Dann & Dann
[2008] FMCAfam 508
•26 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DANN & DANN | [2008] FMCAfam 508 |
| FAMILY LAW – Children – husband seeks equal shared care – both parents are loving, caring and involved – children’s views – children’s best interests. FAMILY LAW – Property – asset pool agreed – husband’s greater initial contributions – equality of contributions during and post cohabitation – s.75(2) factors favour wife – superannuation splitting not appropriate – proposed orders just and equitable. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 79 & 75 |
| Goode & Goode (2006) FLC 93-286 H and H (2003) FLC 93-168 Lee Steere and Lee Steere (1985) FLC 91-626 Ferraro and Ferraro (1993) FLC 92-335 Clauson and Clauson (1995) FLC 92-595 Coghlan v Coghlan (2005) FLC 93-220 Russell v Russell (1999) FLC 92-877 Jarman & Jarman (2006) FLC 93-289 Money and Money (1994) FLC 92-485 Bremner and Bremner (1995) FLC 92-560 Pierce v Pierce (1999) FLC 92-844 Hayne and Hayne(1977) FLC 90-265 |
| Applicant: | MS DANN |
| Respondent: | MR DANN |
| File Number: | LNM 231 of 2006 |
| Judgment of: | Roberts FM |
| Hearing dates: | 22 & 23 January & 5 February 2008 |
| Date of Last Submission: | 5 February 2008 |
| Delivered at: | Devonport |
| Delivered on: | 26 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr W Ayliffe |
| Solicitors for the Applicant: | Doolan & Brothers |
| Counsel for the Respondent: | Mr T McGuire |
| Solicitors for the Respondent: | Temple Smith Partners |
ORDERS
CHILDREN
That MS DANN (“the wife”) and MR DANN (“the husband”) have equal shared parental responsibility for T born in 1997 and Y born in 2001 (“the children”).
That the children are to live with the husband and the wife as they may from time to time agree but failing such agreement in accordance with Orders Nos.3 to 6 hereof.
That subject to Order No.4 hereof the children are to live with the husband as follows:
(a)during school terms once per fortnight from after school on Thursday until the start of school on the following Tuesday, such to commence on the first Thursday of each school term; and
(b)during half of each school holiday on a week and week about basis with such to start;
(i)after school at the end of the school term in even numbered years; and
(ii)at 3.00 p.m. on the seventh day of the holiday in odd numbered years.
That in the event that the children are not otherwise living with the husband pursuant to the provisions of Orders No.3 hereof the children are also to live with him as follows:
(a)from 3.00 p.m. on Christmas Day until 3.00 p.m. on Boxing Day in odd numbered years;
(b)from 3.00 p.m. on Christmas Eve until 3.00 p.m. on Christmas Day in even numbered years;
(c)from after school on the Thursday before Easter until 3.00 p.m. on Easter Tuesday in even numbered years;
(d)from 3.00 p.m. on Easter Tuesday until the resumption of school at the end of the Easter school break in odd numbered years; and
(e)from 10.00 a.m. until 5.00 p.m. on Father’s Day.
That subject to Order No.6 hereof the children are to live with the wife at all other times.
That in the event that the children are not otherwise living with the wife pursuant to the provisions of Orders No.5 hereof the children are also to live with her as follows:
(a)from 3.00 p.m. on Christmas Eve until 3.00 p.m. on Christmas Day in odd numbered years;
(b)from 3.00 p.m. on Christmas Day until 3.00 p.m. on Boxing Day in even numbered years;
(c)from after school on the Thursday before Easter until 3.00 p.m. on Easter Tuesday in odd numbered years;
(d)from 3.00 p.m. on Easter Tuesday until the resumption of school at the end of the Easter school break in even numbered years; and
(e)from 10.00 a.m. until 5.00 p.m. on Mother’s Day.
That the children are to spend time with the parent with whom they are not otherwise living in accordance with these Orders on each of the children’s birthdays for a minimum of two hours if it is a school day and a minimum of four hours if it is not a school day.
That the husband and the wife must each permit and encourage the children to communicate with the other parent by telephone at reasonable times.
That each of the parties is hereby restrained from consuming alcohol to excess at any time when the children are in the care of that party.
PROPERTY
That the wife retain the following free from any claim by the husband:
(a)any chattels including motor vehicles in her possession or control; and
(b)her [T] Superannuation interest.
That the wife be solely responsible for payment of any liability in relation to the 2002 Nissan X-trail motor vehicle in her possession and her
GE Finance Mastercard and indemnify the husband and keep him indemnified in relation to those liabilities.
That the husband retain the following free from any claim by the wife:
(a)his AMP, Westpac and [F] Enterprises shares;
(b)his [F] Enterprises wood lots;
(c)the proceeds of compulsory acquisition of [S] shares;
(d)any chattels, including motor vehicles in his possession or control;
(e)a block of land in [T], Devonport in Tasmania (“the T block”); and
(f)his [R] superannuation interest.
That the husband be solely responsible for the payment of the following liabilities and indemnify the wife and keep her indemnified from payment of:
(a)Mortgage number [X] to the Westpac Banking Corporation;
(b)any additional balance mortgage liability to Westpac Banking Corporation left undischarged after the sale of the parties’ former matrimonial home;
(c)any liability of whatsoever nature in relation to the T block; and
(d)his Westpac Visacard.
That within thirty (30) days of today the husband must do all acts and sign all documents as may be necessary to transfer to the wife all his title and interest in the real property known as Property S in Tasmania being the whole of the land more particularly described in Certificate of Title Volume [4] so that she shall receive an unencumbered title thereto.
That within thirty (30) days of today the husband must do all acts and sign all such documents as may be necessary to transfer to the wife all his title and interest in the real property known as Property H in Tasmania being the whole of the land more particularly described in Certificate of Title Volume [1].
That prior to the transfers pursuant to Orders No. 14 and 15 hereof the husband must do all things necessary to register a discharge of the parties’ existing mortgage to the Westpac Banking Corporation.
AND THE COURT DECLARES:
That Orders No. 10 to 16 hereof are intended to finally determine the financial relationships between the parties with respect to Part VIII of the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Dann & Dann is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNM 231 of 2006
| MS DANN |
Applicant
And
| MR DANN |
Respondent
REASONS FOR JUDGMENT
Background
In this matter the parties are MS DANN (“the wife”) and MR DANN (“the husband”). They are seeking parenting and property orders.
The parties started living together in early 1997 and were married in early 1998. They separated at the end of 2005, after a period of co-habitation of slightly more than eight and a half years.
They have two children, T aged 10 years and Y aged 7 years.
The husband is employed as a manager with a security/transport company and the wife is employed as a sales assistant in a business conducted by members of her family.
At the time of the hearing, the husband was spending time with the children during school terms each alternate weekend and overnight each Wednesday. The children had also spent time with him during the preceding school holiday on a week and week about basis.
Applications
In her application which was filed in mid 2006 the wife sought orders that the children live with her and the husband spend time with them as follows:
a)Each second weekend from after school on Friday until 8.00 p.m. on Sunday.
b)Each Wednesday from after school or 3.00 p.m. until 8.00 p.m. “for the purpose of sharing an evening meal”
c)For one week in each of the June and Christmas school holidays.
d)From midday on Christmas Eve until 11.30 a.m. on Christmas Day in even numbered years and from midday on Christmas Day until 11.30 a.m. on Boxing Day in odd numbered years.
e)From midday on Easter Saturday until 8.00 p.m. on Easter Sunday in odd numbered years.
f)Between 5.00 p.m. and 8.00 p.m. on the children’s birthdays or the husband’s birthday if the children were not otherwise spending time with the husband, however, if they were otherwise spending time with him, that time would be reduced by those three hours on the children’s birthdays and the wife’s birthday.
The wife also sought other orders in relation to the children, but it is not necessary to mention those at this point.
In a “Case Summary Document” filed 22 June 2007 on behalf of the wife, the orders sought by her in relation to children were essentially the same, save that she had extended the time that the children were to spend with their father on Wednesdays until the Thursday morning.
Significantly, in his opening, the wife’s counsel indicated that the wife accepted the recommendations of the author of the Family Report (“the Family Consultant”). Those recommendations were as follows:
a)The parents share long term responsibility for the children.
b)The children continue to live with their mother and spend time with their father every second weekend and one school night each week. This could be framed as a shared care arrangement, although it is not equal shared care, as both parents are actively involved in the children’s lives.
c)The children spend half of their school holidays with each parent.
d)Special days are shared with both parents.
e)The parents refrain from drinking to excess while the children are in their care.
Although she did not specifically seek an order for equal shared parental responsibility for the children in any written material filed on her behalf, that was the wife’s position as articulated by her counsel.
In relation to property settlement, the wife had sought orders in her application that would provide that “the wife receive 60% of the net marital assets and the husband receives 40% of the net marital assets”. However, in her “Case Summary Document” filed 22 June 2007 and an “Additional Summary of Argument” filed 21 January 2008, the wife was seeking “a division of all matrimonial property (including superannuation) equating with 70% to the wife and 30% to the husband”.
In his Further Amended Response filed in late 2007 the husband was seeking orders to provide for:
a)the parties to have equal shared parental responsibility for the children;
b)the children to live equally with the parties on a week and week about basis;
c)defined special arrangements for special days; and
d)a division of property, including a split of superannuation, which would result in an overall division of 55% to himself and 45 % to the wife.
Witnesses
The wife relied only upon affidavits by herself. The husband relied upon affidavits by himself, his mother and his immediate superior at work. All were cross-examined
The Family Consultant was also cross-examined in relation to the Family Report.
The Court’s approach
I propose to deal with parenting matters first and then consider the parties competing property applications.
Relevant Law – Children
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[1].
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
· 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
· protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
· children have the right to know and be cared for by both their parents; and
· children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children[3].
[3] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[4].
[4] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[5].
[5] Subsection 60CC(3)
There has been some debate about the relative weight to be given to “primary considerations” and “additional considerations”. No doubt, that debate will continue. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence[6]. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child[7].
[6] Section 61da
[7] Subsection 61DA(4)
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
· consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
· if it is, consider making an order to provide for the child to spend equal time with each of the parents.[8]
[8] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[9]
[9] See subsections 65DAA(2) and (3)
The court must follow the legislative pathway that is provided by the Act[10].
[10] See
Equal shared parental responsibility
The parties are agreed that there should be equal shared parental responsibility for the children. In my opinion that is appropriate, notwithstanding some disputed allegations of family violence to which I will refer below.
As mentioned above, if equal shared parental responsibility is to be shared, I must consider whether spending equal time with each of the parents is in the best interests of the children and whether it is reasonably practicable. If I consider that the children should not spend equal time with each parent, I must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each parent.
Should there be equal time or substantial and significant time?
Federal Magistrate Ryan (as she then was) gave a very useful summary in H and H[11] of the factors that the court should consider in relation to equal time. Her Honour said at paragraphs 47 and 48:
[11] (2003) FLC 93-168
47. Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
· The parties' capacity to communicate on matters relevant to the child's welfare.
· The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
· Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
· Whether or not the parties respect the other party as a parent.
· The child's wishes and the factors that influence those wishes.
· Where siblings live.
· The child's age.
48. This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s 65E nor s 68F(2). Each factor fits comfortably within s 68F(2).
The section 68F(2) that her Honour referred to has been repealed. The matters set out in that former section 68F(2) are now incorporated (and expanded upon) in section 60CC.
In my view, the Parliament appears to have incorporated much of what her Honour said in H and H in subsection (5) of section 65DAA of the Act. Under the heading “Reasonable practicality”, that subsection states:
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
It is clear from the Act that in order to determine whether “equal time” or “substantial and significant time” is in the best interests of the children, I must consider the matters set out in section 60CC.
Primary considerations
The benefit of having meaningful relationships with both parents
There is no doubt that the children already have meaningful relationships with both parents. In the Family Report the Family Consultant said:
The children are bright, attractive and energetic children who are well-behaved and have no obvious problems. They related warmly and comfortably with both of their parents.
She went on to say:
There seems to be little doubt that the children love both parents, and that both parents are loving, caring and involved.
Clearly, the meaningful relationships that the children currently have with each of their parents must be continued.
The need to protect the children from physical or psychological harm from abuse, neglect or family violence
There appears to be a dispute between the parties about the level of violence between them during their relationship. When they were specifically questioned about family violence during their interviews with the Family Consultant, they gave differing accounts. For example, an unfortunate incident occurred when a guest vomited in their home after consuming too much alcohol. Quite understandably, that incident upset the wife. She reported to the Family Consultant that the husband had hit her when she would not clean it up. The husband’s version was that both parties and their two guests had consumed a lot of alcohol and he had attempted to restrain the wife while he was cleaning it up the vomit.
In my view, I do not need to make findings about that particular incident, because the wife does not mention it in her trial affidavit. I therefore conclude that wife did not believe that it was an event that should have any bearing upon the outcome of this matter.
There is no evidence before the court that the children have ever needed any protection from the effects of any violence and I therefore conclude that neither parent believes that the children are at risk.
Additional considerations:
The children’s views
In the Family Report the Family Consultant stated the following in relation to T:
She said she likes to see her father regularly but that she misses her mother if she is away from her for long periods. She is very close to both of her parents’ families. She said that she hopes that her parents will continue living close to each other so that she is able to see them both often but she is clear that she does not want a week about shared parenting arrangement. She said that she likes to be “at home sometimes” with her “own things.”
In relation to Y the Family Consultant said:
(He) is closely bonded with both his parents but he particularly enjoys riding his motor bike and times with his father and grandfather …… He clearly stated that he would like “seven nights at Mum’s and seven nights at Dad’s” but then he told me that his father told him that “six nights” with him would be “good too”. …… he stated that he misses both of this parents “a lot”. He is reassured and comforted when he contacts the other parent by phone.
Under the heading “Evaluation” the Family Consultant said:
……it is evident that Y’s views have been influenced by his father repeatedly telling him that he wants an equal shared care arrangement.
The Family Consultant was cross-examined by the husband’s counsel at considerable length about that statement. During that lengthy cross-examination the Family Consultant made the following statements:
When he came into the room, Y volunteered that information before I had a chance to ask any questions. He said; “I would like to have seven nights at Mum’s and seven nights at Dad’s” and there was some pressure in his speech.
But he came in and the first thing he said to me, without me asking a question or opening my mouth, was his little statement, “I would like to spend seven nights at Mum’s and seven nights at Dad’s”.
He told me that six nights would be good too and I asked him if anyone had told him this, or had anyone told him to say this, and he said that his father had told him.
Later in the cross-examination she said:
I asked him about who told him that or did anyone tell him that and he said that his Dad told him – or he said, “Dad told me,” and then he said “Oh, I keep forgetting to say about the six nights”.
The children were seen by the Family Consultant in February 2007 and at that time T was not in favour of spending equal time with each of her parents.
At that time Y clearly repeated views to the Family Consultant that had been expressed to him by his father. However it is also clear that the husband did not express his views to Y in an abusive way. In this regard, the Family Consultant said:
(The husband) didn’t do that in a way that was at all abusive to the little boy……I believe the little boy was very influenced by his Dad but I don’t think it was done in a way that is in any way harmful to the little boy.
In view of her age, it is likely that T’s views, as expressed to the Family Consultant, were more carefully considered that those of Y. Certainly, there did not appear to be any repetition by her of any view of either parent.
When considering the children’s views, the court is in the difficult position of having no recent independent evidence. However it is clear that in early 2007 T was not in favour of spending significantly more time in her father’s care and Y’s statements had been substantially influenced by his father’s wishes.
The nature of the children’s relationships with the parents and other persons
As mentioned above, it is clear that these children have very loving and meaningful relationships with both parents. That also extends to grandparents on both sides and cousins who often stay at the paternal grandparents’ home. (At the time of the hearing the husband was living in his parent’s home).
At the time of the hearing the wife had been in a relationship with a male friend for approximately eighteen months - they spent nights together and had been on at least one camping holiday with the children. However, that male friend was not mentioned in the wife’s affidavit, nor was he a witness on her behalf. In my view, that is unfortunate because he is a relevant person within the scope of subsection 60CC(3)(b)(ii). However, I note that, to the husband’s credit, he does not make any criticism of that male friend, who was a friend of the parties before they separated and is Y’s godfather.
The parents’ willingness and ability to facilitate, and encourage, a close and continuing relationship with the other parent
While it is clear that the parties have different views about how much time the children should spend in the presence of their father, I see no evidence that either parent is lacking in any willingness or ability to facilitate and encourage the children’s close relationship with the other parent.
The likely effect of any changes in the children’s circumstances
The children were seen by the Family Consultant in February 2007. They are now more than a year older than they were then. They have also experienced longer periods of time with their father, in that the school holidays have been shared on a week and week about basis. There is no evidence that the children were harmed by that in any way.
During cross-examination about the husband’s proposal for equal shared care, the Family Consultant said the following:
…and I really believe it should be a shared care arrangement and I really believe that it should be an increasing shared care arrangement as they get older.
I would have wanted it framed as shared care even now. And I would have wanted it staged into the future and I haven’t written that, but I would think that it will be the best thing for the children.
She went on to say:
…it doesn’t stop me from saying that into the future the children should have a much more equal arrangement.
I have no doubt that the Family Consultant’s confidence about the children spending increasing time with their father was a direct result of the fact that she had no hesitation in accepting that both parents could be described as being “committed, involved and competent parents”.
One of the wife’s main objections to the children spending more time with their father during school terms appeared to relate to his work commitments. In her trial affidavit she said:
[Mr Dann] works full time. His work commitments make it impossible for him to collect the children from school or to spend adequate time caring for them. I believe that [Mr Dann’s] parents would be responsible for the children a majority of the time if the children were to live there every second week.
She also said:
…I do not believe that he could continue in his current role while knocking off at 3.00 p.m. every day every second week.
On the other hand, it was the husband’s evidence that under his proposal he would be available to take the children to, and collect them from school.
Mr. P, the husband’s immediate superior at work, had provided an affidavit stating that the type of work done by the company provides opportunities for work hours to be flexible and tailored to fit the needs of the employee. He also stated that the husband is a good, loyal and trustworthy employee and that the company is willing to cater to his needs, provided that the company does not suffer as a result. He concluded in his Affidavit:
I am supportive of [Mr Dann] having flexible time to fit in with his children. [Mr Dann] has the ability to arrange his days and the staff to enable him to work these flexible hours.
Mr. P was cross-examined and was not shaken in his evidence.
I am given further confidence in the supportive role provided by the company by the fact that Mr. P was prepared to arrange his schedule to come from Victoria to give his evidence.
I should also mention that the children are lucky that the wife works in a family business and is also to tailor her work hours to suit the children’s needs.
The practical difficulty and expense of a children spending time with and communicating with a parent
This is not a relevant consideration. The parties live in the same general area. There have been no difficulties in the past and I do not have any evidence that there will be any in the future.
The parents’ capacities provide for the needs of the children
I have already referred above to the evidence by the Family Consultant that both parties are committed, involved and competent parents. Consequently, I have no difficulty in accepting without hesitation that both have the capacity to provide for their children’s needs.
The parents’ attitudes to the children and to the responsibilities of parenthood
Under the heading “My concerns regarding [Mr Dann]’s parenting” the wife refers to her concerns about the husband’s alcohol consumption. She refers to three matters, being:
a)an occasion when the husband came home so drunk that he accidentally urinated on his son while he was asleep in bed. She states that he did not do this intentionally but he seemed so drunk that he did not know where he was or what he was doing;
b)during a family holiday on the east coast with the husband’s family, he and his father had got into a fight after too many drinks and “blood went everywhere”; and
c)the husband has twice been convicted of drink driving, and on the second occasion when his breathalyser reading was 0.17 he had his son in the car.
In relation to (a), the husband accepted the wife’s version of events that he had urinated in his son’s bedroom. However, he did not appear to accept that he had actually urinated upon his son who was asleep in bed. It was apparent to me that he had no recollection of that incident and had to rely upon what he had been told by the wife
In relation (b) above, the husband’s evidence in cross-examination was that there had been an argument between himself and his father, which also involved his brother-in-law. At the time he was playing cads with the wife, his sister, his brother-in-law and his father and all were “having a few drinks”. He denied that there had been a fist fight but said that he and his bother-in-law had had an argument over something that had happened earlier in the day involving the children at the beach. His father had intervened. He had pushed his father and his father had pushed him back which resulted in the husband getting a blood nose. Thereafter the parties all went to bed and the following day he and the wife had left the children with his family and travelled to Hobart to attend a cricket match and a rock concert. He added that the children were both in bed at the time of the incident referred to in (b) above.
In relation to (c) above I note that the husband’s breathalyser reading was not 0.17 at the time that he had his son in the car; it was 0.123. However, that does not mean that the offence and the situation were not serious. Certainly, it is clear that the husband lost his licence for some months as a result of that incident, and during that time he was only allowed to drive in relation to his work on a restricted licence.
The husband’s evidence was that he had made a miscalculation and he was extremely remorseful. He also said that Y was 4 years old at the time and was somewhat excited about the incident. He could not wait to get to school for “show and tell” in relation to the incident.
He said that he had attempted to explain to his 4 year old son that:
Dad had done a very foolish thing, Dad had been a naughty boy and this is not the way you do it.
I accept that the husband’s remorse was genuine and that he appropriately tried to explain to his four year old son that he had done the wrong thing.
I am also satisfied that the other occasion on which the husband was convicted of drink driving was at a time prior to the cohabitation of the parties. I also note that the wife admitted to being convicted for a drink driving offence prior to cohabitation, although her breathalyser reading at that time was clearly lower than either of the husband’s two readings.
I note further that in cross-examination the wife appeared to accept that her concerns about alcohol consumption could be addressed by an order that neither party consume alcohol to excess when the children are in their care. Such was also recommended by the Family Consultant, so I intend to make such an order.
Notwithstanding the above, I accept that in general both parties are responsible parents and repeat that I accept that they are committed, involved and competent.
Any family violence
In my view, I have dealt with family violence sufficiently above and venture to suggest that this is not one of the cases that the legislators had in mind when amending the Act in 2006.
Conclusions – Children
When I consider all the matters set out above, I conclude that while it may be reasonably practicable for there to be an arrangement of equal shared care, it is not in the best interests of the children at this time.
Clearly, the Family Consultant was of the view that these parties should be moving towards equal shared care however it is also clear that she felt that it should be “staged”.
I come to the conclusion that given the ages of the children and the views expressed by T that it is too early to move to an arrangement whereby the children spend equal time with each of their parents. However, it is also my view that the children should be spending longer periods of time with their father during school terms than they do now.
More than a year ago the Family Consultant recommended that the children “continue to live with their mother and spend time with their father every second weekend and one school night each week”. The wife subsequently adopted that recommendation, whereby the children would spend five nights in total per fortnight with their father. The husband’s counsel was quite correct in his submissions that such an arrangement would involve six changes of household each fortnight; with the children being in the wife’s household for three separate periods of time and in the husband’s for another three. He suggested that less changes of household per fortnight would be in the children’s best interest and I am inclined to agree with that. However, I do not agree that it follows that there should be a week and week about arrangement because of the advantage of only two changes per fortnight.
In my view, the children should spend five nights per fortnight with their father during school terms. However, that should be in one block period and not split into three separate periods. That would also have the advantage of only two changes per fortnight.
Sharing the school holidays on a week and week about basis (or something very similar) appears to have been working for these children and I can see no good reason to change that.
In the circumstances, I will make orders to provide for this and in relation to special occasions. I will also make an order in relation to alcohol consumption as referred to above.
The parties will notice that I am making “lives with/lives with” orders. That fits with the Family Consultant’s view that the orders should be “framed as shared care even now”.
The parties will also notice that the first “lives with” order (i.e. Order No. 2) provides that the children should live with each of them as they may from time to time agree, and only if they are unable to agree will the subsequent more prescriptive orders take effect. Not only does that incorporate the spirit of section 60B(2)(d), but it will also allow the parties to be flexible about the children’s arrangements into the future if they can agree. I have confidence that these two very good parents will move appropriately to the point where they will not need prescriptive court orders to regulate their lives or those of their children.
The orders also provide for the children to spend substantial and significant time with each parent, thereby allowing them both to be involved in their children’s day to day activities.
The wife sought orders that neither party should discuss these court proceedings with the children and that they be restrained from passing information or messages to each other through the children. No evidence was led in relation to either order sought, so I will not make such orders.
The wife also sought orders for the parties to share in the payment of various children’s expenses. That is clearly a Child Support issue and no evidence was led in relation to Child Support matters either. Certainly, I cannot treat the wife’s application as an application to depart from any Child Support Assessment. Consequently, I will not make any such orders either.
Relevant Law – Property
Section 79 of the Act sets out the matters that the court must take into account when considering what orders should be made for the alteration of the property interests of parties. They include:
a)the financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b)the contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;
c)the effect of any proposed order upon the earning capacity of either party; and
d)the matters referred to in sub-section 75(2) as far as they are relevant.
The general approach to the determination of a property settlement application has been well established by authority[12]. It is essentially a multi-step process. The first step is to identify the property, liabilities and financial resources of the parties at the time of the hearing. The second is to evaluate the contributions made by the parties as defined in section 79(4) of the Act. The third step is to consider those matters contained in section 75(2) that are relevant.
[12] See Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Clauson and Clauson (1995) FLC 92-595 and Coghlan v Coghlan (2005) FLC 93-220.
In Ferraro the Full Court said:[13]
A now well established line of authority in this Court indicates the approach normally to be taken to the exercise of the discretion in s79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider the ''contributions'' of the parties within paras (a) to (c) of s79(4), and then to consider the matters in paras (d) to (g), more especially para (e) which takes up by reference the provisions of s75(2) and which are generally referred to as the ''section 75(2) factors.
[13] (1993) FLC 92-335 at page 79,560
In determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so. Sub-section 79(2) provides that the court shall not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to so. It is the justice and equity of the actual orders that the court must consider. This has been referred to as “the fourth step”.
In Russell v Russell the Full court said:[14]
Furthermore, it must be remembered in this regard that under s79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties' assets. Indeed we take the opportunity to emphasise that in what his Honour has termed ''the fourth stage'', that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.
[14] (1999) FLC 92-877 at page 86,439
Since December 2002 courts have been required to treat superannuation interests as property for the purposes of paragraph (ca) of the definition of matrimonial cause in section 4 of the Act.[15]
[15] See section 90MC
The asset and liabilities
The parties have agreed upon the assets and liabilities to be taken into account. In the main, I have accepted their agreed asset pool. However, I have made some adjustments to the values of shares as explained in the footnotes in relation to the first asset table below.
I have also excluded each party’s bank balance at the time of the hearing because they were so small as to be virtually insignificant in relation to the other assets.
In Coghlan v Coghlan the majority of the Full Court of the Family Court of Australia said the following towards the end of their joint judgment, under the heading “Practical implications” :
61. Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. This approach could be adopted where the parties agree that it should be adopted……
From the agreed list of assets handed up to me, it is clear that the parties wish to adopt that approach.
The assets are as follows:
Property
Owner
Value
S block
Joint
$120,000
H block
Joint
$95,000
T block (Devonport)
Husband
$69,000
673 AMP shares @ $7.82[16]
Husband
$5,263
926 Westpac shares $24.86[17]
Husband
$23,020
Sale proceeds 133 [S] shares[18]
Husband
$539
100 [F] Enterprises shares @ $5.90
Husband
$590
[F] Enterprises woodlots
Husband
$7,000
Household effects
Husband
$1,000
2004 Nissan X-trail
Husband
$15,450
Husband’s superannuation
Husband
$106,023
2002 Nissan X-trail
Wife
$17,100
Household effects
Wife
$5,000
Wife’s superannuation
Wife
$11,703
Total
$476,688
[16] Last sale on 16 May 2008
[17] Last sale on 16 May 2008
[18] [M] Ltd changed its name to [S] Ltd. All shares were compulsorily acquired recently at a price of $4.05 per share.
The agreed liabilities are as follows:
T block mortgage
Husband
$53,900
Balance mortgage on sold home
Joint
$29,453
Wife’s car loan
Wife
$18,100
Wife’s Mastercard
Wife
$5,266
Husband’s Visacard
Husband
$6,000
Total
$112,719
Consequently, the net value of the assets is $363,969.
Contributions
In her affidavit, the wife concedes that the husband’s net assets at the start of cohabitation “equalled approximately $75,000”. The husband says that he had assets with a value of approximately $95,000, in that he had savings for a house deposit of approximately $20,000 that are not accepted by the wife. She said in her affidavit that he had saved that money while the parties were living with his parents rent free at the commencement of cohabitation for approximately six months.
When the wife was cross-examined about that, she was unable to give any direct relevant evidence. Further, even if the parties were living rent free for six months in 1997, it is highly unlikely that the husband would have been able to save $20,000 during that period, when he would have been earning less than he is now. I therefore conclude that the husband did have that additional $20,000, or at least a very significant proportion of it, before they started living together.
On the other hand, the wife admits in her affidavit that at the start of cohabitation she was deficit by approximately $2,000, because her liabilities exceeded the value of her assets.
Clearly, the husband’s contribution of assets at the start of cohabitation was quite significant when compared with the deficit position of the wife.
I do not need to consider the relative value of the parties’ contributions during cohabitation, because counsel agreed during closing submissions that the parties direct and indirect contributions during the period of cohabitation were equal. (I must say that even if counsel had not agreed upon that, it would not have been difficult for me to arrive at that conclusion.)
It is clear that since the parties separated, the wife’s contributions as a homemaker and parent have been significantly greater than those of the husband. This is simply because the children have spent significantly more time with her than with the husband.
In addition, the wife has made a direct and equal post-separation financial contribution towards the payment of the deposit for the purchase of the T block because that was funded from the proceeds of an insurance policy that existed prior to separation.
On the other hand the husband’s contributions towards the current value of his superannuation have been greater than those of the wife. In this regard, the husband has been able to “sacrifice salary” into his superannuation fund, whereas it is clear that the wife has had no such capacity. However, that is not to say that he has made all the contributions towards the increased value of his superannuation. The wife has clearly made some indirect contributions to its growth. In this regard see Jarman & Jarman[19], where the Full Court of the Family Court of Australia said at paragraph 54:
We consider that there is some force in the submission …… that the growth in the fund could be sourced to the nature of the fund and the contributions made throughout the marriage by both parties.
[19] (2006) FLC 93-289
I conclude that the parties’ post-separation contributions have also been equal.
It is clear therefore that when one considers the husband’s greater contributions at the start of cohabitation approximately eleven years ago and the equality of contributions during cohabitation and after it ended, the overall weight of contributions must favour the husband. However, the court must decide how much weight should be given to the husband’s greater initial contributions.
In the Full Court decision of Money and Money[20], the dissenting Judge (Fogarty J) had said:
……an initial substantial contribution by one party may be ‘eroded’ to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party.[21]
[20] Money (1994) FLC 92-485
[21] Money at page 81,054
In Bremner and Bremner[22] a differently constituted agreed with the approach taken by Fogarty J in Money.
[22] Bremner and Bremner (1995) FLC 92-560
In Pierce v Pierce[23] the Full Court said:
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.[24]
[23] Pierce v Pierce (1999) FLC 92-844
[24] Pierce at page 85,881
It is clear that the assessment of contributions in relation to Family Law property settlements is not an exercise of mathematical precision. In Hayne and Hayne[25], Pawley J said:
In matters such as this one cannot approach the problem with an eye for meticulous detail. It should rather be dealt with broadly so that the end result can be said to be just and equitable.
[25] (1977) FLC 90-265 at p. 76,415
In Bremner referred to above, Nicholson CJ said:
I would also add that when one considers cases of this sort, it should be remembered that they are not decided upon a pure mathematical basis, and looked at from the point of view of abstract justice, it would appear to me that in a case where the assets of the parties are a comparatively modest $360,000, there has been a 20 year marriage and two children, where both parties have worked as these people have, it is difficult to argue with a judgment which divides those assets equally.
In this matter the net asset pool is also approximately $360,000, but the parties were together for a little less than nine years. When I consider those factors, I am of the view that if this matter was to be considered on contributions alone, it would be appropriate for there to be an adjustment of 5% of the total net value of the assets in the husband’s favour.
However, section 79 of the Family Law Act makes it very clear that such matters are not determined solely on contributions.
Section 75(2) factors
The parties are both in their thirties.
The husband is employed in a managerial position and is able to sacrifice salary to improve the value of his superannuation. The wife works in a business conducted by her parents and sister, although she has no proprietary interest in that business.
Although the wife appears to earn something less than award wages, she is given flexibility in relation to her work hours that would probably not be given to her by an “arms length” employer. That clearly has benefits for the children that she considers are of greater value than any lost income.
The orders that I will be making in relation to the children will not make a significant difference to the wife’s ability to work more hours. I therefore conclude that her income will not increase to any significant degree, and will remain significantly less than that of the husband.
The Orders that I will be making in relation to the children will mean that during school holidays (approximately 13 weeks per year) the children will spend equal time with each parent, and during school terms (approximately 39 weeks per year) the children will spend five days of each fortnight with their father and nine with their mother.
My very rough calculation is that over a whole year the children will be with the wife for approximately 61% of their time. Naturally, there will be some “re-adjustment” of the parties’ income positions as a result of Child Support legislation, but that is unlikely to fully compensate the wife for the greater cost burden that she will have to bear. In this regard, I am well aware of the published research in relation to the costs of raising children[26].
[26]The publication “A Guide to Calculating the Costs of Children” by the Australian Institute of Family Studies can be downloaded from the website at >
When I consider these matters, and in particular the disparity in the parties’ incomes and the ages of the children, I am of the view that there should be a section 75(2) adjustment in favour of the wife of 15%.
Conclusions – Property
Clearly, the 5% adjustment in favour of the husband that is referred to above needs to be offset against the 15% adjustment in favour of the wife, making a net adjustment of 10% in her favour. Consequently, the wife should receive 60% of the total net value of the assets and the husband should receive 40%.
If the wife is to receive 60% of the total net value of the assets, she would be entitled to retain assets worth $218,381. At this stage she has her Nissan X-trail, household effects and superannuation with a total value of $33,803. However, she has a car loan and credit card liability totalling $23,366, so the net value of her assets is only $10,437. She therefore needs a further $207,944 to fulfil her entitlement.
The husband seeks a splitting order in relation to his superannuation in order to provide for the wife’s entitlement. However, I do not consider that to be appropriate. The wife is nearly thirty five years old so she would be unlikely to see any benefit from a superannuation splitting order for more than twenty years. Her needs are much more immediate than that.
In my view, the wife should receive the S block and the H block in addition to the assets referred to in the paragraph immediately above. That will give her additional assets worth $215,000, which is slightly more than $207,944. However, her counsel indicated in his closing submissions that it would be her intention to sell the S block. Such a sale will result in her losing some the value because of the necessity to pay selling costs, such as real estate agent’s fees, advertising and legal fees.
In my view, such a settlement is just and equitable for the purposes of subsection 79(2) of the Act.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Roberts FM
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