement between the parties reflect a division of their net matrimonial assets in favour of 70 per cent to the wife and 30 per cent to the husband.
Neither party seeks a superannuation split or flagging order.
Both parties contemplate a settlement where the wife will have the opportunity to retain the E Street, Suburb F property, on the basis that she makes a payment of the appropriate amount to the husband to achieve the 70 per cent to the wife and 30 per cent to the husband final settlement. Both parties agree that other than the E Street, Suburb F property they each keep such property and superannuation as is currently in their power, possession, and or control and that they each remain liable for the liabilities for which they are individually liable, with the exception of the loan account in their joint names that the ANZ bank secured on the E Street, Suburb F property which must be refinanced by the wife so as to relieve the husband of all liability if she is to retain the E Street, Suburb F property.
In the event that the wife is unable to refinance the ANZ loan account secured on the E Street, Suburb F property into her sole name, and pay to the husband the appropriate amount pursuant to the orders that I will make, then the E Street, Suburb F property will be sold and the net proceeds of sale divided as appropriate between the parties so as to achieve the settlement.
On the evidence there is a bank account in the joint names of the parties, being the Commonwealth Bank of Australia savings account #...45, which I have found to have a value of $2,000 and which the husband indicates in his Financial Statement contains no funds of which he has a share. I will make an order that the parties do all things necessary to close that account and pay the whole of the credit balance thereof to the wife.
I will make an order that the husband transfer his interest in the E Street, Suburb F property to the wife, that simultaneously:
a)the wife do all things necessary to repay the loan account in the parties’ joint names with ANZ bank;
b)that both parties do all things necessary to obtain a discharge of the mortgage registered on title to the E Street, Suburb F property to secure that loan; and
c)that the wife pay to the husband the sum of $127,785.00.
The order will otherwise provide that the husband retain all, personal property, financial assets and superannuation entitlements currently in his power, possession or control and that the wife retain all, personal property, financial assets and superannuation entitlements currently in her power, possession or control.
On the basis of the findings that I have made as to the composition of the matrimonial assets, relevant liabilities and superannuation entitlements, the order will achieve a division between the parties on a one pool approach of 70% to the wife and 30% to the husband.
I make the orders as set out at the beginning of these reasons. I certify that the preceding three hundred and fifty eight (358) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 2 December 2020
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the Court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party …
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party …;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage … including any contribution made in the capacity of homemaker or parent; …
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