Davoud & Davoud
[2024] FedCFamC1F 209
•10 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Davoud & Davoud [2024] FedCFamC1F 209
File number: MLC 14518 of 2022 Judgment of: MCGUIRE J Date of judgment: 10 April 2024 Catchwords: FAMILY LAW – PARENTING – Where the matter proceeded undefended in the absence of the husband – Where the husband has not complied with procedural orders – Where the husband has a limited relationship with the children – Allegations of family violence – Allegations of substance abuse – Orders made for the wife to have sole parental responsibility – Orders that children to live with the wife – Orders for the children to spend time-with the husband as agreed
FAMILY LAW – PROPERTY – Where the matter proceeded undefended in the absence of the husband – Where the husband has not complied with procedural orders – Assessment of contributions – Orders there be a division of the parties’ property in terms of the orders sought by the wifeLegislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 75 and 79 Cases cited: McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Division: Division 1 First Instance Number of paragraphs: 66 Date of hearing: 19 March 2024 Place: Melbourne Counsel for the Applicant: Mr Schmidt Solicitor for the Applicant: Taussig Cherrie Fildes Solicitor for the Respondent: Litigant in Person - no attendance ORDERS
MLC 14518 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DAVOUD
Applicant
AND: MR DAVOUD
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
10 APRIL 2024
THE COURT ORDERS THAT:
1.The Further, Further Amended Initiating Application for parenting and property orders, filed 31 January 2024, proceed undefended the husband, Mr Davoud (“the husband”).
PARENTING
2.Ms Davoud (“the wife”) have sole parental responsibility for the children X born 2010 and Y born 2014 (collectively “the children”).
3.Within fourteen (14) days of any major long-term decision made by the wife in relation to the children, the wife provide written notice of her decision to the husband.
LIVE WITH
4.The children live with the wife.
SPEND TIME WITH
5.For any period of time the husband is in Australia, the children spend time with the husband at times to be agreed in writing.
COMMUNICATION
6.The wife facilitate the children communicating with the husband by telephone, Skype, FaceTime or the equivalent as follows:
(a)not less than once a week at times to be agreed by the parties and in the absence of agreement at 7.00pm on Sunday in the time zone the children are in at that time; and
(b)as initiated by the children in accordance with the children’s views and preferences.
DRUG USE
7.The husband be and is hereby restrained from:
(a)consuming or using illegal drugs and using marijuana, cannabis or cannabis products (even if legal and/or prescribed):
(i)at times the children are in his care whether supervised or otherwise or when the children communicate with him in accordance with order 6;
(ii)for 24 hours prior to the children being in his care whether supervised or otherwise or when the children communicate with him in accordance with order 6.
(b)permitting any other person doing so (per order 7) in his company while the children are in his care whether supervised or otherwise or when the children communicate with him in accordance with order 6;
(c)permitting any drug-affected person from being in the children’s presence whether in person or via by telephone, Skype, FaceTime or equivalent; and
(d)having such drugs or drug equipment visible or accessible to the children whether in person or via telephone, Skype FaceTime or equivalent.
8.If the husband seeks at any time to spend time with the children face to face, whether supervised or otherwise, there be orders that require him to make an appointment and attend for hair follicle testing and urine screening at an authorised pathology service or laboratory (“pathology services”) for drug testing purposes and in respect thereof:
(a)collection is to be conducted by a qualified and certified collector;
(b)chain-of-custody procedure is to be applied to the sample;
(c)testing is to be conducted at an approved laboratory, accredited to conduct drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory; and
(d)either head or body hair may be collected for testing and in respect thereof:
(i)the urine screening must occur not less than six hours prior to any spend-time period as and when randomly requested by the wife;
(ii)the hair follicle test must occur when requested by the wife on no more than four occasions each year to be undertaken for the purposes of detection of each of the following substances:
A.alcohol;
B.amphetamine, methamphetamine, MOMA and amphetamine-type substances and their metabolites;
C.cannabis and its metabolites;
D.cocaine and its metabolites;
E.opioids and their metabolites; and
F.benzodiazepines and their metabolites.
SCHOOL
9.The wife be permitted to provide a copy of these orders to any school attended by the children.
INFORMATION
10.Each of the wife and husband keep the other informed of their residential address, mobile and landline telephone number (if applicable) and email addresses and forthwith notify the other parent within fourteen (14) days of any anticipated and/or actual change to those details.
PASSPORTS
11.The wife be permitted to apply for, obtain and renew an Australian passport for each of the children notwithstanding the consent of the husband has not been obtained.
12.The passports for the children, including any renewal passport once issued, be held by the wife.
INJUNCTIONS
13.The husband, by himself, his servants and/or agents be and is hereby restrained by injunction, from applying for any Country B or Australian passport for the children without first obtaining the written consent of the wife.
14.The husband, by himself, his servants and/or agents be and is hereby restrained by injunction, from removing or attempting to remove or causing or permitting the removal of the children from Australia.
PROVISION OF INFORMATION
15.The wife and husband each:
(a)notify the other of any medical emergency, serious illness or serious injury suffered by the children requiring medical treatment or hospitalisation while the children are in their respective care; and
(b)be authorised to provide a sealed copy of these orders to:
(i)any hospital, medical, dental or other allied health professional attended by the children;
(ii)any State or Federal Government Department;
(iii)the children’s schools;
(iv)any provider of extra-curricular activities undertaken by the children; or
(v)a financial institution.
PROPERTY
SUPERANNUATION
16.A base amount of $31,642 (“Base Amount”) be allocated as required by section 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”) to the wife out of the entitlement of the husband (born 1979/customer number …) in Superannuation Fund 2 (“the Fund”).
17.Pursuant to section 90XT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the husband’s interest in the Fund the Trustee of the Fund, C Ltd (Australia) Ltd (“the Trustee”) pay to the wife the Base Amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“FL Regulations”) and there be a corresponding reduction, in the husband’s entitlement in the Fund.
18.Order 17 hereof has effect from the operative time being the fourth business day after service of these orders upon the Trustee.
19.The Trustee in accordance with the obligations set out under the Act and the FL Regulations, do all such acts and things and sign all documents as may be necessary to make payment to the wife pursuant to order 17 of these orders.
20.The wife do all such acts and things necessary, including but not limited to exercising her request pursuant to rule 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 (“SIS Regulations”) for the rollover or transfer of the payment split created by order 17 out of the Fund to a fund of the wife’s choosing in accordance with rule 7A.12 of the SIS Regulations.
21.Pursuant to regulation 14F of the FL Regulations any payment from the husband’s entitlement in the Fund made after the Trustee has rolled over the payment split created by order 17 to a fund of the wife’s choosing are not splitable payments.
OTHER
22.Upon completion by the husband with his obligations pursuant to orders 16 to 21 the wife indemnify the husband in respect of all debt and liability of the parties to Ms D.
23.Save as otherwise provided and save for the purpose of enforcement of these and any other subsequent orders:
(a)each party be solely entitled to the exclusion of the other, all property (including choses in action) in possession of, or owned by, that party, or to which that party is otherwise entitled at the date of these orders and without limiting the generality thereof:
(i)the wife retain absolutely unto herself and free of all claim by the husband:
A.the real property situate at and known as E Street, Suburb F in the state of Victoria more particularly described as the whole of the land comprised in certificate of title volume … folio … (“E Street”);
B.her Motor Vehicle 1;
C.the contents of E Street; and
D.funds standing to her credit in bank accounts.
(ii)the husband retain absolutely unto himself and free of all claim by the wife the funds standing to his credit in bank accounts.
(b)each party forgo any claim they each have to superannuation, long service leave, redundancy, retirement, retrenchment, and the like benefits, belonging to, or earned by, the other party;
(c)each party forgo any claim they may have to inheritance or compensation payments to which the other party is entitled to either presently or in the future;
(d)insurance policies remain the sole property of the named owner; and
(e)each party be solely liable for, and indemnify the other party against, any liability encumbering any item of property to which that first party is entitled pursuant to these orders.
24.The wife have leave to apply to the Court in respect of the implementation of the orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Davoud & Davoud has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J:
APPLICATION
I am asked to proceed to final hearing undefended the husband, Mr Davoud,[1] in property and parenting proceedings.
[1] “The husband”.
Where the husband’s participation in these proceedings has been sporadic and by occasional Microsoft Teams appearances from Country B and where he has not filed responsive documents, on 28 February 2024 I made the following orders:
1.The respondent husband/father, being in default of orders for the filing of a response, responsive affidavit and trial affidavits, the matter is listed for undefended hearing in respect of both financial and parenting matters in the Federal Circuit & Family Court of Australia at Melbourne at 9.30am Tuesday 19 March 2024 before His Honour Justice McGuire.
2.Order 1 hereof will be vacated upon the husband filing responsive documents and/or trial affidavits and case summary documents with time extended to be filed not later than COB Wednesday 6 March 2024.
The husband did not file responsive documents pursuant to order 2 and did not attend at court when the matter was called at 9:30am on 19 March 2024. Accordingly, I have deemed it appropriate and just and equitable to proceed to hear the matter undefended the husband.
THE WIFE’S CASE - PARENTING
The wife, Ms Davoud,[2] seeks parenting orders in respect of the parties’ two children being:
(a)X born 2010 (aged 13 years); and
(b)Y born 2014 (aged nine years) (collectively “the children”).
[2] “The wife”.
The wife asked for orders for sole parental responsibility and that the children live with her. She proposes an order for any direct time-with between the children and the husband to be supervised, but with orders that the wife facilitate communication between the children and the husband by telephone, Skype, FaceTime or equivalent on not less than one time per week as agreed between the parties or failing agreement at 7.00pm on Sundays.
The wife seeks various injunctive orders in respect of the of the husband’s drug use with orders, if necessary, as to testing procedure together with injunctions to prevent the husband from removing the children from Australia and/or obtaining any Australian or Country B passport for the children.
THE WIFE’S CASE – PROPERTY
The wife seeks orders which would ultimately give her 80 per cent of the net value of the parties’ tangible property together with a superannuation split of a base amount of $31,642 from the husband’s superannuation. This constitutes a 53.8 per cent split of that superannuation.
THE EVIDENCE
The wife relies on her Trial Affidavit and Financial Statement both affirmed 31 January 2020. She also relies on a Notice to Admit document provided to the husband on 21 December 2023 to which there has been no response and hence the facts are deemed admitted.
BACKGROUND FACTS
The wife is 43 years of age. She is a health professional.
The husband is 44 years of age. He is an IT professional. He has resided in Country B since early 2022.
The parties commenced cohabitation in 2005 and were married in 2007. The two children, X and Y, were born 2010 and 2014 respectively. The parties separated on 26 November 2021 contemporaneously with the wife obtaining an intervention order against the husband for the protection of herself and the children.
PARENTING – THE RELEVANT LAW
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides for parenting matters where s 60CA offers that the best interests of the children are to be the paramount consideration for the Court in determining parenting and living arrangements for those children.
In determining the children’s best interests the Court is mandated to reference the probative evidence and the parties’ proposals to the numerous factors set out at s 60CC(2) and (3) of the Act against a background of the objects and principles of the legislation set out at s 60B as follows:
(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 61DA of the Act provides a presumption that it be in children’s best interests for their parents to exercise equal shared parental responsibility for those children. “Parental responsibility” is usually understood as being the important and long-term decisions that parents make for children in respect of matters such as education, religion, medical procedure and the like and as opposed to the more mundane day-to-day decisions that parents make for their children. The presumption of equal shared parental responsibility does not apply where the Court is satisfied that there has been child abuse or family violence. Alternatively, the presumption may be rebutted on evidence satisfying the Court that it would not be in the best interests of the children for the parents to exercise equal shared parental responsibility.
Should the presumption of equal shared parental responsibility apply and not be rebutted, or the Court makes an order for equal shared parental responsibility then the Court is currently obliged to follow a course of statutory and intellectual consideration where firstly, it is to consider whether it be both in the children’s best interests and reasonably practicable for the children to live in an equal time arrangement between the parents. If the answer to either of those questions is in the negative, then the Court is to consider whether it be both in the children’s best interest for the children to live in a regime of “substantial and significant time” between the parents.
In this matter the wife argues that the presumption of equal shared parental responsibility does not apply by reason of significant family violence. In any event, she seeks orders other than those of equal time or “substantial and significant” time arguing that such orders would neither be in the children’s best interests and nor would they be practicable where the husband resides in Country B.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the children of having a meaningful relationship with both of the children’s parents;
The children have not seen their father since his move to Country B in early 2022. Their communications with him are sporadic by FaceTime or similar. Consequently, it is understandable that the children’s senses of support and dependency rests with their mother who has effectively assumed the role of sole carer. To the contrary, their relationship with their father is sporadic and limited to media communications.
The task for the Court here is to make orders which are both prospective and qualitative. That is, parenting orders are intended to operate into the future and be in the children’s best interest. Similarly, the task for the Court is not simply one of dividing up quantities of the children’s time but rather to consider the quality of time and hence the quality of a relationship for the children with the relevant parent.[3]
[3] McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92.
Whilst this subsection is a “primary consideration” for the Court, it is not of itself determinative of the children’s best interest but simply another factor to take into account.
Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
By later amendment to the Act at s 60CC(2A) the Court is now obliged to “give greater weight” to the considerations set out at subsection (2)(b) than (2)(a).
The wife says at [23] of her affidavit that the husband has had a lengthy history of illicit drug abuse together with mental health issues culminating in him threatening self-harm when the children were in the home and in the children’s presence. Specifically in early 2020 the husband self-harmed at the family home. Similarly, on two occasions in late 2021 the husband threatened to harm himself including in the presence of the children.
The wife alleges that the husband took the child Y with him to purchase drugs from his drug dealer. In late 2021 the wife applied for an Interim Family Violence Intervention Order such order being made in late 2021 and becoming a final order in early 2022 listing the children as protected persons as well as the wife.
Section 60CC(3)(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views;
The Court has no independent evidence as to the children’s views. The evidence is, however, that the children are content and settled in the wife’s care whereas their relationship with their father has been a volatile and sporadic one.
Section 60CC(3)(b) the nature of the relationship of the children with:
i each of the children’s parents; and
ii other persons (including any grandparent or other relative of the children);
The children’s day-to-day relationship and emotional support rests with their mother. They have had no direct contact with their father since January 2022. The children understand their mother to be their primary carer.
Section 60CC(3)(c) the extent to which each of the children’s parents has taken, or failed to take, the opportunity:
ito participate in making decisions about major long-term issues in relation to the children; and
iito spend time with the children; and
iiito communicate with the children; and
(ca)the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
The husband has chosen to live in Country B. In this sense he has delegated the care of the children to the wife. The children’s communication with the husband is sporadic. The wife has by delegation assumed the role of primary or sole parent. She is solely responsible for the children’s actual and financial support without assistance from the husband.
Section 60CC(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
i either of his or her parents; or
iiany other children, or other person (including any grandparent or other relative of the children), with whom he or she has been living;
The wife maintains communicative contact between the children and the husband and continues to encourage such contact. Further, should the husband return to Australia then the wife proposes direct contact between the children and the husband, albeit supervised given the husband’s historical drug use and volatile behaviour including in the presence of the children.
Section 60CC(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
The husband has not participated in these proceedings other than occasional attendances to court by Microsoft Teams. He has not prosecuted an application to spend direct time with the children. As such, the subsection is not therefore relevant.
Section 60CC(3)(f) the capacity of:
i each of the children’s parents; and
ii any other person (including any grandparent or other relative of the children);
to provide for the needs of the children, including emotional and intellectual needs;By reason of her delegated obligations, the wife is deemed to have a capacity to attend to the children’s needs. The wife’s affidavit material discloses that the wife has a demonstrated capacity to attend to the children’s physical, intellectual and emotional needs. Notably, the wife has maintained the channels of communication between the children and their father.
To the contrary, the husband has no recent demonstrated capacity to attend to the children’s needs. He has chosen to live away from the children. He provides no actual or financial support for the children. He suffers historical issues with substance abuse and has exhibited self-harm and suicidal tendencies including in the presence of the children.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant;
This is not a relevant consideration.
Section 60CC(3)(h) if the children are Aboriginal children or Torres Strait Islander children:
ithe children’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
iithe likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
The wife has a demonstrated responsible attitude to the obligations of parenting the children. To the contrary, the husband has not accepted the obligations of parenting in either an actual or financial sense.
Section 60CC(3)(J) any family violence involving the children or a member of the children’s family; and
Section 60CC(3)(k) if a family violence order applies, or has applied, to the children or a member of the children’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;
These matters are dealt with above.
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 children;
The wife has assumed the role of sole parent and makes application to this Court for court orders giving force to that role. The husband does not actively oppose the orders sought by the wife. The Court, in these circumstances, should give certainty and security to the wife in her role as parent of the children.
CONSIDERATION AND FINDINGS – PARENTING
I find that the wife is the delegated sole parent of the children and it follows that the children have an established, dependent and supportive relationship with their mother. To the contrary, the children’s relationship with the father is sporadic and limited.
I find the wife is a capable and caring parent for the children.
I find that there has been family violence within the broad definition in the Act where the husband has exhibited self-harm and suicidal tendencies in the presence of the children and compounded by long term illicit drug abuse.
I find that the husband has delegated the responsibilities of parenthood to the wife.
I find that the risks to the children manifested by the husband’s drug and mental health issues remain unabated and hence remain unacceptable in the prospective sense considered by these courts.
I find that it is in the children’s best interests to remain living with their mother.
I find that the presumption of equal shared parental responsibility does not apply by reason of my findings as to family violence set out above but where, in any event, an order for equal shared parental responsibility would be both impracticable and not in the children’s best interests. I find that the injunctive orders sought by the wife in her Further, Further Amended Initiating Application are reasonable and justified and again with reference to the husband’s volatile behaviour and historical drug use and where the husband resides out of Australia.
There will be orders in the terms of the wife’s Further, Further Amended Initiating Application filed 31 January 2024.
PROPERTY – THE RELEVANT LAW
Section 79 of the Act provides a court with power to alter the interests of parties in property where “property” includes assets and liabilities with amendments to the Act providing that “superannuation may be treated as property”, although not usually crystallising in the sense of tangible assets at the time of the hearing.
The discretion at s 79(1) is a broad one but limited by the statute itself. In R v Watson; Ex parte Armstrong[4] the High Court observed:
… The judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down…
[4] (1976) 136 CLR 248 at 257.
Importantly, at s 79(2) of the Act the Court must consider whether it be just and equitable, in all the circumstances, for it to make any order under the section. That consideration is not to be one simply conflated with a consideration of contributions pursuant to s 79(4) but should be an independent and discrete one as to justice and equity. In the matter now before me, I am easily satisfied that it is just and equitable to alter the property interest of the parties where it is clear that the relationship has ended, and where the parties have during the course of their relationship accrued legal and equitable interests in property. The major asset being the former matrimonial home is subject to a mortgage and other loans which have become the sole responsibility of the wife. It is therefore just and equitable to consider altering the property interests of the parties.
After the Court has made findings of fact as to the contents of the property pool and the values to be attributed thereto, and considered the justice and equity issue of s 79(2) then the Court moves to consider the contributions by or on behalf of each of the parties to the acquisition, improvement and maintenance of the assets in the pool and as to the quantum of liabilities. The Court is to allocate weight to those contributions which may be of a direct or indirect financial type, non-financial contributions, or contributions by way of homemaker and parent.
The Court is also to identify and give weight to considerations at s 79(4)(d) – (g) including any relevant factors at s 75(2) of the Act as to whether there be any further adjustment to either of the parties.
The entire process of consideration is permeated on the basis of justice and equity.
The wife in her affidavit at [25] provides a balance sheet as follows:
ASSETS Description Owner Value 1. E Street, Suburb F wife $1,100,000 2. Funds in bank account wife $7,484 3. Motor Vehicle 1 wife $36,000 4. Household contents wife E$10,000 Asset’s subtotal $1,153,484
LIABILITIES 5. E Street, Suburb F Mortgage wife ($1,216,157) 6. Loan owing to Ms D wife ($38,795) 7. Loan owing to Mr G wife ($5,000) 8. Australian Taxation Office debt FY 2023 wife ($6,896) 9. Australian Taxation Office debt-integrated account wife ($39,843) Liabilities subtotal ($1,306,691)
Superannuation 10. Superannuation Fund 1 wife $88,327 11. Superannuation Fund 2 (as at 30 June 2022) husband $134,494 Total superannuation E$222,821 Net property excluding superannuation (E$153,207) Net property including superannuation E$69,614
I accept the wife’s balance sheet given that it is unchallenged by the husband and where the items are either deemed admitted by reason of the Notice to Admit and/or by the Single Expert Valuer being Ms H’s affidavit filed 16 October 2023.
CONTRIBUTIONS
The wife asserts, and I accept, that neither party had any assets of significant value as at the date of commencement of cohabitation.
Early in the relationship the wife received an inheritance of $250,000 from her grandmother’s estate. Between early 2009 and mid-2010, the parties lived in the maternal grandmother’s apartment at Suburb J rent free.
The parties purchased the property at E Street, Suburb F in mid-2010 for $652,000. The wife applied $110,000 from her inherited funds. The remainder of the purchase price was funded by a loan secured by mortgage.
The wife accepts that the husband received a modest inheritance during the course of the relationship.
The wife says the husband’s employment was unreliable due to his chronic dependency on illicit drugs and consequent mental health issues with the funding of the household often falling to her.
The wife obtained loans from her own mother, Ms D, which are evidenced and secured by caveats placed on the property. There is further evidence by way of a written loan agreement dated mid-2010 between the wife’s mother and the parties in respect of a principle sum of $110,000 provided in mid-2010. Yet another loan agreement was entered into with the wife’s mother in late 2018 and another in late 2021.
The wife is employed as a health professional and her income became the primary source of financial support for the family unit.
The wife has made substantial post separation contributions including sole financial responsibility for the children and the mortgage payments.
The husband’s contributions for the children have been limited to an amount of $1,137 in January 2022 and $1,000 in March 2022.
The wife has paid private education fees and expenses for the children.
The wife has experienced difficulties in meeting bank mortgages and hence satisfied those mortgages by way of loan from her own mother now secured by first mortgage. The husband has not cooperated in the refinancing of the mortgage loan secured by the former matrimonial home hence incurring further expenses for the wife.
I am satisfied that the contributions of the wife have been overwhelming with reference to her inheritance, her greater financial contributions during the relationship and her significant contributions post separation. Where the property pool in respect of tangible assets is negative as to its value, it is not necessary to attribute a percentage figure to such contributions but, if called upon to do so, then it would not be unreasonable to consider an adjustment of 25 – 30 per cent of the property pool to the wife.
SECTION 75(2) FACTORS
The wife is the sole actual and financial provider for the children and is likely to be so throughout their minority. The husband currently contributes no financial support. Again, an adjustment to the wife of at least 20 per cent of the property pool would not be unreasonable on these considerations and, in particular, given the need to give “reality” to any such adjustment within the context of the limited property pool.
CONSIDERATION – PROPERTY
The wife seeks orders whereby she receive the former matrimonial home at E Street, Suburb F together with her limited bank balance, her motor vehicle, and the furniture and contents. She would take on the significant debts of the parties which are of greater quantum than the value of the assets therefore presenting the Court and her with a negative value of the property pool. It follows that she should have the benefit of those assets. Similarly, the wife seeks a split from the husband’s superannuation entitlement of just $31,642. When questioned as to whether or not this was a conservative amount, counsel for the wife confirmed that his instructions were to seek no greater split. Consequently, I will make orders accordingly.
Consequently, the wife will receive assets of $1,153,484 but will assume tangible debt of $1,306,691. There will be a superannuation splitting order from the husband’s Superannuation Fund 1 personal super of $31,642 which would give the wife 53.8 per cent of the parties’ total superannuation entitlements.
My only concern as to justice and equity is whether the orders sought by the wife do her justice given the quantum of the property pool and the relevant contributions and s 75(2) factors. I note, however, the wife is represented by solicitors and experienced counsel and note the force of the submission that she wishes to assume sole title to the only major asset of the parties being the property at E Street, Suburb F. I will make the orders sought.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 10 April 2024
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