COBB & COBB
[2015] FCCA 2653
•1 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COBB & COBB | [2015] FCCA 2653 |
| Catchwords: FAMILY LAW – Property – application by Husband for property settlement – contributions – where the Husband’s initial contributions outweigh those of the Wife - where the Husband is expected to receive an inheritance from the estate of his late Mother – question of whether the Husband’s inheritance forms part of the asset pool – where the Wife is to retain the primary care of the parties’ three children – section 75(2) factors – Husband’s superior earning capacity. HELD – Husband’s inheritance to be excluded from the asset pool – orders made for 60/40 division of the asset pool in favour of the Wife. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 60B, 60CA, 60CC(2) and 60CC(3), 61DA, 65DAA, 75 (2), 79 (2), 79 (4), 75 (2) (o) |
| In the marriage of Bonnici [1991] FamCA 86 Pierce & Pierce [1999] FLC 92 844 Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FamCA 395 Stanford & Stanford [2012] HCA 52 |
| Applicant: | MR COBB |
| Respondent: | MS COBB |
| File Number: | MLC 3140 of 2014 |
| Judgment of: | Judge Bender |
| Hearing date: | 24 June 2015 |
| Date of Last Submission: | 24 June 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 1 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Serra |
| Solicitors for the Applicant: | Berger Kordos |
| Counsel for the Respondent: | Ms Smallwood |
| Solicitors for the Respondent: | Mitchell Family Law |
| Counsel for the Independent Children’s Lawyer: | Mr Lethlean |
| Solicitors for the Independent Children’s Lawyer : | Victoria Legal Aid |
PARENTING ORDERS
The parties have equal shared parental responsibility for X born (omitted) 2004 (“X”), Y born (omitted) 2006 (“Y”) and Z born (omitted) 2007 (“Z”).
X, Y and Z live with the Wife.
X, Y and Z spend time and communicate with the Husband as follows:-
(a)each alternate weekend from the conclusion of school (or 3.30pm) until the commencement of school (or 9:00am) Monday or commencement of school Tuesday if Monday is a non-school day and if X, Y and Z are with the Husband on the Melbourne Cup weekend and the Monday before Melbourne Cup Day is a non-school school day, to before school Wednesday.
(b)every other week from the conclusion of school Wednesday to the commencement of school Thursday;
(c)for half of the school term holidays as agreed between the parties and failing agreement the second half from 5:00pm the middle Saturday to 5:00pm the Sunday before school resumes;
(d)for half of the long summer vacation as agreed between the parties and failing agreement the second half in 2015/2016 commencing at 5:00pm on the third Friday of the holidays and each alternate year thereafter and the first half in 2016/2017 and each alternate year thereafter commencing at 5:00pm on the last day of the school year to 5:00pm on the third Friday;
(e)from 5:00pm the day before Father’s Day to 5:00pm Father’s Day;
(f)from 3:00pm Christmas Day to 5:00pm Boxing Day 2015 and each alternate year thereafter;
(g)from 3:00pm Christmas Eve to 3:00pm Christmas Day 2016 and each alternate year thereafter;
(h)on each of X, Y, Z and the Husband’s birthdays at times to be agreed between the parties and failing agreement if the birthday falls on a school day from the conclusion of school to 7:00pm and if the birthday falls on a weekend 10:00am to 3:00pm; and
(i)as otherwise agreed between the parties.
The Husband’s time with X, Y and Z pursuant to these Orders shall be suspended as follows:
(a)the time pursuant to Order 3 (a) and 3 (b) shall be suspended during all school holidays and recommence as if the school holidays had not intervened;
(b)on X, Y and Z’s religious sacrament days being Holy Communication and Confirmation and the Husband and extended paternal family shall be able to attend these occasions;
(c)from 5:00pm the Saturday before Mother’s Day to 5:00pm Mother’s Day;
(d)in the event X, Y, Z or the Wife’s birthdays fall on a weekend X, Y or Z are with the Husband pursuant to these Orders, the Husband’s time be suspended for a period of five hours as agreed between the parties and failing agreement from 10:00am to 3:00pm;
(e)from 3:00pm Christmas Eve to 3:00pm Christmas Day 2015 and each alternate year thereafter;
(f)from 3:00pm Christmas Day to 5:00pm Boxing Day 2016 and each alternate year thereafter;
Both parties, by themselves, their servants and/or agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating each other, in the presence and/or hearing of the children or from permitting anybody else to do so; and
(b)discussing these proceedings with or in the presence and/or hearing of the children or any of them or permitting the children to peruse any Court documentation and from permitting anybody else to do so.
The parties be permitted to attend all school events and extra-curricular activities relating to X, Y and Z normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.
Each party shall advise the other of any serious illness or injury suffered by X, Y or Z whilst they are in their care as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
PROPERTY ORDERS
The Husband pay to the Wife the sum of $457,520.00 (“the payment”) on or before 4:00pm on 30 November 2015 (“the date”).
Contemporaneously with the payment:
(a)the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situate at and known as Property C (“the real property”).
(b)The Husband indemnify the Wife against all apportionable rates, taxes and outgoings of or with respect to the real property whatsoever nature and kind.
In the event that the whole of the payment has not been made by the date then the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)first to pay all costs, commissions and expenses of (the said trust transfer and) the sale;
(b)secondly, to discharge any mortgage and any other encumbrance affecting the real property;
(c)thirdly, so much of the payment as is then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the date to the Wife; and
(d)fourthly, the balance to the Husband.
Pending the payment or completion of the sale:
(a)the Husband have the sole right to occupy the real property and during such right of occupation the Husband pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)neither party encumber the real property without the consent in writing of the other party.
Having been accorded procedural fairness in relation to the making of these Orders paragraphs 12 to 16 of these Orders are binding on the Trustee of the (omitted) Super (“the Fund”);
In accordance with Section 90MT (1)(a) of the Family Law Act 1975 (Cth) (“the Act”) whenever the fund makes a splittable payment in respect of the superannuation interest of the Husband in the Fund, the Wife, her administrators, executors, beneficiaries, heirs and assigns shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $56,183.50 (provided such base amount shall not exceed the value of the interest determined under Section 90MT(2)) and that there shall be a corresponding reduction in the entitlement of the Husband to whom the splittable payment would have been made but for these Orders.
This Order takes effect from the operative time for four business days after the date of service of a sealed copy of the Orders upon the trustee of the Fund.
The Wife cause a sealed copy of these Orders to be served upon the Trustee of the Fund within seven days of the date of the making of these Orders by way of ordinary pre-paid post.
To give effect to these Orders, the Husband and Wife shall do all required acts and things and sign any necessary documents to enable the Trustee of the Fund to give effect to paragraphs 12 to 16 hereof.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Husband);
(b)insurance policies remain the sole property of the owner named therein;
(c)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; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Cobb & Cobb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3140 of 2014
| MR COBB |
Applicant
And
| MS COBB |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the parties’ application for both parenting and financial orders following the breakdown of their marriage.
The Husband is seeking orders that the parties have equal shared parental responsibility for their three children X born (omitted) 2004 (“X”), Y born (omitted) 2006 (“Y”) and Z born (omitted) 2007 (“Z”), that they live with him and spend time with the Wife each alternate weekend from after school Friday to before school Monday and in the alternate week from after school to 7:30pm Tuesday and Thursday, for half the school holidays and there be a sharing of special occasions.
The Wife is seeking Orders that the parties have equal shared parental responsibility of X, Y and Z, that they live with her and spend time with the Husband each alternate weekend from after school Friday to before school Monday and from after school Wednesday to before school Thursday in the alternate week, half school holidays and there be a sharing of special occasions.
The Independent Children’s Lawyer supports the Wife’s proposal for X, Y and Z’s living arrangements.
At the commencement of cohabitation in 2008, the Husband owned (country omitted) (‘the (country omitted) property’) and the former matrimonial home at Property C (‘the former matrimonial home’). The Husband purchased the former matrimonial home in (omitted) 1995 by borrowing against the (country omitted) property. In 1998, the Husband borrowed $100,000 against the Property C property to fund renovations to that property.
In (omitted) 2001, the Husband's (country omitted) property was sold for (omitted). The proceeds of sale were used to discharge the mortgages on both the (country omitted) property and the former matrimonial home and the balance remaining of approximately $30,000 was placed in a term deposit.
The Husband argues that the monies received from the sale of the (country omitted) property means his contribution to the parties’ assets is greater than those of the Wife and there should be an adjustment in his favour arising from his greater contribution.
During the running of the matter evidence was put before the Court that the Husband is shortly to inherit approximately $85,000 from the estate of his late Mother.
The Husband argues that his inheritance does not form part of the pool of assets for division between the parties and should be treated as a financial resource in his favour.
The Husband therefore seeks property orders that he pay the Wife $282,000, that she retain the $127,000 already received by her by way of interim distribution of property and that he retain the former matrimonial home. This represents a 58/42 percentage division of the parties’ realisable assets in the Husband’s favour.
In the event the Husband is unsuccessful in his application that X, Y and Z live with him, it is the Husband’s proposal he pay the Wife the sum of $379,500 and she retain the interim property already distributed to her. This would mean the Wife receives 52% of the pool.
In relation to property matters, it is submitted by the Wife that the Husband’s initial contribution is offset by her contributions during the relationship such that the parties’ contributions to their assets should be considered equal.
It is further submitted on behalf of the Wife there should be an adjustment in her favour pursuant to s 75(2) of the Family Law Act 1975 (Cth) (‘the Act’) because of her responsibility for the primary care of X, Y and Z, the disparity in the parties’ earning capacities and the Husband’s greater financial resources being the inheritance from his Mother’s estate.
The Wife therefore proposes the Husband pay her $560,000 and he retain the former matrimonial home. This represents 70% of the property pool if the Husband’s inheritance is excluded from the pool or 65% of the pool if the Husband’s inheritance is included in the pool.
Background
The Husband was born in (country omitted) on (omitted) 1974 and is aged 41 years. He is employed on a full time basis as a (occupation omitted) with (employer omitted) earning $90,000 per annum. The Husband has not re-partnered.
The Wife was born on (omitted) 1972 and is aged 42 years. She is employed on a part time basis as a (occupation omitted) and earns approximately $16,000 per annum. The Wife has not re-partnered.
In (omitted) 1988 the Husband purchased the (country omitted) property for a (omitted) utilising his savings and a mortgage (omitted).
In 1995, the Husband borrowed $100,000 against the (country omitted) property to purchase the former matrimonial home for $85,000.
In (omitted) 1995 the parties commenced their relationship and in approximately (omitted) 1998 the parties commenced cohabitation.
In (omitted) 1998, shortly prior to the parties commencing cohabitation, the Husband took out a $100,000 mortgage on the former matrimonial home and commenced renovations on the former matrimonial home.
The Husband sold the (country omitted) property for (omitted) in (omitted) 2001. The proceeds of sale were applied to discharge the mortgage on the (country omitted) property, the mortgage on the former matrimonial home and the balance was invested in a Term Deposit with the (omitted) Bank.
The parties married on (omitted) 2002.
Both parties were in full time employment until shortly prior to the birth of X. Thereafter the parties had a ‘traditional’ arrangement whereby the Wife was engaged full time in home duties and the Husband was the ‘breadwinner.’
In January 2014 the parties separated under the one roof.
On 26 February 2014 the parties equally divided the monies held in a (omitted) Bank Account and a (omitted) Bank Term Deposit. Each received $45,763.15.
On 11 April 2014 the Husband filed an Initiating Application seeking both parenting and property orders.
On 14 April 2014 the Wife vacated the former matrimonial home with X, Y and Z. They moved into an investment property purchased by the Wife’s sister in (omitted). The Wife pays a commercial rent of $2,080 per month to her sister.
Immediately after separation X, Y and Z spent time with the Husband each alternate weekend from after school Friday to Sunday night and each Wednesday from 3:30pm to 6:30pm.
The Husband’s Application first came before the Court on 2 June 2014. Interim Orders were made for X, Y and Z to live with the Wife and for them to spend time with the Husband each Wednesday from 3:30pm to 6:30pm, alternate weekends from after school Friday to before school Monday and for half of the second and third term holidays.
Orders were also made for the parties to attend upon Dr E for psychiatric assessment and upon Mr V for the preparation of a Family Report.
In relation to the property matters, an Interim Order was made for the Wife to receive $35,000 from the Term Deposit held in her name with such amount to be categorised at trial and for the balance of that Term Deposit, being $90,700, to be re-invested on behalf of the parties.
The Interim Orders also provided for the parties to attend private mediation no later than 26 September 2014 and for the matter to be listed for mention on 27 October 2014 and final hearing on 20 May 2015, later adjourned to 22 June 2015.
Immediately after separation, the Wife requalified as a (occupation omitted). In July 2014 the Wife commenced work on a part time basis as a (occupation omitted) with (employer omitted). She works during school hours and on the weekends and school holidays when X, Y and Z are with the Husband. The Husband remains in full time employment as a (occupation omitted) with (employer omitted).
On 24 October 2014, the parties’ solicitors forwarded to the chambers of Judge Bender correspondence seeking interim consent orders be made in chambers and the mention date of 27 October 2014 be vacated.
On 27 October 2014 Interim Orders were made in chambers which provided for the amount of approximately $93,700 invested in the Wife’s name to be divided equally between the parties by way of a partial property settlement and for X, Y and Z to spend time with the Husband at Christmas, during the 2014/2015 long summer vacation and for half of the first school term holidays.
X, Y and Z’s living arrangements have continued in accordance with the Interim Orders made 2 June 2014 and 27 October 2014.
Parenting Matters
The Evidence
The Husband
The Husband relies on his affidavits sworn 14 April 2014, 17 July 2014 and 24 April 2015. The Husband also gave viva voce evidence at the final hearing.
The Husband is seeking Orders that the parties have equal shared parental responsibility for X, Y and Z, that they live with him and spend time with the Wife each alternate weekend from after school Friday to before school Monday, from after school to 7:30pm on Tuesday and Thursday in the alternate week, for half school holidays and that there be a sharing of special occasions.
It is Husband’s evidence that he believes that it is in the best interests of X, Y and Z that they live with him because of their close and loving relationship with him.
It is the Husband’s evidence that the Wife has a history of excessively physically disciplining the children, that she is emotional volatile, that she is socially isolated and she has undermined X, Y and Z’s relationship with him since these proceedings. The Husband also alleges the Wife is inappropriately discussing the proceedings with the children. Because of these reasons he believes X, Y and Z would be at risk of harm if they were to predominantly live in the Wife’s care.
It is the Husband’s evidence that during the relationship the Wife would at times physically discipline the children by slapping them on the legs, swearing at them and verbally abusing them.
The Husband in particular gives considerable weight to an incident he alleges occurred on 17 December 2013 after the parties had attended the children’s school for the Christmas concert.
It is the Husband’s evidence that after the concert X did not come straight to the car but went and bought some candy which resulted in the rest of the family being kept waiting in the car for five to ten minutes.
It is the Husband’s evidence that when X returned to the car the Wife was extremely angry and yelled at X for delaying the family and for being selfish as he had not bought anything for his younger siblings.
It is the Husband’s evidence that the Wife then twisted onto her knees on the front passenger seat of the car where she was sitting, leaned over to the back seat and punched X on at least five occasions whilst yelling loudly at him.
It is the Husband’s evidence that X was crying and that Y and Z were also very upset. It is his evidence all three children were cowering away from the Wife as they were terrified of how she was behaving.
In relation to the Husband’s belief that the Wife is undermining his relationship with X, Y and Z, it is the Husband’s evidence that X has told him out of context and unprovoked that he does not want to live with him and that the Husband is mean. It is the Husband’s evidence that X has also told him that Y hid a toy under his shirt after spending time with the Husband because the Wife had told Y that the Husband stopped him from taking his toys with him when separation occurred.
It is the Husband’s evidence that Y told him that the cat who lives with the Husband causes his asthma, that the Husband’s house is an embarrassment, and that it is dirty and has fleas. It is the Husband’s evidence that Y and X have told him he loves his cat more than them.
It is the Husband’s evidence that X, Y and Z have sworn at him telling him to “get fucked” and that they hate him and that when he disciplines Z she said she did not care as “….she will tell Mum and Mum will tell the Court.”
It is the Husband’s evidence that since separation, Y has also been regularly punching, kicking and biting him, behaviours that he did not exhibit prior to separation.
In relation to the Husband’s belief the Wife is discussing the proceedings with the children, it is the Husband’s evidence that X has said to him that the Judge will decide where he is going to live. As he has never discussed these proceedings with the children in any way, it is the Husband’s belief that X has heard this from the Wife.
It is the Husband’s evidence that the Wife does not engage socially with friends or family and that during the relationship it was he who was responsible for organising and ensuring that X, Y and Z engaged in extra-curricular, sporting and social activities outside of school.
It is the Husband’s evidence that he is concerned that if X, Y and Z continue to live primarily in the Wife’s care, they will be socially isolated and discouraged by the Wife from engaging in extra-curricular and social activities.
In relation to the Husband’s evidence that he believes the Wife has coached or encouraged the children to use foul language to him, it is the Husband’s evidence that whilst the Wife does not routinely swear, she is aware of his views against the use of foul language and that “it is not inconceivable she would encourage the kids to use those words to upset me.”
When the Husband was asked if he believed the Wife would go against her beliefs to spite him by encouraging the use of foul language, it is the Husband’s evidence:
“I do not believe Ms Cobb has the best interest of the children at heart.”
The Husband was questioned about what the impact would be if X, Y and Z were to stop living primarily with their Mother who has always been their primary carer. It is the Husband’s evidence that he has a close and loving relationship with X, Y and Z and that whilst they have been living primarily in the care of the Wife since separation, he believes they will cope with a change of residence as they are resilient children and will adapt to the change in their living circumstances that his proposal would require.
In the Family Report prepared by Mr V and also in his viva voce evidence, Mr V observed the children to be most closely attached to the Wife and that they did not report any of the concerns raised by the Husband in relation to the Wife’s parenting.
It is Mr V’s evidence that X, Y and Z perceive the Wife to be gentle, calm, loving, affectionate, safe and secure and that it is the Wife who is their central hub.
Mr V’s recommendations are for X, Y and Z to continue to live with the Wife and to spend regular and consistent time with the Husband with whom they also have a close and loving relationship.
When the Husband was cross examined about Mr V’s report and recommendations, it is the Husband’s evidence that X, Y and Z were not frank about their experiences of the Wife when speaking to Mr V and suggested that the Wife had “prepared” X, Y and Z for the report process.
When further questioned about Mr V’s observation that from the perspective of X, Y and Z the Wife is their primary carer, the Husband was prepared to concede that this was “possible but not probable.”
The Wife
The Wife relies on her trial affidavit sworn 11 May 2015. The Wife also gave viva voce evidence at the final hearing.
The Wife also relies on the affidavit of her sister Ms A sworn 11 May 2015.
The Wife seeks Orders that the parties have equal shared parental responsibility for X, Y and Z, that they live with her and spend time with the Husband each alternate weekend from after school Friday until the commencement of school Monday, from after school Wednesday to the start of school Thursday in the alternate week, for half of all school holidays and for special occasions.
It is the Wife’s evidence that she has always been the primary carer for X, Y and Z and that they have a close and loving relationship.
The Wife also acknowledges that the children love their Husband as he does them.
It is the Wife’s evidence that after the children were born she was engaged in the full time care of X, Y and Z whilst the Husband performed the role of income earner for the family.
It is the Wife’s evidence that after separation she re-trained as a (occupation omitted) and has ensured that her working hours fall during school times and on the weekends and holidays when X, Y and Z are in the Husband’s care so that she is always available to look after the children.
The Wife denies absolutely the allegations made by the Husband in relation to her parenting of X, Y and Z.
In relation to the alleged incident on 17 December 2013, it is the Wife’s evidence that she was angry with X when he returned to the car as she did not know where he had gone but categorically denies that she turned around and punched him or that he or any of the children were terrified of her.
It is the Wife’s evidence that whilst the car was moving she did turn around and smack X on his legs once only. X, Y and Z were not crying or sobbing and did not cower away from her. She described the mood in the car as quiet.
It is the Wife’s evidence that she has only ever smacked X twice in his entire life and that she has never smacked Y or Z as this is not her preferred form of discipline.
In the Husband’s evidence he made allegations that the children’s behaviour had regressed since separation, and in particular that they were unable to eat their food with a knife and fork but instead used their hands.
It is the Wife’s evidence that when the parties were together and X, Y and Z were younger, she and the Husband would cut up the children’s food. It is her evidence that when in her care all three children now use cutlery except when they are having fish and chips when they are allowed to use their hands to eat.
The Husband also takes issue with a note the Wife left in Z’s wardrobe after she and the children vacated the former matrimonial home which read, “they are not here anymore Mr Cobb” with a smiley face underneath. The Husband alleges this was the Wife taunting him about the children no longer being in the former matrimonial home.
It is the Wife’s evidence that when the parties were separated under the one roof she had sought legal advice and had attempted to hide the documentation provided to her by her lawyers in Z’s wardrobe. It is her evidence that she became aware that the Husband had found those papers and gone through them and that when she left the matrimonial home she left the note for the Husband. She did so to tell the Husband that her legal papers were gone and was not making any reference to the children.
It is the Wife’s evidence that for approximately nine months before the parties separated under the one roof she had been sleeping in Z’s bedroom because of the Husband’s snoring. As their relationship deteriorated and the parties separated under the one roof it is the Wife’s evidence that she continued to sleep in Z’s bedroom which is why she chose to hide the legal papers in Z’s room.
It is the Wife’s evidence that she does not denigrate the Husband to the children and that at times she finds herself defending him to them when they are critical of him.
The Wife denies that she has ever discussed these proceedings with X, Y and Z. She also denies she coached them prior to their attendance upon Mr V for the preparation of the Family Report.
The Wife denies the Husband’s evidence that she is anti-social or has a strained or difficult relationship with her family. It is the Wife’s evidence she has many friends who she sees regularly. The Wife describes a very close relationship with her sister to the extent that she provided twelve of her eggs to assist her sister’s IVF process. It is the Wife’s further evidence that her sister purchased an investment property for her to rent when she and the Husband separated as she was otherwise unable to obtain rental accommodation because of her then lack income.
It is the Wife’s evidence that she does not believe that it would be in X, Y and Z’s best interest for there to be the dramatic change in living circumstances that the Husband’s proposal would entail as she believes the children perceive her to be their primary carer and that they would be significantly distressed were they to not live in her primary care.
Ms A
Ms A is the Wife’s sister. She swore an affidavit in support of the Wife’s application on 11 May 2015 and gave viva voce evidence at the final hearing.
It is Ms A’s evidence that she purchased the investment property in (omitted) where the Wife lives to assist when the Wife was unable to secure rental accommodation in her own right given her then lack of steady income.
It is Ms A’s evidence that she has witnessed X, Y and Z eat on numerous occasions when with the Wife and that they use cutlery to eat their food appropriately.
It is Ms A’s evidence that she has never seen the Wife physically discipline the children or be abusive towards them in any way.
Ms A denies adamantly that she and the Wife do not and did not have a close relationship. It is her evidence she loves her sister with all her heart, as her sister loves her.
Ms A concedes that she has seen much more of the Wife and her niece and nephews since separation, a situation she describes as fantastic.
It is Ms A’s evidence that she accompanied the Wife, X, Y and Z to the appointment with Mr V so she would be available to look after the children whilst the parties were being interviewed.
It is her evidence that she heard the Wife explain to the children before they left the Wife’s home on the morning of the family report interviews that they were going to see Mr V as, “Mum and Dad had people trying to help us sort things out.”
Ms A described X, Y and Z as having a close and loving relationship with the Wife who she observes to be much happier since her separation from the Husband.
Mr V
Mr V is a clinical psychologist who prepared a family report in this matter dated 29 September 2014 which is annexed to his affidavit sworn 17 November 2014. Mr V also gave viva voce evidence at the final hearing.
In relation to the Husband, in paragraph 19 of his family report, Mr V states the following:
“My observations of Mr Cobb with his children were unequivocally positive. He related warmly and easily, they engaged easily and they were affectionate. They played cooperatively, albeit that comparatively, they were a little more uncontained than when sitting with their mother, but this was not at a significant end of the continuum. Mr Cobb paid equal attention to the children and engaged comfortably with them. They were relaxed in each other’s company, they maintained good dialogue and they interacted warmly and positively. He showed himself to be a patient and attentive parent…”
In relation to the Wife, Mr V in paragraph 24 states the following:
“My observations of Ms Cobb and the children were unequivocally positive. She showed a calmness and involvement with the children that was different to that of Mr Cobb. Whereas he interacted with the children easily and comfortably, by way of comparison, she was much more inclusive of the children, that is, that they focused around her, they used her as a central hub, they played cooperatively together and they orbited around and continuously included her, as compared to when with their father, they played more separately and he participated with them individually. The children in the company of their mother were more at ease, being together and working in unison with her. Her presence had a calming and reassuring affect. She was tolerant, directive, supportive and containing. I would describe her interaction with them and them with her as being easy, fun and relaxed.”
When discussing X in his Family Report, Mr V states the following at paragraph 29:
“….He clearly perceives his mother as his primary carer, and the person upon whom he is the most reliant. Contrary to the description of her by Mr Cobb, X told me that he loves his mother that he wants to keep living with her, that she is kind, that she doesn’t yell, that she is loving and doting, and that he relies on her for most things. He told me “she is the one who looks after me the most and who takes me when I get hurt.” He was unequivocally positive about her, describing her as kind, caring, loving and generous.
In relation to X’s comments and observations of his Husband, Mr V sets out as follows in paragraph 30:
“He was equally positive about his father but clearly did not convey the same dependence or reliance upon him. He understands that his father is very angry with his mother and has behaved aggressively towards her. Whilst he appreciates that his father is negative and more angry, this does not equate to X not wanting to see his father and to the contrary he loves his father and wants to see him, but by way of contrast, he told me that it’s easier living with his mother, that she is “never grumpy,” that she is always there and spends time with them, and that his mother is never angry or mean to them.”
In paragraph 31 of his report, Mr V provides the following conclusions in relation to his observations of X:
“X clearly has a particularly close relationship with his mother and perceives her as the person upon whom he is the most reliant. Psychological assessment consistently revealed her as the person upon whom he is the most reliant and the person he trusts. He loves his father and wants to see him, but his expectation is that he will live with mother, that she is the social and emotional base from his launches; she is the parent who provides for his dependency needs.”
In relation to Y, Mr V in his Family Report sets out the following in paragraph 33:
“Y would like his parents to reconcile, and for family life to return to normal...He feels less secure with his father explaining, “….my mum is the one who always has looked after me and she knows what to do and how to look after me.” He also clearly perceives his mother as a source of having his primary dependence he needs met and the parent upon whom he is the most reliant. He told me there was nothing about his mother that he would change.
In paragraph 34 of his family report, Mr V set out Y’s observations of his father as follows:
“He described good times with his father, that he enjoys seeing him, but that he is not as accustomed to looking after them as is their mother. As was the case with X, he described his father as more prone to be “negative and angry,” told me that he was “more grumpy” and “a bit more mean,” and that “he gets angry about little things”. When asked if he could change his parents, he told me that there was nothing about his mother that he would change but that he would make his father treat his mother more kindly and be nicer to her.”
In relation to Z, Mr V in his family report at paragraph 37 sets out the following:
“Z portrayed both of her parents in positive terms, but her mother is clearly also the source of her primary dependency needs bring met. She trusts her mother, relies on her mother, she told me that her mother is the person who understands how she feels and who takes the best care of her. Z loves her father and wants to see him and enjoys the time spent with him; she depends and relies primarily on her mother however.”
Under the heading “Conclusions,” Mr V states the following:
“38. Ultimately matters of fact will need to be determined by the Court. However, given the nature of the dispute and the concerns raised about Ms Cobb and her parenting capacity, I saw no indication whatsoever. To the contrary, each of the children described their mother in unequivocally positive terms. They depend and they rely on her. All three described their mother as the source of having their primarily dependency needs met and that this is historically based. They love and trust their mother and depend upon her because she has always been there. Each of the children in their own way described living with their mother as easier, as uncomplicated and all three conveyed an expectation that this would continue.”
“39. Notwithstanding the concerns raised by Mr Cobb, none of these figured in any of my discussion with the children. Even when asked leading and erroneously suggestive questions, there was no concern raised. Each of the children told me that their mother kind, loving, affectionate, and that they trusted her. If anything, they described their father as more intolerant, more prone to anger and “a bit more mean”…
…
“41. Ultimately matters may need to be tested in Court, but from a psychological perspective and through the eyes of the children, what they need is stability and routine , and for their relationship with both parents to be secure and protected; in this regard the application by Mr Cobb might be seen as an attack on this security. His concerns did not figure at all in the children’s presentation and the opposite was true. They clearly need regular and consistent time with their father and they enjoy that time. They are however, reliant and dependent on their mother and this needs to be protected from unnecessary and unwarranted assault by litigation and escalating allegations. I note the report by DHS and the lack of concerns harboured by them. There was nothing about the children’s assessment that raised any concern whatsoever.”
“42. It may be that a way forward is to put in place firm, clear, unambiguous Orders around the children’s time spent with their parents, including holidays, significant dates, Mother’s Day, Father’s Day and other important family events. It may also be that a way forward is to consolidate the time to avoid fragmentation and allow the children to become more acquainted to continuous periods of time in the care of their parents.”
“43. There needs to be an end to the litigation. I strongly encourage Mr Cobb to reflect upon the damage that is being done by this process to the children and ultimately to the children’s perception of him as the aggressor. Notwithstanding his concerns, I saw no indication in the material produced by the children or my observations of the children with their mother suggest any fear, discomfort or apprehension and frankly, the opposite was all true.”
In his viva voce evidence Mr V was asked to expand on his observations of the relationships that X, Y and Z have with each of their parents. It is Mr V’s evidence as follows:
“My sense, and I think what comes through my report is that they have got two special people in their lives, and they love and rely on them, but their mum is a bit more special, and that she is perceived by them as gentle and calm and loving and affectionate, safe and secure, and that is what you see with – it’s a quality that is difficult to describe but easy to observe. She is inclusive... and I think I may have used somewhere in my description of her this sense that she is like a central hub. That all the business goes through her and she… kind of had her finger on everything, and the kids were really settled with her.”
In his family report at paragraph 27 Mr V observes the Wife to be positive to X, Y and Z about the Husband and notes that she encourages them to see the Husband and supports their relationship with him.
Given the Husband’s evidence that he believes the Wife denigrates him to the children and she is undermining their relationship with him, Mr V was asked whether he had observed anything that would support the Husband’s concerns in this regard. It is Mr V’s evidence as follows:
“I think it significant that the children speak positively about their dad. I think it is significant that the children interact normally and well with the dad. I think that if a parent…embarks on a campaign of denigration then it often reflects in the behaviour of the children, either in terms of their negativity, or the children actually tell you… these kids clearly understand that their mum and dad are not friends, but they love their mum and dad and, … manage moving between the two houses relatively well… so I don’t see evidence to suggest that she has actively denigrated him because of their behaviour in relation to him.
Mr V was questioned about his observations in paragraph 30 of his report that X understands his father to be angry with the Wife and to have behaved aggressively towards her. In particular, he was asked whether X said anything to indicate where his beliefs had come from. It is Mr V’s evidence that he asked X to draw a picture of both his parents and then asked him to tell him about his dad. It is Mr V’s evidence that X told him that the Husband can be mean that he can also be kind and he likes to play outside. X also told Mr V that the Husband can get cross and that he thinks the Husband is angry with the Wife. X told Mr V that the Wife is kind, loving and generous, that she takes care of us when we get hurt and that we can trust and rely on her. X told Mr V “that it is a bit easier with Mum as Dad gets really grumpy and Mum does not.” X told Mr V that Mum always listens to us but that Dad does not listen as much.
It is Mr V’s evidence that when X was asked of all the people in his world, the question being out of everyone, who takes best care of him, who does he feel most safe with and who does he trust the most, he answered “Mum” to each of those questions.
Mr V observes that X’s description of the Wife does not fit the picture of someone who scares him even though the event alleged by the Husband in December 2013 may have occurred.
Mr V was very strong in his evidence that he does not believe X chose not to mention this incident to him because it might make his mother look bad but rather because it was not an event that held any significance for X.
It is Mr V’s unambiguous viva voce evidence that X, Y and Z should continue to live in the primary care of the Wife and spend consistent regular time with the Husband.
In his report and in his viva voce evidence, Mr V suggested that it might be of benefit to X, Y and Z if their time with the Husband was consolidated into one block to avoid the coming and going that the children and especially Y is currently experiencing and to enable them to get used to spending block periods of time with both of the parties.
Dr E
Dr E is a psychiatrist who conducted a psychiatric assessment of both parties dated 28 July 2014. His assessment is annexed to his affidavit sworn 14 November 2014. Dr E also gave viva voce evidence at the final hearing.
In relation to the Husband, Dr E concludes at page 7 that:
“his emotional state and symptoms do not rise to clinical significance. Mr Cobb would not be deemed as someone exhibiting signs of a psychiatric condition at the time of his assessment with myself. He did not impress as someone who was a risk to his children.”
In relation to the Wife, Dr E concludes at page 13 as follows:
“Her description of her emotional symptoms during the post separation period is consistent with that of an Adjustment Disorder with Anxious Mood now in remission with treatment. Ms Cobb does not have a mental illness as such. She is not unbalanced or erratic. She denies the allegation that she was physically and emotionally abusive of the children and her account in that regard I found convincing and genuine. She impresses as someone who really loves her children. As she says, “I am a mum, that is my job”. In my view she does not pose a risk to them.
In his report under the heading ‘Opinion Dr E states as follows:
“1. Mr Cobb and Ms Cobb make similar allegations against each other. Mr Cobb alleges that his wife was unstable, possibly due to the presence of a mental illness, was unfaithful, lost interest in the children, abused them and parented them in an emotionless manner and is now infantilizing them and manipulating them against him. It was his account that he was at all times closely involved with the children. He denies her allegations that he is litigious and likes to take people down in the process. At interview I found aspects of his account difficult to comprehend in regard to his concerns about the children. He appeared to have carefully laid out his concerns in regard to them but in the end, I was left with some questions as to what his concerns and complaints about his wife were really all about. It appeared that he was largely driven by the fact that he considered she had been unfaithful to him, a fact which he made known to the local school and her family without consulting her. Whilst at all times he saw himself as acting in the best interests of the children, it was possible that he was struggling to come to terms with her wish to leave him and take control over her own life.
2. Ms Cobb presented as very differently. She impressed as straightforward, caring and somewhat unsophisticated and found it a relief to tell her story and communicate her various experiences during the marriage. In contrast to Mr Cobb’s description of his wife as someone who was emotionally removed, distanced, process-driven and unloving to the children, Ms Cobb proved to be a direct contrast to his description. Rather, if anything this description may well be one that more fits him that her. Ms Cobb’s account of the marriage, her description of the relationship with the children, and her devotion to them, was compelling and I was left with little doubt as to her love of the children and her role as their primary caregiver.
3. Whilst this is a matter ultimately for the Court, I believe that the evidence is likely to strongly fall in Ms Cobb’s favour and that further, her account of Mr Cobb may well and is likely to be an accurate depiction of him.
4.Whilst Ms Cobb was clearly stressed in the post-separation period consistent with the diagnosis of an Adjustment Disorder with Anxious Mood, that condition is now in remission. She does not as such suffer from a mental illness and at all times, was likely to have maintained a close and motherly relationship with the children.
5. Whilst Mr Cobb attested to his love for the children, I was left with some doubt as to his actual involvement with them. This is a matter which will be further clarified following Mr V’s assessment of the family.”
Dr E confirmed his report and the opinions contained therein in his viva voce evidence.
The best interests of the child
Part VII of the Family Law Act1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
1. The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine what is in the best interests of the child, the court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the court, must be considered and assessed in the context of each of the parties’ proposals. The court should then make a decision as to which of the parties’ proposals, or such other arrangement as the court determines given the court is not bound by the parties’ proposals, is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the court must consider when determining what is in the best interests. They are as follows.
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
X, Y and Z have a close and loving relationship with both the Wife and the Husband.
I am satisfied on the evidence of the parties and of Mr V that the Wife has been and is the children’s primary carer and it is with her that they feel most safe and secure.
It will be important that any orders made by this Court ensure that the children’s emotional stability is maintained and that they are able to continue the meaningful, loving and close relationship they have with both of the parties.
Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
The Husband alleges that X, Y and Z are at risk of physical and emotional harm if they live in the primary care of the Wife.
It is the Husband’s evidence that he has observed the Wife to physically assault the children, particularly X.
The Husband gives evidence of what he says he observed on 17 December 2013 when X was late returning to the parties’ motor vehicle at the end of the school Christmas concert. It is the Husband’s evidence the Wife became enraged, screamed at X and then punched him five times such that he, Y and Z who witnessed this “assault” became terrified and were crying uncontrollably.
The Wife denies absolutely the Husband’s description of what occurred on the evening of 17 December 2013. It is her evidence that when X returned to the car she was angry with him as she did not know where he had gone and was very worried about him. She agrees that she was angry with him and that she slapped him on his leg once only and that at no time was he or any of the other children in tears as a result of this incident.
The Husband also raises concerns that the Wife swears at the children and socially isolates them as she has trouble making social connections and as such has few friends and a poor relationship with her family. The Husband further alleges that since separation the Wife has been denigrating him to the children and undermining their relationship with him.
The Wife denies all these allegations as made by the Husband. It is her evidence that she does not swear at the children and has never done so. It is her further evidence that she has many friends who she sees regularly and that she has a close and loving relationship with her parents and sister to the extent that her sister purchased an investment property after separation when it became apparent that the Wife was unable to obtain rental accommodation otherwise so that the Wife could rent that property from her.
It is the Wife’s evidence that contrary to the Husband’s claims, she encourages the relationship between X, Y and Z and the Husband to the extent that at times she has actually defended him to them when they have been critical of him after spending time with him.
Both Dr E and Mr V found the Wife to be genuine and her account of her relationship with the Husband and her relationship with X, Y and Z to be frank and believable.
Mr V sets out in his report that notwithstanding the concerns raised by the Husband, none of them figured in any of his discussions he had with X, Y and Z. Mr V reports that despite him asking at times leading and inappropriately suggestive questions of the children, they at no time raised any of the concerns with him that were raised by the Husband. Mr V notes that each of the children told him that the Wife is kind, loving, affectionate and caring and that they trust her.
Mr V notes that in fact it was the Husband that the children referred to as at times being prone to anger, more intolerant and being “a bit more mean.”
It is Dr E’s opinion that the Wife impressed as straightforward and caring and that in contrast to the Husband’s description of the Wife as someone who was emotionally removed, distant, process driven and unloving to the children, the Wife proved to be a direct contrast to his description. Dr E noted that the Husband’s description of the Wife may well be one that more fits him than her.
There is no doubt in my mind that the Husband genuinely believes that the Wife assaulted X on the evening of 17 December 2013. It is interesting to note however that with every telling of this event, starting with his affidavit sworn on 14 April 2014, his then description of the events to Dr E and Mr V and finally in his trial affidavit sworn 27 April 2015, the Husband’s description of the Wife’s behaviour on this evening becomes more dramatic and more serious. This does raise the question of whether this incident is becoming more and more inflated in the Husband’s mind with the passage of time.
Whatever occurred on the evening of 17 December 2013, I am satisfied that it was nowhere near as serious as is painted by the Husband. More relevantly it is clear that this incident has left no impression whatsoever on X or on Y and Z and that they are in no way fearful of the Wife.
When giving his evidence, the Husband struggled with any proposal put to him that explained the behaviours observed by him of the children when they were spending time with him, whether that be swearing, comments made by X about Judges deciding where the children live or Y behaving aggressively towards him, that did not lay blame at the feet of the Wife for these behaviours.
For example, when it was suggested to the Husband that X may well have been told by someone in his class that it would be the Judge who would decide where he lives after X disclosed his parents had separated, the Husband was sceptical of this being the basis of X’s knowledge. When the Husband subsequently gave evidence that X had mentioned to him the possibility of spending equal time with each of his parents because that was what a boy in X’s class had told him he was now doing as his parents had separated, the Husband still could not embrace the possibility that as part of the discussion X had with his friend, it may well have been his friend who told X that it is the Judge that decides where you live.
When it was suggested to the Husband that Y’s acting out when spending time with him could be reflective of Y not coping particularly well with his parents’ separation or that Y was angry with his father for the ongoing litigation or Y’s perception that the Husband was angry or being mean to his Wife, the Husband could not contemplate this as a cause for Y’s behaviour and again put forward his belief that Y was acting this way because his mother was putting him up to it.
It is Mr V’s evidence that he believes the Wife is supportive of X, Y and Z’s relationship with the Husband and that this is borne out by their ongoing positive and loving relationship with the Husband and the express wishes of all three children to continue to spend time with the Husband. It is Mr V’s evidence that if there is a parent undermining a child’s relationship with the other parent this will manifest itself in comments made to him by that child or in the child being reluctant to spend time with the other parent.
In all these circumstances I am satisfied that the Wife is a loving, caring and supportive parent who poses no risk of physical or emotional harm to her children. Further, I am satisfied that she is supportive of X, Y and Z having a relationship with the Husband and this is borne out by them having spent ongoing and regular time with him since the parties separation some fifteen months ago.
In these circumstances, I am satisfied that X, Y and Z are not at risk of physical or psychological harm in the care of either of the parties.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the court must consider when determining what is in the child’s best interest.
Each of the matters set out under that section will be considered in turn where applicable in this matter.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
Mr V clearly states in his report and in his viva voce evidence that X, Y and Z all express a desire to continue to live primarily in the Wife’s care and spend regular time with the Husband.
It is Mr V’s evidence that the wishes expressed by X, Y and Z reflect their experience and understanding of their Wife as their primary carer and of she being their principle source of security.
In Mr V’s viva voce evidence, Mr V notes that X, Y and Z have two special people in their lives who they love and rely on being the Wife and the Husband but it is their mother who is “just a bit more special” to them.
Whilst the Husband questioned the validity of X, Y and Z’s comments to Mr V as being influenced by the Wife, it is Mr V’s clear evidence that he believes the children’s comments to him to be genuine and that this was borne out by his observation of their interactions with the Wife and the Husband.
I am satisfied that the wishes expressed by X, Y and Z to live primarily in their mother’s care are a genuine reflection of their wishes and that considerable weight should be given to them.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child).
As has been clearly set out in this judgment, X, Y and Z have a close and loving relationship with both of the parties.
It is the Wife who X, Y and Z perceive as their primary carer and it is the Wife that they primarily look to for their safety and security. The Wife is the base from which they explore the rest of the world.
This observation of the Wife as X, Y and Z’s primary carer should not be seen in any way to down play the importance of the relationship that X, Y and Z have with the Husband who is also an extremely important person in each of these children’s lives.
It is the Wife’s evidence that X, Y and Z have a positive relationship with their extended maternal family including their grandparents, their aunt and young cousin, A.
Whilst the Husband gave evidence that the Wife has a difficult relationship with her extended family, it became apparent during the giving of the Husband’s evidence that it was the Husband who has a very strained relationship with his extended family. On the Husband’s own evidence it has only been in very recent times that he has reconnected with his sister who he had not spoken to for over ten years. Similarly the Husband has only recently spent time with his father who he has not had a particularly close relationship for quite some time. It is also the Husband’s evidence that he has not had any contact with his brother for many, many years. In these circumstances it is difficult to know what relationship X, Y and Z now enjoy with the extended paternal family.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child;
(iii) to communicate with the child.
Since separation, X, Y and Z have lived in the Wife’s primary care and have spent consistent and regular time with the Husband.
The parties’ communication is very poor and this has been exacerbated by the ongoing litigation.
There was a recent issue between the parties where they were unable to agree what lenses X required to assist with his sight. As a result of their inability to agree on this issue, the Wife unilaterally paid for and organised the necessary intervention.
It will be important for X, Y and Z going forward that the parties improve their communication. Given the young ages of their children, the parties have a lot of parenting yet to do.
Section 60CC (3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
I am satisfied that both parties have fulfilled their obligation to maintain X, Y and Z.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
If the Court were to make Orders changing the primary care of X, Y and Z from the Wife to the Husband, the Court would have concerns about the emotional impact on them given the Wife has been their primary carer for all their lives and their express wishes and expectations that they will continue to live in the Wife’s primary care.
Section 60CC (3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
Both parents live in close proximity to the other and there is no practical difficulty in X, Y and Z being able to spend time with each of their parents. It is clear X, Y and Z move easily between their parent’s respective homes.
Section 60CC (3) (f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied that both parties have the capacity and are able to meet X, Y and Z’s emotional and intellectual needs.
However, Mr V reports that X, Y and Z are aware of the Husband’s negative opinion of the Wife and all three children express the wish that the Husband stop this behaviour.
Whilst the Husband denies that he has exposed X, Y and Z to his negative views of the Wife, he needs to listen to what his children are saying and ensure that he better protects them from his negative views of the Wife into the future.
As has been already noted in this judgment, it is very important for the future well-being of X, Y and Z that the parties improve their current poor communication to avoid unnecessarily exposing their children to ongoing conflict.
Section 60CC (3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant
Not applicable.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
Both the Wife and Husband are responsible, committed parents who love their children and want what is best for them.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family.
The Husband’s allegations in relation to the Wife and in particular the incident of 17 December 2013 where he alleges she assaulted X has been well discussed in this judgment.
I am satisfied that X was not subjected to physical abuse by the Wife on the evening of 17 December 2013 or otherwise.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Not Applicable.
Section 60CC (3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the majority of parenting cases, the Court seeks to make Orders that set up a blue print for the children’s future living arrangements such that the parties are able to focus on the parenting of their children and avoid the emotional and financial cost of ongoing litigation. This is such a matter.
In particular it is hoped the Husband accepts the findings of the Court and focuses on ensuring his positive and loving relationship with his children continues into the future.
Section 60CC (3)(m) any other fact or circumstance that the Court thinks is relevant.
The Independent Children’s Lawyer supports the Wife’s proposal for X, Y and Z’s ongoing living arrangements.
The Independent Children’s Lawyer expresses the view that it is in the best interests of X, Y and Z that they continue to live in the primary care of the Wife and spend ongoing regular significant and substantial time with the Husband.
In relation to the suggestion by Mr V that it may be in the best interest of X, Y and Z for their time with the Husband to be consolidated so that they spend block periods of time with each of the parents, the Independent Children’s Lawyer did not express a strong view.
Finally, on the question of parental responsibility, the Independent Children’s Lawyer, whilst somewhat concerned about the parties’ current inability to communicate effectively, supports the parties’ application for equal shared parental responsibility.
Presumption of Equal Shared Parental Responsibility
Section 61DA of the Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
In this matter, both parties are seeking Orders that they have equal shared parental responsibility for X, Y and Z.
Whilst the Husband makes allegations the Wife has physically abused X, Y and Z, and X in particular, the Court is satisfied she has not abused the children.
Whilst the parties concede their current communication is poor as evidenced by their recent difficulty in agreeing on X’s glasses, they also give evidence of being able to accommodate some flexibility around the times that X, Y and Z spend with each other, an ability to both attend their children’s extra-curricular activities and school events and to exchanging information relevant to the children in a timely manner.
I am satisfied that in this matter the presumption of equal shared parental responsibility is not rebutted and orders should be made that the parties have equal shared parental responsibility for X, Y and Z.
Consideration of Equal Time or Substantial and Significant Time
Where parties have equal shared parental responsibility for a child, section 65DAA of the Act requires the court to consider the child spending equal time or substantial and significant time with each parent.
In this matter, neither party is proposing an equal time arrangement. Given the ages of X, Y and Z and the parties current communication difficulties, orders for equal time would be inappropriate.
However, each parties’ proposal provides for the other parent to spend significant and substantial time with the other.
Conclusion
This matter relates to the future living arrangements for the parties’ three children, X, Y and Z.
X, Y and Z have lived in the primary care of their mother since birth. During the parties relationship the parties put into place by agreement a somewhat traditional arrangement whereby the Wife was the primary parent and homemaker and the Husband was the income earner and financial support of the family.
Since the parties physically separated in May 2014, X, Y and Z have continued to live in the primary care of their mother and spend ongoing regular time with their father each alternate weekend from after school Friday to before school on Monday, for dinner each Wednesday night as well as half of the school holidays.
The Husband is now seeking orders that X, Y and Z live primarily in his care and spend time with the Wife each alternate weekend as well as for dinner each Tuesday and Thursday in the off week. He also proposes a continuation of the sharing of school holidays and special occasions.
The Wife opposes the Husband’s application and is seeking orders for X, Y and Z to continue to live primarily in her care and for them to spend time with the Husband each alternate weekend from after school Friday to before school Monday, overnight Wednesday in the off week, for half school holidays and on special occasions.
It is the Husband’s evidence that he believes X, Y and Z to be at risk of harm if they were to remain primarily in the Wife’s care on the basis of his allegations that the Wife is physically violent towards the children, is abusive and emotionally distant, socially isolates the children because of her inability to make friends or have a positive relationship with her family and that she has been undermining his relationship with the children since separation.
In particular, the Husband makes reference to an incident he says occurred on 17 December 2013 when the Wife became extremely angry with X when he was late returning to the family car after his school concert and that she screamed at him and punched him five times in front of Y and Z.
The Wife categorically denies the allegations made by the Husband. It is her evidence that on the evening of 17 December 2013, X was late to the car and she did not know where he was and so she was angry with him. She agrees that she told him off and that she slapped him on the leg. She denies the Husband’s allegations that he, his brother and sister were terrified and were crying uncontrollably but does say they were all pretty quiet after X had been told off by her.
The Wife also denies that she has ever sworn at or abused her children and it is her evidence that she is a loving, nurturing and caring mother who has a very positive and loving relationship with her children.
The Wife categorically denies that she has in any way undermined the children’s relationship with the Husband and to the contrary, says there have been occasions where she has defended the Husband to the children when they have been inappropriately critical of him.
In the psychiatric assessment of the parties prepared by Dr E he found the Wife to impress as utterly genuine and her account of her relationship with the Husband and of her parenting to be frank and believable.
Dr E notes that the Wife denies the allegations that she was physically and emotionally abusive of the children and he found her account in that regard to be convincing and genuine and that she impressed him as someone who dearly loves her children. He concluded that she poses no risk to X, Y and Z.
Dr E further observed that in contrast to the Husband’s description of the Wife as someone who was emotionally removed, distant, process driven and unloving to the children, the Wife proved to be a direct contrast to that description and that if anything the description given by the Husband of the Wife may well be one that fits the Husband better than the Wife.
In the family report prepared by Mr V and in his viva voce evidence he notes that each of X, Y and Z describe the Wife in unequivocally positive terms. Mr V notes that X, Y and Z love and trust the Wife and depend and rely on her because she has always been there.
It is Mr V’s further evidence that none of the concerns raised by the Husband in relation to the Wife’s parenting figured in any of his discussions with X, Y and Z and if anything the children describe the Husband as the parent who is more intolerant, more prone to anger and as being a bit more mean.
Mr V is satisfied that from the perspective of X, Y and Z the Wife presents as their primary carer and as the person with whom they wish to primarily live.
It is Mr V’s evidence that he believes that the views presented by the children in this regard are genuine and are based on their own experiences of living with their mother and father and that they have not been influenced by the Wife.
Mr V is also very clear in his evidence that he believes the Wife to be supporting X, Y and Z’s relationship with the Husband. This is evidenced by their ongoing loving relationship with the Husband and their clearly expressed desire to continue to spend regular and meaningful time with him.
As Mr V in his viva voce quite succinctly summed it up, “if the children’s current living arrangements are not broke why change them.”
It is apparent from the Husband’s evidence, both in his affidavit material and in the witness box, that he is somewhat fixated on the events of the evening of 17 December 2013 and his belief that this shows the Wife to be a risk to the children. I am satisfied this event has become more and more inflated in the Husband’s mind with the passage of time such that he is unable to accept that it did not occur other than as he has described. More importantly the Husband is unable to accept that the evening of 17 December 2013 holds absolutely no significance in the minds of X, Y and Z who continue to see their mother as the person they most trust and the one they would turn to for their safety and security.
I am satisfied that it is in the best interests of X, Y and Z that they continue to live primarily in their mother’s care and that to change their primary care from the Wife to the Husband would cause them considerable distress and psychological harm.
Whilst Mr V posited that it might be appropriate at this time to consolidate the time X, Y and Z spend with the Husband into a single block period of time, I am of the view that they are now well settled into a routine where they see their father on a weekly basis and it is not in their best interests to disrupt this routine.
I am therefore satisfied that the proposal put by the Wife that X, Y and Z live with her and spend alternate weekends with the Husband from after school Friday to before school Monday and each alternate Wednesday night in the off week is the appropriate arrangement for them.
I am also satisfied that an Order for equal shared parental responsibility should be made and repeat the observation that it is incumbent on both parties to make every endeavour to improve their current poor communication into the future.
Finally, both parties have put forward very similar proposals in relation to the sharing of holidays and special occasions and Orders will be made which reflect in general the position of the parties in relation to those arrangements.
Property Matters
The matters relevant to this aspect of the matter are set out in the introduction and background of this judgment.
In addition to the affidavits relied on by the Husband referred to in paragraph 37 herein, the Husband also relies on his Financial Statement sworn 24 April 2015.
In addition to the affidavits relied on by the Wife referred to in paragraph 63 herein, the Wife relies on her Financial Statement sworn 11 May 2015.
The Court also heard brief viva voce evidence by telephone from
(country omitted) from Mr O, the solicitor with the conduct of the estate of the Husband’s late mother.
It is Mr O’s evidence that the Husband will receive approximately $85,000 Australian from his late mother’s estate and that he anticipates the Husband shall receive his inheritance no later than late July early August 2015.
The Issues
Having read the material relied upon by the parties in these proceedings, heard their evidence, considered their proposals and having heard the submissions made on their behalf, the issues requiring determination of financial matters are as follows:
(a)
What, if any, should be the adjustment made in the Husband’s favour arising from his initial contribution from the
(country omitted) property;
(b)Should the inheritance by the Husband from the estate of his late Mother be included in the pool of assets for division between the parties or should it be treated as a financial resource of the Husband;
(c)
What adjustment should be made in the Wife’s favour for
s 75(2) factors and in particular;
(i)the disparity in the parties earning capacity;
(ii)the Wife’s primary care of X, Y and Z; and
(iii)if the Court determines the Husband’s inheritance be treated as a resource of the Husband, the benefit to the Husband of that inheritance.
The Law
Section 79 of the Family Law Act 1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Section 79(2) of the Act provides that:
The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under section 75(2) of the Act are as follows:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The High Court in the matter of Stanford v Stanford [2012] HCA 52 held that prior to making orders for the division of the property in which the parties have an equitable interest in accordance with the provisions of section 79 of the Family Law Act 1975 (“the Act”), the Court must first determine that is just and equitable that the Court make such orders.
The High Court in Stanford (supra) held that in the majority of matters the decision as to whether it is just and equitable for the court to make property orders is easily resolved by the breakdown of the marital relationship and the mutual desire of both parties for orders altering their respective property interests.
This is such a matter, and thus it is apparent it is just and equitable that orders be made adjusting property matters between the parties.
Prior to the decision in Stanford (supra), a trial judge would follow the four step approach in determining how to alter property interests between the parties as articulated by the Full Court in Hickey and Hickey and Attorney General for the Commonwealth of Australia [2003] FamCA 395.
The four step process set out in Hickey is as follows. Firstly, the Court will determine the nature of the property pool and attribute valuations. Secondly, the Court considers the contributions of the parties to the property pool including direct and indirect financial contributions and non-financial contributions often in the form of homemaker or parent. Thirdly, and after considering entitlements based on contributions the Court determines whether any further adjustments to either parties entitlement is proper, given the considerations under s.75(2) of the Act. Finally, the Court stands back and considers whether the proposed division of the property is just and equitable pursuant to section 79(2) of the Act.
The High Court in Stanford (supra) and subsequently the Full Court in Bevan and Bevan [2013] FamCAFC 116 observed that this four step approach should not be rigidly followed.
However, the Full Court in Bevan (supra) also indicated that in the majority of property cases, the four step approach is an appropriate manner in which to approach the determination of the division of properties between parties once the Court is satisfied that such division is just and equitable.
I am satisfied that this is a matter where the four step approach of Hickey is the appropriate approach to be taken to determine a just and equitable division of property between the parties.
Assets and Liabilities
The Husband’s inheritance from his late mother’s estate
There is no doubt that the inheritance shortly to be received by the Husband is property for the purposes of the Act. The question that arises however is how that property should be treated.
It is submitted on behalf of the Husband that in circumstances where the property will be received after separation and where the Wife made absolutely no contribution to that property, it should be excluded from the pool of assets available for distribution between the parties.
The Full Court in In the Marriage of Bonnici [1991] FamCA 86 in which the Husband inherited approximately $350,000 shortly prior to the parties separation held at 43 and 44 as follows:
[43] A property does not fall into a protected category merely because it is an inheritance. On the other hand, if there are ample funds from which an appropriate property settlement can be made and a just result arrived at, then the fact of a recently acquired inheritance would normally be treated as an entitlement of the party in question.
[44] The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances. Such circumstances might include the care of the testator prior to death by the Husband or Wife as the case may be or other particular services to protect the property. See James & James (1978) FLC 90-487
In this matter, the Wife had little interaction with the Husband’s late mother during the parties’ relationship. The Husband’s late mother lived in (country omitted) and rarely visited the parties in Australia. It is my understanding it was only the Husband and the children who visited the Husband’s mother in (country omitted).
It is therefore apparent that this is not a matter which falls into the category of very unusual circumstances as described in Bonnici such that this Court should treat the inheritance by the Husband from his late mother’s estate other than an entitlement of the Husband.
The parties are otherwise in agreement as to what constitutes the matrimonial pool for the purposes of these proceedings. It is as follows:
Matrimonial Assets and Liabilities
Property C
$755,000
Partial property settlement
Husband:
Wife:
$92,613.15
$127,613.15
Total:
$975,226.30
Superannuation
Husband’s Superannuation
(omitted) Super $139,043.00
(omitted) Rollover Fund $14,296.00
(omitted) $803.00
a) Husband’s Total Superannuation
b) Wife’s Superannuation ((omitted))
$154,142.00
c) $41,775.00
Total Superannuation
$195,917.00
The Husband’s Inheritance
$85,000 E
Contributions
It is common ground that at the commencement of cohabitation the Husband owned the (country omitted) property and the former matrimonial home. The Husband purchased the former matrimonial home by borrowing $100,000 which loan was secured against the (country omitted) property.
Shortly prior to the commencement of cohabitation the Husband borrowed a further $100,000 which was secured against the former matrimonial home. Those monies were utilised to effect renovations on the Former Matrimonial Home.
Again it is common ground that the parties and the Wife’s father all did considerable work to assist in the renovations to the former matrimonial home.
In 2001, the Husband sold his (country omitted) property for (omitted). The proceeds of sale from that property were used to discharge the mortgage on the (country omitted) property, to fully discharge the mortgage over the former matrimonial home and the small amount of money remaining after the discharge of those mortgages was placed in a term deposit.
It is submitted on behalf of the Husband that the impact of the Husband’s initial contribution is substantial in that it enabled the parties to live mortgage free for a large proportion of their relationship such that at the breakdown of their relationship the parties not only had an unencumbered property but had been able to accumulate almost $220,000 in savings over the course of their relationship. This was in circumstances where for much of that time the parties were a single income family given the parties decision on the birth of their children that they would each assume somewhat traditional roles with the Wife as the homemaker and the Husband as the breadwinner.
It is therefore submitted on behalf of the Husband that there should be an adjustment in his favour for contributions of 25%.
Whilst conceding the Husband’s initial contribution, it is submitted on behalf of the Wife that this contribution must be looked at through the prism of the contributions made by both parties through the entirety of their relationship and post separation.
The Wife made reference to the Full Court decision of Pierce & Pierce [1999] FLC 92 844 where they held at paragraph 85:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution…”
It is submitted on behalf of the Wife that whilst the Husband’s initial contribution of approximately $200,000 clearly helped to establish the parties financially, the Wife’s contributions as income earner prior to the children’s births, her major role as homemaker and parent to the parties three children and her primary care of the three children post separation are such that the parties contributions should be considered as equal.
In further support of this submission the Wife argues that since separation she has been required to expend $50,000 of the partial property settlement received by her in support of herself and X, Y and Z in the payment of rent, medical expenses and day to day living expenses whilst the Husband has had the benefit of continuing to live in the parties’ unencumbered matrimonial home.
There is no doubt that the Husband’s initial contribution gave the parties financial security relatively early in their relationship such that they were afforded the relative luxury of an unencumbered home and the ability to save.
It is also apparent that during the parties relatively long relationship of some 16 years both made considerable contributions to the family and the family’s financial security.
Post separation, the Wife has had the primary care of the parties’ three children and has by necessity expended a proportion of her partial property settlement in their support whilst the Husband has had the benefit of living in the unencumbered former matrimonial home.
In these circumstances I am satisfied that there should be an adjustment in the Husband’s favour for his initial contribution and that adjustment should be 10%.
Section 75(2) Factors
It is submitted on behalf of the Wife that there should be an adjustment in her favour for s 75(2) factors on the basis of the Husband’s greater income earning capacity, her primary care of the parties’ three children and because of the Husband’s financial resource being his recent inheritance from his late mother’s estate.
Whilst the Wife has tertiary qualification she was out of the paid workforce from 2004 until after the parties’ physical separation in May 2014. The parties had mutually agreed that with the birth of their children the Wife would leave the work force and assume the role of home maker and parent.
Since physical separation, the Wife has retrained as a (occupation omitted) and is working on a part time basis during school hours and on the weekends and during school holidays when the children are in the Husband’s care. This enables her to be available to care for X, Y and Z.
It is the Wife’s evidence that she earns approximately $300 per week or $16,000 per annum.
The Husband is employed on a full time basis within the (employer omitted) as a (occupation omitted) with (employer omitted) and earns $90,000 per annum.
It is therefore submitted on behalf of the Wife that given the marked disparity in income earning capacity, her primary care of the children as well as the Husband’s inheritance, there should be an adjustment of 20% in the Wife’s favour for s 75 (2) factors.
It is submitted on behalf of the Husband that there should not be an adjustment in the Wife’s favour because of disparity in income earning capacities.
It is submitted on behalf of the Husband that the Wife has tertiary qualification and is therefore qualified to obtain employment at a much higher level of remuneration than that which she is choosing to currently earn as a part time (occupation omitted).
The Husband conceded that in the event the Court ordered the Wife have the primary care of X, Y and Z there should be an adjustment pursuant to s 75(2) in the Wife’s favour.
It is also conceded by the Husband that there should be an adjustment in the Wife’s favour as a result of his imminent receipt of the inheritance from his late Mother’s estate and that the adjustment in the Wife’s favour in that regard should be 2 %.
The Husband’s Counsel in his closing submissions did not attribute an actual figure for the adjustment in the Wife’s favour for s 75(2) factors but indicated that on an overall basis if the Court were to make Orders for X, Y and Z to live in the Wife’s primary care, there should be an adjustment overall of the parties realisable assets on the basis that the Wife receive 52 % and the Husband receive 48 %.
I am satisfied that there should be an adjustment in the Wife’s favour pursuant to s 75(2) factors. The Wife has the primary care of the parties’ three young children and because of this the Wife has chosen a form of employment that enables her to care for the children when they are not at school. As such her earning capacity is significantly less than that of the Husband in the short to medium term.
Further the Husband has the benefit of his recent inheritance from his mother’s estate and whilst not a large amount of money, it is not an insignificant amount of money either.
In all these circumstances I am satisfied that there should be an adjustment in the Wife’s favour for s 75(2) factors of 20 %.
Superannuation
Both parties are in agreement that orders should be made equalising the parties’ respective superannuation entitlements and in those circumstances a splitting order will be made in the Wife’s favour with a base amount of $56,183.50.
Conclusion
As can be seen, I have determined that the parties realisable assets exclusive of the Husband’s inheritance should be divided such that the Wife receive 60% of same and the Husband receive 40% of same.
This would mean that the entitlement of the Wife to the realisable assets is $585,135. Given the $127,615 already received by her, the Husband would need to pay the Wife the sum of $457,520 if he wishes to retain the former matrimonial home.
It is the Husband’s evidence that he wishes to retain the former matrimonial home. Whilst the amount payable to the Wife by the Husband so that he retains the former matrimonial home is not a small amount of money, given the former matrimonial home is unencumbered, the Husband’s recent inheritance and his secure employment and income, he will have the capacity to borrow an amount sufficient to pay out the Wife.
Accordingly, Orders will be made which will make provision for the Husband to pay the Wife the sum of $457,520 within sixty (60) days failing which the former matrimonial home will be sold and the Wife shall receive that amount from the proceeds of sale together with penalty interest.
An Order will be also made for a superannuation split in the Wife’s favour as has been agreed between the parties. I note the Husband’s superannuation fund has been accorded procedural fairness.
Just and Equitable
In the context of considering whether this outcome is just and equitable for the parties, I am satisfied that it enables the Husband to retain the former matrimonial home and also enables the Wife sufficient capital to re-establish a home for herself, X, Y and Z.
For these reasons I am satisfied this outcome is just and equitable.
I certify that the preceding two hundred and sixty seven (267) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 1 October 2015
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Fiduciary Duty
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Injunction
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Jurisdiction
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Remedies
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Standing
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