Crosby and Crosby

[2020] FCCA 2482

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROSBY & CROSBY [2020] FCCA 2482

Catchwords:
FAMILY LAW – Property – application for alteration of interests in property pursuant to s 79 of the Family Law Act – where the husband is currently unemployed because of COVID-19 – where unable to assess the husband’s employment prospects in the next couple of years – where the husband may not be able to make a significant contribution to the cost of caring for the children while unemployed.

Legislation:

Family Law Act 1975 (Cth) ss.75(2), 79

Evidence Act 1995 (Cth)

Applicant: MR CROSBY

Respondent: MS CROSBY

File Number: DNC 270 of 2019

Judgment of: Judge Young

Hearing date: 5, 6 & 7 August 2020

Date of Last Submission: 7 August 2020

Delivered at: Darwin

Delivered on: 11 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Tippett

Solicitors for the Applicant: Maleys Barristers & Solicitors

Counsel for the Respondent: Mr Gould

Solicitors for the Respondent: Coonan & Coonan Legal

ORDERS

THE COURT ORDERS BY CONSENT:

Parenting

Equal Shared Parental Responsibility

1. That the parents have equal shared parental responsibility for X, born 2010 and Y, born 2012 ("the children").

Children Live with Mother

1. That the children live with the mother in Darwin.

2. The parents have sole responsibility for the day to day care welfare and development of the children while the children are in their respective care.

Time Spent Arrangements

1. That the children shall spend time with the father at all times as can be agreed between the parents, but in the event of default of agreement, as follows:

   (a)During the school term and provided the father is not working in a fly-in, fly-out role and is living in Darwin, from Friday after school to before school Monday in each alternate week, with such time to take place in Darwin;

   (b)During the school term and if the father is working in a fly in, fly out role or is otherwise unable to spend time with the children per order 4( a) due to his work roster and provided that the father is living in Darwin, for two weekends per month from Friday after school to before school Monday, with the father to provide the mother no less than 14 days' notice of the two weekends he elects for the children to spend time with him with such notice to be provided to the mother via email;

   (c)for the first half of each Northern Territory gazetted school holiday period in even numbered years (2020 and alternate years thereafter) with the first half to commence at 3.00pm on the last gazetted day of the school term and conclude at midday of the mid-point of the school holiday;

   (d)for the second half of each Northern Territory gazetted school holiday period in odd numbered years (2021 and alternate years thereafter) with the second half to commence at the mid-point of the school holiday and conclude 2 days prior to the commencement of the next school term, unless the father is in Darwin (or the location where the children are residing with the mother at the time), then the conclusion of time is 12:00pm the day before the commencement of the next school term; and

   (e)such other times that the father is able to spend time with the children when the mother is required to travel overseas for training or work-related purposes.

2. That the father's overnight time spent with the children shall commence after the father has provided written confirmation to the mother that he has secured an appropriate residence where the children will have their own sleeping area and be afforded privacy, pending the father commencing spending overnight time with the children the father will ensure the children are returned to the mother's care by no later than 6pm on the days the father spend times with the children.

3. For the purposes of time arrangements pursuant to the preceding paragraphs:

   (a)in the event that the father is able to spend time with the children during any time that the mother is required to travel overseas for training or for work-related reasons, the father will confirm same with the mother within forty-eight (48) hours of the mother's request;

   (b)to effect such arrangements, the mother will communicate to the Father the details of her travel as soon as same are known to her and within no less than forty-eight ( 48) hours of the mother becoming aware of the details of her travel.

Special Days

1. That paragraph 4 is suspended to allow the parents to spend the following specials days with the children, provided both parents are in Darwin and within a radius of 100km:

   (a)In 2020 and each even year thereafter, with the father from 9:00am Christmas Eve to 2:00pm Christmas Day and with the mother from 2:00pm Christmas Day to 5:00pm Boxing Day;

   (b)In 2021 and each odd numbered year thereafter, with the mother from 9:00am Christmas Eve to 2:00pm Christmas Day and with the father from 2:00pm Christmas Day to 5:00pm Boxing Day;

   (c)With the parent with whom the children are not then spending time on the child's birthday from after school to 7:00pm during school term or 9:00am to 2:00pm during non-school days;

   (d)With the mother on the mother's birthday from after school to 7:00pm during school term or 9:00am to 2:00pm during non-school days;

   (e)With the father on the father's birthday from after school to 7:00pm during school term or 9:00am to 2:00pm during non-school days;

   (f)With the mother on Mother's Day from 9:00am to the before school the next day;

   (g)With. the father on Father's Day from 9:00am to before school the next day.

Travel overseas or interstate and the Children's Passports

1. That either parent may travel interstate or overseas with the children during any period of their time in accordance with these orders provided that:

   (a)a copy of the itinerary including details as to destination and any accommodation and communication details (if different) are given to the other parent not less than 28 days prior to any international travel and not less than 14 days prior to any interstate travel;

   (b)any change of travel arrangements during travel are immediately notified to the non-travelling parent;

   (c)a copy of the medical insurance policy be provided to the non-travelling parent.

2. In the event that either parent intends to travel during time that the children would spend with the other parent pursuant to these orders:

   (a)the travelling parent will first request the approval of the non-travelling parent to travel with the children by providing to the non-travelling parent all details of the proposed travel;

   (b)the request to travel will be sent via email to the non-travelling parent who will have seven (7) days to consider such travel request;

   (c)the response to such travel request will be provided by the non-travelling parent to the travelling parent via email;

   (d)in the event that the non-travelling parent does not agree to the travel, the travel will not occur;

   (e)in the event that the non-travelling parent agrees to the travel, the travelling parent must:

   (i)propose an equivalent amount of time for the children to spend with the non-travelling parent during the next holiday period;

   (ii)ensure that such time occurs during the next holiday period;

   (f)the time the non-travelling parent would have spent with the children will be suspended for the period of such travel and adjusted in the next holiday period.

Renewal of passports

1. In the event that the child/ren's passports require renewal, the mother will arrange the renewal of the passport, providing the renewal documentation to the father and each parent will sign all documentation as may be required to lodge the renewal application within seven (7) days of a written request to do so.

2. In the event that one parent refuses to sign or fails to sign and return the renewal for the child/ren's passport to the parent making the request, within seven (7) days of a further written request to do so then the Registrar or Deputy Registrar of the Federal Circuit Court of Australia Darwin Registry is hereby appointed under section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

3. The cost of the children's passport renewal will be met by the parents in equal shares of one-half and to effect such arrangements:

   (a)the parent holding the passport will initially meet the cost of such renewal;

   (b)they will provide the invoice for renewal to the other parent;

   (c)the other parent will arrange reimbursement to an account nominated by the parent within seven (7) days of receiving the invoice.·

Possession and use of passports

1. The Mother will retain possession of the children's Australian and Country A passports, including renewed passports;

2. In the event that the Father seeks to travel overseas with the children, the Father will provide the Mother notice of such travel in accordance with order 8 herein, the Mother must provide the Father the passports in her possession no later than 14 days prior to the travel commencing.

3. The children's passports shall be returned by the Father to the Mother upon the children's return to Australia at the same time that the children are returned into the Mother's care.

4. To enable the children to travel:

   (a)the parents will ensure that all necessary visa requirements, where necessary, are met;

   (b)the parents will provide the children's passports in accordance with the requirements of the country issuing such visa.

Telephone and Skype Communication

1. The children and the Father communicate by telephone and Skype or such other electronic means as are available to the children, at all reasonable times whether initiated by the Father or by the children and failing agreement:

   (a)Each Monday, Wednesday, Friday and Sunday between 5:00 pm and 6:00pm Darwin time, providing the children are not already spending time with the Father on that day and are not attending extra-curricular activities, otherwise another day as nominated by the Mother.

2. When the children are spending time with the Father, the Mother and the children be at liberty to communicate with each other, by telephone, Skype or such other electronic means as are available to the children, at all reasonable times whether initiated by the Mother or by the children and failing agreement:

   (a)Each Friday and Sunday between 5.00pm and 6:00pm.

Responsibilities

1. Each party is to keep the other informed of their mobile telephone number, the children's mobile telephone number, email and residential address at all times and inform the other in writing of any changes to these details within forty-eight (48) hours of such change.

2. Each parent keep the other informed of the names and addresses of any treating medical practitioner, other health practitioner and/or dental practitioner in relation to the children.

3. Each parent shall keep the other parent informed as soon as is practicable as to any significant medical or health related issue concerning the child/ren.

4. Neither parent abuse, insult, criticise or denigrate the other parent, their respective partners, their family or any other person, nor expose the children to the conflict between the parents, in the presence of, or hearing of, the child, and will use their best endeavours to ensure that no-one else does so, and will remove the said children from any environment where such behaviour is occurring.

5. During the times the children are with either parent that parent shall respect the privacy of the other parent and the children and not question, nor involve the children directly or indirectly in any discussion, about the personal life of the other parent or the household in which the children spend time, the living arrangements or any adult concerns.

Health

1. This order is an authority that each parent shall be entitled to obtain copies of the children's health-care records and to discuss matters with the children's medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.

2. Each parent is to notify the other party of all matters concerning the health of the children as soon as reasonably practicable in the case of serious illness, hospitalisation and/or accident.

Education

1. This order is an authority that each parent undertake parent / teacher interviews, to discuss the education of the children, to forward to both parties copies of all school reports and notices concerning activities to be undertaken by the children, and to permit the parties to attend any school and extracurricular activities which they are invited to attend.

Other matters

1. That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the document attached to these Orders titled "Parenting order - oblations, consequences and who can help".

AND THE COURT ORDERS:

Property

Release of injunction

1. All previous orders be discharged in their entirety.

The property at B Street, Suburb C, Northern Territory

1. Within thirty (30) days of the date of this Order (“settlement date”) the Applicant and the Respondent do all acts and things necessary to:

   (a)transfer from the Applicant to the Respondent all of the Applicant’s right, title and interest in and to the property located at B Street, Suburb C in the Northern Territory (“the B Street property”);

   (b)the Applicant and Respondent will do all acts and things and sign all necessary documents as may be required, to transfer the Applicant’s right title and interest in the B Street property to the Respondent.

2. In return for the transfer of the B Street property, the Respondent cause the Applicant to be discharged from all or any liability with respect to any encumbrance securing the B Street property, and thereafter the Respondent will release and indemnify the Applicant with respect to any and all mortgage, finance, encumbrances of whatsoever nature and kind, rates, taxes and outgoings of or with respect to the B Street property.

3. The Respondent meet the costs of and incidental to the transfer of the Applicant’s right title and interest in and to the B Street property.

4. That simultaneously with the transfer of the B Street property in accordance with these orders.

Bank Accounts

Joint account

1. That simultaneously with the transfer of the B Street property in accordance with these orders, the Applicant and the Respondent do all acts and things and sign all documentation as may be required to attend to the following:

   (a)the Respondent to receive the following cash payments, to be transferred to an account in the Respondent’s sole name, for her sole use and benefit absolutely:

   (i)$31,637 from the joint National Australia Bank, Account Number #..49; and

   (ii)$9,763 from the joint National Australia Bank, Account Number #..13.

   (b)the Applicant to receive the remaining funds in the joint National Australia Bank, Accounts #..49 and #..13, after payment to the Respondent in accordance with order 33(a); with such funds to be transferred to an account in the Applicant’s sole name, for his sole use and benefit absolutely:

   (c)the parties to close the joint National Australia Bank Accounts #..49 and #..13.

   Applicant’s bank accounts

2. That the Applicant retain for his sole use and benefit absolutely:

   (a)the D Bank Account Number #..19, #..67, #..54 and #..96;

   (b)Commonwealth Bank Account #..00, #..58 and #..31

   (c)National Australia Bank account #..02

   (d)E Bank account #..29 and #..47;

   (e)F BankCountry A account #..75, #..66 and #..05; any

   (f)any other account in the Applicant’s sole name that is not otherwise specifically referred to herein.

   Respondent’s bank accounts

3. The Respondent retain for her sole use and benefit absolutely:

   (a)National Australia Bank accounts #..92 and #..03;

   (b)F BankCountry A account #..53;

   (c)G Bank accounts #..09, #..62 and #..04;

   (d)ANZ account #..41; and,

   (e)any other account in the respondent’s sole name that is not otherwise specifically referred to herein.

Motor Vehicles

1. The Applicant retain for his sole use and benefit absolutely the motor vehicle L and motor vehicle H in his possession and registered in his sole name.

2. The Respondent retain for her sole use and benefit absolutely motor vehicle K and any other motor vehicle in her possession and registered in her sole name.

Other

1. Pending transfer of the B Street property and the closure of the National Australia Bank joint accounts, and by way of final settlement:

   (a)each party to be solely entitled to the exclusion of the other, to all property (including choses in action) which is in their possession at the time of these Orders and held/registered in their respective name including but not limited to furniture and personal effects; and

   (b)each party be solely entitled to the exclusion of the other, to any monies, shares, debentures, investments, trust property and superannuation entitlements which stand in their sole name or to their credit; and

   (c)each party forego any claim they may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to or earned by the other; and

   (d)insurance policies remain the sole property of the owner named thereon;

   (e)each party is solely liable for and indemnifies the other against liability encumbering any item of property to which that party is entitled pursuant to these orders, and any taxation liabilities associated with the property subject to these orders;

   (f)each party is solely liable for and indemnifies the other against any debt of any kind whatsoever is in their sole name; and

   (g)any joint tenancy of the parties is hereby severed immediately.

2. That in the event of a failure by either party to sign all documents and carry out all acts necessary to give full force and effect to these orders within 14 days of written request to do so, a Registrar of the Federal Circuit Court of Australia at Darwin is hereby appointed pursuant to s106A of the Family Law Act 1975 to execute any necessary documents and carry out any necessary acts to give force and effect to these orders at the expense of the defaulting party.

3. Section 81 of the Family Law Act 1975 applies to these orders and these orders finally determine the financial relationships between the parties to the marriage so as to avoid further proceedings between them.

IT IS NOTED that publication of this judgment under the pseudonym Crosby & Crosby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNC 270 of 2019

MR CROSBY

Applicant

And

MS CROSBY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for alteration of interests in property pursuant to section 79 of the Family Law Act 1975. 

3. The applicant husband is 48 years old. He was, until recently, employed as a transport worker by an Australian transport company but he was made redundant in April 2020 as a result of the COVID-19 pandemic. 

4. The wife is 43 years old and is also a transport worker.  She is employed in the Northern Territory by an emergency service.  Her taxable income last year was $163,000.  Her employment seems secure. 

1. The parties agreed that the marriage or length of cohabitation extended over 19 years from 1998 or 1999 until separation in January 2017.  The parties have two children, aged 10 and 8 years.  During the trial the parties reached agreement about parenting matters and, in summary, the consent orders provide for the children to spend time with the father from Friday to Monday while he is resident in Darwin and if he has appropriate housing. 

2. It should be noted that Mr Crosby returned to Darwin from Melbourne about a month ago and these arrangements have not actually commenced. 

3. In relation to credibility, the areas of disagreement between the parties had, by the conclusion of the trial, narrowed considerably.  However, some areas of dispute remained.  Generally, I preferred the evidence of the wife.  Her evidence was clear and forthright.  The husband, on the other hand, tended to evasiveness or unnecessary qualification from time-to-time in his answers in cross-examination. An example concerned his relationship with a Ms I, who had lent him $60,000 for legal costs and with whom he has spent considerable time, including international holidays. When asked whether he was in a romantic relationship with Ms I the husband refused to concede that and gave evidence that they were no more than “good friends.”  Little turned on this but I am satisfied that the husband’s answer was not frank.  

Contributions  

1. The parties are from Country A by birth and, as mentioned, both have spent their careers in the transport industry.  When they met the husband was apparently a transport industry instructor and the wife a student. 

2. The husband said at the beginning of the cohabitation he  owned stocks and shares worth $15,000, I assume Country A, rather than Australian, but the affidavit did not state this; cash of $28,000; and superannuation entitlements worth $40,000, totalling some $83,000.  The wife did not challenge that assessment but did challenge the husband’s claim that he owned a car worth $17,500.  She asserted that he owned a truck worth about $1,000.  The husband did say that he also owed $15,000 in respect of the car, so the net value of the two positions is not significantly different.  However, I accept the wife’s evidence about this.

3. The wife also claimed to have some savings at the beginning of the relationship but she was not specific about the amount. 

4. The husband also claimed to have provided supervision and training to the wife while she was doing her education worth, according to him, had he charged a commercial rate, some $227,000.  The wife denied that the husband had provided such education or supervision.  She said that she had paid for her own education. I accept the wife’s evidence.

5. In any event, I am not satisfied that the husband’s claim of having spent time in supporting the wife in obtaining her qualifications should be valued on a commercial basis, as he proposed, or even ascribed a cash value.

6. The husband also said that he had used his share interests, which he claimed had appreciated during the relationship, towards the purchase of the parties’ first home in Country A.  The wife did not deny that but said that the husband’s share trading had, in fact, resulted in a loss of $30,000 at one point during the marriage.  In the absence of detailed evidence about that subject, I am satisfied I am unable to make any particular finding.

7. The husband also claimed that the wife was unemployed for a period from about December 2000 to about 2002 when he supported her.  The wife did not agree with that claim butt she did say she had savings and was completing her education at the time.  Her evidence lacked detail and I accept, broadly, that the husband was the primary income earner during that period.

8. After working Region J the parties moved to Darwin in 2008 to take up further employment in the transport industry.  The husband was unemployed for a period in 2009 and 2010.  The husband’s trial affidavit suggests it was a period from October 2009 to February 2010 whereas the wife’s affidavit referred to the husband being unemployed for a period of two years.  In the absence of specific evidence, I do not feel I can make a finding about the exact period of the husband’s unemployment.

9. It appears that the husband was made redundant in July 2016 from his employment in Darwin and subsequently sought other employment, which I will turn to in a moment.

10. The wife said that during the marriage she had received a retention bonus from her employer of $150,000 which was applied to pay out the mortgage on the former matrimonial home of the parties in Darwin.  That was not challenged.

11. The husband, as I have noted, became redundant in July 2016.  He then found work again in January 2017 but that work required a move to Melbourne where he was employed by local transport company.  He remained employed by that transport company until April 2020 when he was, once more, made redundant, this time due to the COVID-19 pandemic and its effects on the transport industry.  According to the wife, the husband’s earnings in his last year of employment were $171,000.  In addition, she said he received a redundancy payment after tax of some $60,640.  There was no specific evidence about how that amount was expended.

12. The parties disagreed, somewhat, about non-financial contributions to the time of separation.  I am not able to make any particular finding about the claims and counter-claims of the parties about who cared for the children more or who was more responsible for domestic chores.

13. It appears that, for both parties, there was considerable non-working time in their employment.  For example, the wife said that she works only two or three days a month and is on standby for the rest of the time or much of the rest of the time. So it may be that these parties were not required to work particularly long hours on a monthly or, perhaps, fortnightly, or weekly basis, in which case there would be more time for the parties to spend time with the children or spend time on domestic chores.  As I said, I am unable to make a specific finding about any particular inequality in non-financial contributions during the time they lived together.

14. All in all, I find that contributions to the time of separation were equal.  While I am satisfied that the husband’s initial financial contribution was the greater, I am satisfied that the entirety of the financial contributions of the parties during the marriage or during the time of their cohabitation were equal.

15. Turning to post-separation contributions, since separation in January 2017 the wife has been primarily responsible for the care of the children as well as being in full-time employment in the transport industry.  The evidence of the husband, which was not contradicted by the wife, was that he paid child support throughout the period pursuant to a voluntary arrangement based on the calculation from an online calculator provided by the Child Support Agency.  I accept that the husband paid child support more or less in line with a child support assessment until his redundancy in April 2020.  During that period, apparently, he paid some $1,300 a month in child support.  However, his most recent Child Support Assessment is $36 a month in respect of both children.  That is some $9 a week, approximately.  Obviously, that sum bears no relationship to the real cost of caring for the children. It is apparent that since April 2020 the wife has been primarily financially responsible for the children as well.

16. An issue that involved much of the trial was the wife’s allegation that the husband had removed about $194,000 from accounts constituting savings of the parties held at the time of separation.  The position at the end of the husband’s explanation in evidence, which was not challenged by the wife, was that about $132,284 of the nominated $184,000 remained, leaving a shortfall of some $52,593.  Some $15,000 was spent by the husband on legal fees which, being an expenditure on legal fees from savings in existence at the time of separation, must be added back.  That is the only add back I am including in the balance sheet.  The balance is $37,593.  The husband said that some $8,000 was also spent on tax but the evidence about that was lacking in detail and I am not willing to take that into account.

17. While this sum should not be treated as an add back, in my view, it is money that the husband has had the benefit of and money which in equitable terms at least constitutes a joint asset.  I am satisfied that some credit must be given to the wife for the husband’s expenditure of that joint asset. 

18. In considering post-separation contributions, it should also be noted that the wife has occupied the jointly owned former matrimonial home which is free of mortgage and was free of any mortgage since separation, so she has not had the necessity to spend money on providing accommodation for herself and the children. 

19. Overall, I find that the contributions of the parties are 53 per cent by the wife and 47 per cent by the husband. 

20. I will distribute, at this stage, the balance sheet that I am satisfied reflects an agreed balance sheet of the parties:

Description	Husband	Wife	Total
Assets
1	B Street, Suburb C, NT - joint	$242,500	$242,500	$485,000
2	motor vehicle K	$27,000
3	motor vehicle L	$9,500
4	motor vehicle M	$10,000
5	ANZ account          ..41	$2,062
6	G Bank ..04	$1,720
7	“  “  62	$1,236
8	“                   “  09	$2,101
9	F Bank Country A account ..53	$1,039
10	NAB account  ..62	$265
11	NAB account  ..03	nil
12	NAB account - joint             ..49	$124,632	$124,633	$249,265
13	NAB account - joint             ..13	$9,763	$9,763	$19,526
14	NAB account  ..02	$3,921
15	CBA account  ..00	nil
16	D Bank account  ..19	$81,128
17	D Bank account  ..67	$4,136
18	D Bank account  ..96	$35
19	CBA account  ..58	$6,197
20	D Bank account  ..54	nil
21	CBA account  ..31	$10,564
22	E Bank account            ..29	$5,641
23	E Bank  account           ..47	$3,715
24	F BankCountry A       3175	$9,892
25	F BankCountry A       0666	$6,436
26	F BankCountry A        6605	nil
27	Husband’s personal effects	$2,000
28	Wife’s furniture and effects	$15,000
29	Husband NAB credit card (in credit)	$334
30	Husband’s F Bank credit card (in credit)	$4,456
31	Add-back Husband’s legal fees	$15,000
Total	$549,850	$427,319	$977,169
Liabilities
1	Wife’s ANZ credit card	$7
Total Liabilities	nil	$7
Net assets	$549,850	$427,312	$977,162
Superannuation
1	Wife’s AMP Super	$180,955
2	Wife’s N Superannuation Fund	$93,822
3	Wife’s O Pension Fund	$3,699
4	Husband’s O Pension Fund	$2,297
5	Husband’s Australian Super	$82,270
6	Husband’s AMP Super	$62,930
7	Husband’s P Fund	$137,931
Total Superannuation	$285,428	$278,476	$563,904
Total assets and superannuation	$835,278	$705,788	$1,541,066

1. Considering sub-section 75(2) factors, both parties are in good health; there was no evidence about the likely length of a career in the transport industry but I note that the husband is five years older than the wife; both are obviously highly skilled and have considerable capacity for gainful employment and the ability, once in ordinary circumstances, of earning high incomes.

2. The wife is employed and earning, as noted, a considerable income.  There is no evidence that her employment is anything other than secure.  The position of the husband is quite different.  He is presently unemployed.  He gave uncontradicted evidence that due to the COVID-19 pandemic some 2,500 transport workers in Australia and New Zealand have lost their jobs.  I accept that his employment outlook is bleak in the foreseeable future and his prospects would seem to depend on a resumption of the domestic transport industry, which I accept is likely to occur, but I cannot say when that will be. 

3. The husband has said that he proposes to reside in Darwin.  The parenting orders are made on that assumption.  However, in reality, I expect the husband’s position is more uncertain than that and he may need to travel to seek employment.  Nevertheless, the husband will need to purchase or rent suitable accommodation for himself and the children if they are to spend substantial and significant time with him.  I am satisfied that he needs to provide appropriate accommodation for those children when they spend time with him, and for himself of course.  That must be reflected in the ultimate division of assets between these parties.

4. On the other hand the wife is primarily responsible for the children.  In circumstances where the husband’s capacity to provide significant financial support for the children has disappeared, Mr Gould for the wife suggested that as the children are 10 years and 8 years old respectively, there may be 18 what he called “child support years” left, implying that the husband will be unable to assist.  I accept that the duration of the husband’s unemployment could be lengthy, even years, but I expect it is not likely to be many years.  Of course the husband is 48 years old and that may be relevant to his employment prospects as well.

5. I consider the factors relevant to section 75(2) are difficult to weigh against each other. The wife submits that an appropriate split of the asset pool, including superannuation, is 70 per cent to 30 per cent in her favour. The husband submitted, initially at least, that the split ought to be 55 per cent to 45 per cent in the wife’s favour, though later in submissions, the husband’s counsel resiled from that and suggested a 53 per cent 47 per cent split in the wife’s favour was appropriate. Weighing these factors, I consider that there needs to be a cash adjustment in the wife’s favour equivalent to about $75,000, or five per cent, to take into account that it would be likely that the husband will be unable to make a significant contribution to the cost of caring for the children for perhaps a couple of years. Overall, I consider that it is just and equitable to divide the assets of the parties in the proportion 55.5 per cent to the wife and 44.5 per cent to the husband

6. Both parties agree that the wife will retain the former matrimonial home and that any division of assets or repayment to the husband should come from the NAB joint account ..49.

7. Neither party sought a superannuation split and each party conducted their case without distinguishing between superannuation and non-superannuation assets.  In my view, this was a case where that was appropriate and has not resulted in any different outcome.  In my view, it was unnecessary to treat the superannuation interest of the parties differently.  The end result of that is set out in in the second balance sheet as follows:

Description	Husband	Wife	Total
Assets
1	B Street, Suburb C, NT	$485,000
2	motor vehicle K	$27,000
3	motor vehicle L	$9,500
4	motor vehicle M	$10,000
5	ANZ account          ..41	$2,062
6	G Bank ..04	$1,720
7	“  “  ..62	$1,236
8	“                   “  ..09	$2,101
9	F Bank Country A account ..53	$1,039
10	NAB account  ..62	$265
11	NAB account  ..03	nil
12	NAB account - joint             ..49	$217,628	$31,637	$249,265
13	NAB account - joint             ..13	$9,763	$9,763	$19,526
14	NAB account  ..02	$3,921
15	CBA account  ..00	nil
16	D Bank account  ..19	$81,128
17	D Bank account  ..67	$4,136
18	D Bank account  ..96	$35
19	CBA account  ..58	$6,197
20	D Bank account  ..54	nil
21	CBA account  ..31	$10,564
22	E Bank account            ..29	$5,641
23	E Bank  account           ..47	$3,715
24	F BankCountry A       ..75	$9,892
25	F BankCountry A       ..66	$6,436
26	F BankCountry A        ..05	nil
27	Husband’s personal effects	$2,000
28	Wife’s furniture and effects	$15,000
29	Husband NAB credit card (in credit)	$334
30	Husband’s F Bank credit card (in credit)	$4,456
31	Add-back Husband’s legal fees	$15,000
Total	$400,346	$576,823	$977,169
Liabilities
1	Wife’s ANZ credit card	$7
Total Liabilities	nil	$7
Net assets	$400,346	$576,816	$977,162
Superannuation
1	Wife’s AMP Super	$180,955
2	Wife’s N Superannuation Fund	$93,822
3	Wife’s O Pension Fund	$3,699
4	Husband’s O Pension Fund	$2,297
5	Husband’s Australian Super	$82,270
6	Husband’s AMP Super	$62,930
7	Husband’s P Fund	$137,931
Total Superannuation	$285,428	$278,476	$563,904
Total assets and superannuation	$685,774	$855,292	$1,541,066
44.5%	55.5%

1. The end result is that, from NAB account ..49, the sum of $217,628 will be paid to the husband, leaving the balance of $31,637 in the account which will be the wife’s.

2. Both trial affidavits of these parties made reference to settlement negotiations.  Both trial affidavits included a section that was headed “Attempts to resolve”. The section was included in the husband’s trial affidavit initially and the wife apparently thought it was appropriate to reply with a similar discussion. In both cases the material is irrelevant and should not have been included in an affidavit. Attempts to resolve an issue are irrelevant to a trial. They may be relevant to costs, in which case they are to be raised afterwards and separately. Reference to negotiations or attempts to resolve matters are generally inadmissible, as the Evidence Act makes clear. The danger is that by referring to those sort of things a party or parties may necessitate a judge disqualifying himself or herself from hearing a trial.

3. I note both parties annexed correspondence to their trial affidavit. That runs the risk of aggravating that very problem. I have ignored the material in the affidavit, and I have not looked at the annexed material. However, I direct both solicitors to read the Evidence Act.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 4 September 2020