Deal & Zimmerman
[2007] FamCA 389
•3 May 2007
FAMILY COURT OF AUSTRALIA
| DEAL & ZIMMERMAN | [2007] FamCA 389 |
| FAMILY LAW - CHILDREN - PARENTING ORDERS - Best interests of a child - Presumption rebutted by findings of family violence FAMILY LAW - PROPERTY SETTLEMENT - Contributions before and after separation - After separation, husband retains residence but collects rent from a boarder paying in excess of minimum mortgage commitment - Wife pays off Centrelink liability which accrues during relationship - At commencement of relationship husband has equity in a house but subsequent contributions erode that disparity of initial contribution |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) |
Coghlan (2005) FLC 93-220
Godfrey & Sanders [2007] FamCA 102
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Mallett v Mallett (1984) 156 CLR 605
Pierce v Pierce (1999) FLC 92-844
Way v Way (1996) FLC 92-702
| APPLICANT: | MS DEAL |
| RESPONDENT: | MR ZIMMERMAN |
| FILE NUMBER: | MLF | 1242 | of | 2005 |
| DATE DELIVERED: | 3 MAY 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 26 & 27 April 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sweeney |
| SOLICITOR FOR THE APPLICANT: | Adrian Abrahams Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Clarke |
| SOLICITOR FOR THE RESPONDENT: | Peter Lynch, Solicitors |
Orders
The husband and the wife equally share the responsibility for making decisions about all major long-term issues in relation to the child, a daughter, born in January 1999.
Pursuant to s 65DAC (2) decisions relating to major long-term issues about the child be made jointly.
For the purposes of s 65DAC (3), the husband and the wife consult with each other about all major long-term issues (as defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”)) about the child, such consultation to be by email and in default of agreement about any such issue, the parties attend (and not necessarily simultaneously) upon a Family Relationship Centre counsellor to make an attempt to resolve such issues.
RESIDENCE
That the child live with the husband as follows:
(a)from the conclusion of school on Thursday until the commencement of school on the following Monday (or Tuesday if Monday is a gazetted public holiday) in each alternate week commencing 10 May 2007; and
(b)from the conclusion of school on Thursday until the commencement of school on the following Friday morning in each alternate week commencing 17 May 2007.
That the child live with the wife at all other times.
DISCHARGE EXISTING ORDERS
That as and from 10 May 2007 the orders made 12 July 2004 are discharged.
SUSPEND DURING SCHOOL HOLIDAYS
During all school holiday periods including the long Summer holidays, the provisions of paragraph 4 of these orders are suspended and shall resume immediately after school resumes as if they had not been so suspended.
SCHOOL TERM HOLIDAYS
Unless otherwise agreed, the child spend time with the husband as follows:
(a)for the first half of all school term holidays that commence in even-numbered years; and
(b)for the second half of all school term holidays that commence in odd-numbered years;
Unless otherwise agreed, the child spend time with the wife as follows:
(a)for the second half of all school term holidays that commence in even-numbered years; and
(b)for the first half of all school term holidays that commence in the odd-numbered years.
All school term holidays shall be deemed to commence at the moment the child leaves school on the last day that she attends school for the term and shall be deemed to conclude at 5 pm on the day prior to the child returning to school.
SUMMER HOLIDAYS
That the child spend time with the husband for one half of all long summer holidays during dates to be agreed and in default of agreement, the first half in all odd-numbered years and the second half in all even-numbered years;
CHRISTMAS
That the child spend time with the husband from 2 pm on 24 December 2007 until 3 pm on 25 December 2007 and for a similar period in each alternate year thereafter.
That the child spend time with the husband from 3 pm on 25 December 2008 until 6 pm on 26 December 2008 and for a similar period in each alternate year thereafter.
CALCULATION OF LONG SUMMER HOLIDAYS
In calculating the long summer holidays in each year the parties shall exclude the period from 2 pm on 24 December until 6 pm on 26 December regardless of the fact that it interrupts the first half of the long summer holidays.
All long summer holidays shall be deemed to commence at the moment the child leaves school on the last day that she attends school for the final term and shall be deemed to conclude at 5 pm on the day prior to the child returning to school in the following year.
HANDOVER
For the purposes of all changeovers, if not at school, the child shall be delivered by the wife or her nominee to the outside of the husband’s residence at the commencement of the period and returned by the husband or his nominee to the outside of the wife’s residence at the conclusion of the period.
TELEPHONE COMMUNICATION
That each of the husband and the wife communicate with the child by telephone when she is not in their care at all times reasonable and in default of agreement as to what is reasonable, every third successive night that the child is away from the parent at 6.30 pm for up to 30 minutes, the parent then caring for the child telephoning the other parent’s nominated telephone number and facilitating the telephone conversation between the other parent and the child.
FATHERS’ DAY, MOTHERS’ DAY, CHILD’S BIRTHDAYS
The husband spend time with the child:
(a)on Father’s Day from the Saturday evening at 6 pm of that weekend until 6 pm of the Sunday (and at that time, the husband shall return the child to the wife if it is her weekend to enable the child to be taken to school on the following Monday morning by the wife);
(b)on each of the child’s birthday and the husband’s birthday from the conclusion of school until 6 pm if a school day or from 8 am to 1 pm if on a weekend which is not the husband’s weekend with the child.
The husband’s time with the child under these orders is suspended during the following periods:
(a)On Mother’s Day from Saturday evening at 6 pm of that weekend until 6 pm of the Sunday (and at that time, the wife shall return the child to the husband if it is his weekend to enable the child to be taken to school on the following morning by the husband);
(b)On each of the child’s birthday and the wife’s birthday from the conclusion of school until 6 pm if it is a weekday when the child is to spend time with the husband under these orders or from 8am to 1 pm if on a weekend which is not the wife’s weekend with the child.
ATTENDING SCHOOL ACTIVITIES
Notwithstanding anything else set out in these orders, the husband and the wife may attend all school and extra-curricular activities of the child at which parents would normally attend.
ADVISING SCHOOL PRINCIPALS
That each of the husband and the wife have liberty to disclose the details of these orders to all principals and teachers of schools that the child attends and all hospital, medical, dental and other health professionals attended by the child.
ATTENDING MEDICAL AND OTHER APPOINTMENTS
Notwithstanding any other provision of these orders, the husband and the wife may each attend any appointment with any hospital, medical, dental or health professional relating to the child.
KEEP EACH OTHER INFORMED
That each party keep the other informed at all times of their mobile and landline telephone numbers and residential address.
PROPERTY
That the husband and the wife forthwith do all things required including signing any necessary document, to sell the home at G on terms and conditions to be agreed.
If the parties do not agree on the terms and conditions of sale including as to the real estate agent or conveyancer, each of the parties shall have liberty to apply in respect of such terms and conditions.
Upon the sale of the home, the proceeds of sale shall be applied as follows:
(a)first, to pay all costs, commissions and expenses of the said sale;
(b)secondly, to discharge any encumbrance affecting the home;
(c)thirdly, to pay to the wife 60% of the net balance plus a further sum of $13,333 ; and
(d)fourthly, to pay to the husband 40% of the net balance less a further sum of $13,333.
Should the necessity arise, each party shall have the right to bid at any auction sale pursuant to these orders.
That each of the husband and wife as soon as practicable, sign any necessary transfer or other document required, to transfer to the wife, at the expense of the wife, all of the parties’ interests in the Telstra shares and the ANZ Bank shares.
EACH PARTY OTHERWISE KEEP
That unless otherwise set out in these orders, the husband retain and the wife relinquish any interest in, any property and superannuation entitlements in the possession or control of the husband.
That unless otherwise set out in these orders, the wife retain and the husband relinquish any interest in, any property and superannuation entitlements in the possession or control of the wife.
COSTS APPLICATIONS
That save as to any issue of the costs as between the parties, the application of the wife filed 16 August 2004 and the response of the husband filed 28 June 2004 and amended response filed 24 October 2006 are dismissed.
That any issue as to costs be determined upon written submission to the Honourable Justice Cronin and any such application for such costs:
(a)be filed with the Associate to Justice Cronin by 4 pm on 11 May 2007; and
(b)be served upon the other party by that date.
That in the event that an application is made for costs by either party pursuant to paragraph 32 hereof, the other party shall have until 4 pm on 18 May 2007 to reply.
If no further application by either party is filed by the date referred to in paragraph 32, all applications shall be deemed to be dismissed.
That all proceedings be otherwise removed from the list of cases awaiting a hearing.
Pursuant to s.65DA(2)and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED:
All material produced pursuant to subpoena may be returned to the recipient of the subpoena.
All exhibits may be returned to the practitioner producing them after 4 June 2007.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Deal and Zimmerman.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 1242 of 2005
| MS DEAL |
Applicant
And
| MR ZIMMERMAN |
Respondent
REASONS FOR JUDGMENT
These are proceedings for parenting orders and the division of property.
The parenting orders revolve around the daughter born in January 1999 who is known by her parents and referred to throughout the proceedings as M. She is eight years of age.
The property proceedings involve a modest pool of just over $500,000 but the principal asset is the former matrimonial home the equity in which is just under $500,000. The parties therefore have little other than that equity.
Background
As I shall find below, the parties commenced living together in a committed relationship in 1994 in London and moved to Australia in 1996. They married in September 1996. They separated under one roof on or about early May 2004 and approximately six weeks later, the wife left the matrimonial home with the child. The parties have remained apart since that time.
The wife is aged 40 years. She holds qualifications as a jeweller but, on the evidence, I am satisfied that her main source of income is as an administrative assistant at a Melbourne University.
The husband is aged 46 years and is currently employed as a sessional teacher at an educational college.
The child is in Grade 2 at school and, after repeating Grade 1 in 2006, she now appears to be doing well and providing good report cards.
Interim orders were made in the Federal Magistrates Court of Australia at Melbourne on 12 July 2004 under which the child was to spend time with the husband each week from 9.00am on Sunday until the commencement of school on the following Wednesday morning. The child was to spend the rest of the week with the wife. These orders were made by consent of the parties and subsist today. The changeover has occurred at the wife’s home on the Sunday mornings. It also occurs at her home on Wednesdays when the child is not at school.
The parenting issue
The question I have to deal with is what is the appropriate arrangement in future. I shall turn to the specific factual issues in dispute between the parties, particularly relating to their relationship, but it would be fair to say that they do not communicate other than by email and are clearly uncomfortable in the presence of each other. The husband’s view is that the relationship may improve with counselling but the signs for the future are not good.
In these proceedings, I had the benefit of extensive affidavit material from each of the parties and from a variety of people who were not called to give evidence. I shall refer to these witnesses as well. In addition, I had the benefit of a comprehensive family report from psychologist, Ms D. Ms D was appointed as a single expert and her qualifications and expertise were accepted by both parties.
In the years prior to separation, each party asserted that they had a significant role in the care of the child. The wife said that both she and the husband shared the role of taking the child to kindergarten. The husband disagrees with that claiming that he alone undertook that task. The wife’s view was that the husband picked up the child at night because she was working but she took the child to kindergarten in the morning. When she was working in the city, she had to leave early and hence drove the child to kindergarten on the way.
There was much debate about exactly what days and hours each party worked and what involvement the husband’s mother had in the care of the child. In my view, it makes little difference in this case because I find that it was the wife who was primarily responsible for the day to day management of the child. Since separation, that has been the case as a result of the consent orders.
Notwithstanding that delineation of roles, there was on the evidence, a subtle difference between the two caring roles. Each party endeavoured to highlight specific concerns about the role of and the care by, the other.
The views of the parties about the role of the other
An issue for the husband was that the wife is living in a community of artistic people and that there were no other children around. The wife, however, was able to explain in some detail the names of the children that were friends of the child and who stayed at various weekends each month at her home. Ms D was asked about the absence of children in the immediate area but she indicated little concern. On the evidence, I am satisfied that the wife has made social interaction with other children a part of the child’s life by not only inviting children to come and stay at her house, but also having the child stay at the homes of other friends.
The wife was also questioned about the activities in which she was involved with the child. It must be remembered that the husband asserted to Ms D that he did more with the child than did the wife. The wife, however, in cross-examination was able to tell me about the child’s swimming activities, horse-riding, kite flying and an attendance at the Melbourne Museum last year. She reported that the child is involved in basketball which arose from the fact that the school had requested some involvement in ball-skill activities for the child. The wife was questioned about the lack of ballet or jazz dancing and acknowledged that it was she who took the child to rehearsals but not to the concert because the tickets were $40 each and she felt that that was too expensive. I saw no reason to be concerned about the activities of the wife in relation to the care of the child and, contrary to the assertion of the husband that the child did little by way of activities with the wife, I find the wife is a thoughtful and responsible parent in respect of that type of activity.
Notwithstanding objection from counsel for the wife that his counterpart was going beyond matters in re-examination of his client that he should have, I permitted the husband to give evidence about the activities that he was involved in with the child. I did so because I felt that I did not fully understand the involvement of the husband with the child beyond the rhetoric in the affidavits. Having done so, I was satisfied that the husband does involve himself in activities with the child but in a different way to the wife. Where the wife has a one-to-one involvement with the child, the husband surrounds himself with family, adult friends and other children.
The wife was critical of the husband for failing to facilitate telephone communication with the child whilst in his care. Counsel for the wife pursued this issue with some vigour and the husband maintained that the wife could have rung the child. It was only after some careful thought that the husband conceded that it was really his responsibility to ensure that the child rang her mother.
The wife’s counsel also endeavoured to show that the husband did not have as much involvement in the reading activities of the child as he would have the court believe. Counsel showed the husband the child’s school reader record and highlighted that the signatures were predominantly those of the wife. The husband had a plausible explanation for that in saying that if the wife had already signed it, he would not do so. He said the wife was the first to see the reader record because it came home with the child on the Wednesday night when she was with the wife. The husband maintained that he still did reading with the child and particularly having regard to the evidence of the witnesses who provided affidavits, I have every reason to believe that what he said was true. I accept that he is a devoted and involved parent.
The wife said that the child found it difficult to sleep at the home of the husband and that it took her time to settle upon return. She described her as “agitated”. I was unable to make any finding about the reasoning behind this but have presumed that it was just a child endeavouring to adjust between two very different households in circumstances where she was very much aware of the conflict between her parents.
Accordingly, I find that there are differences between the parenting styles of the parties but not anything about which I could be critical.
The evidence of Ms D
Ms D saw the parties in October 2006 and completed her report on 26 October 2006. She examined various issues raised by each party.
Ms D reported the wife as saying that the routine for the child needed to be changed because it did not work in the child’s interests and in particular “it doesn’t seem to be working with the school”. Interestingly, there was no evidence of this.
Ms D reported the wife as saying that the child’s relationship with the husband was “changeable” and that the child was constantly saying negative things about her father on the one hand, but then good things in the next sentence. Essentially, Ms D reported the wife as saying that the child should be in her care more than the husband because of the quality of care and nurturing that she had provided historically. Ms D noted the wife’s assertion that the husband worked during evenings instead of caring for the child, leaving her in the care of his mother, the consequence of which was that things such as the school reader were not completed.
The husband was cross-examined about this distinction by Ms D and maintained that he was equally attuned to the needs of the child. His explanation for why Ms D had come up with such a difference was that he was nervous at the interview. Having regard to what I have read and specifically what Ms D was cross-examined about, I find that she had a good opportunity to see the parties and the child and has provided a balanced and professional opinion which I accept.
Ms D reported that the husband saw that he did different activities with the child than did the wife and that with the assistance of his family or a friend, he was able to collect the child from school. She reported that the husband’s concern related to the “ulterior motives” of the wife but, realistically, he felt that there were significant differences about parenting. His view was that he was a better father than the wife was a mother. He pointed to the transient lifestyle of the mother who he said was embroiled in her jewellery business which necessitated her doing little with the child. His objective, he claimed, was to have the child leading a normal life.
Ms D made two important observations. The first was that the husband did not focus on issues concerning the child’s daily care in the same way as the wife. Secondly, and most importantly, having regard to the child’s age, she felt that the child needed to be in her mother’s care for most of the time as the child was still young enough to require the daily nurturing which the wife had identified.
Notwithstanding all of that, Ms D said that the wife had proposed a split of time between the parties so that she had eight nights and the husband had six. When the case opened before me, it was abundantly clear that that was not the position of the wife at all. How that came about was that the wife had told Ms D that one of her concerns was that the child did not have the opportunity to spend a whole weekend with either party because of the sharing arrangements and she had proposed as an interim arrangement to try and settle the matter that she have eight nights in each fortnight and the husband have six.
The cross-examination of Ms D on this issue was quite telling. She made it clear that the wife had told her that this proposal was only to enable a settlement to be achieved. I am quite satisfied about that. What is clear, however, is that the proposal was not accepted by the husband.
When asked by counsel for the wife what she thought was in the child’s best interests, Ms D said that it should be either Thursday or Friday through to the following Monday in each alternate week together with one overnight in the other week and perhaps an evening meal on another night. She stressed that, in her view, the child needed a maximum time apart from both parents of about five nights.
Each party had focussed on changeovers and Ms D made clear that her understanding was that the child “hated” changeovers. On the evidence, I am quite satisfied that the logic behind the child’s view was that she had been witnessing not only bickering but also clear conflict between her parents.
Counsel for the husband asked Ms D whether she thought the eight/six nights was appropriate and she indicated that not only did she think it not appropriate but that it was not ideal either. Her view was that she would support such a concept only if it settled the matter and led the parties to a co-parenting arrangement. On the evidence that I have at the moment as to the level of communication between the parties, it is hard to see them co-parenting the child. I can certainly imagine them parenting “in parallel” with one another by which I mean that each does things which are in the best interests of the child, but that they do not communicate about policies such as discipline, extracurricular activities or, it would appear, even schooling.
Counsel for the husband queried how Ms D could be adamant about her recommendation yet not be troubled about an equal sharing of holiday time. Ms D said that children understood holiday periods to be different from the routine that is required for a child during a school period.
When challenged about what it was that the wife did better than the husband, in relation to the child, Ms D said that it related to the child’s health and hygiene and, in particular, the way the wife looked after the child’s clothing, emotional needs and her presentation. Having had the opportunity to hear each of the witnesses, I am satisfied that it is the wife who is more focussed on the daily needs of the child and that, notwithstanding the history of the wife’s working involvement over the years subsequent to the child’s birth, she has been the parent who has been most responsible for those daily activities.
I find that Ms D’s view about the distinction between the husband and the wife is correct.
The husband smacking the child
The wife reported that in 2005, an incident occurred in which the care worker for the after school care program reported to her that she found the child sitting under a blanket saying that the child wanted to kill herself and that her father “hits” her. The matter was investigated by the Department of Human Services who felt it was not necessary to do anything about it.
The husband’s response was to suggest that this incident occurred the day after the wife had seen psychologist Mr B and that the question of “smacking” had been raised and that the child had overheard. I am not able to make any finding about whether the child did, or could have, overheard any discussion between the psychologist and the wife, but more importantly, I am not satisfied that it makes any difference in this case.
In her affidavit (paragraph 15) the wife asserted concerns raised by the child including that her father had “smacked” her, made her cry and would not allow her to telephone the wife. In the evidence of Ms D, the following statement appears:
It is abundantly apparent, however, that [the child] is loyal to both parents. During her interview with the psychologist she did not put herself in any position where her responses could have been interpreted as making a choice of one parent over the other; and neither should [the child] ever be put in this position.
In observing the child with her father, Ms D had little to say. I inferred that there was nothing unusual about the relationship between father and daughter. Ms D reported:
In summary there was little observed difference in the interaction between [the child] and each parent.
The child reported to the psychologist about her father “smacking” her but it did not excite the interest of the psychologist who said that the child was:
Keen to add that she did not have any parents that hurt her.
Ms D reported that she was not troubled by what the child told her about the apparent discipline by the husband and more importantly, during 2006, the wife was at least prepared to contemplate an eight/six arrangement on an interim basis to settle the matter. She would not have done that had she been troubled about the truth of what the child was telling her.
The “smacking” issue has not affected in my decision.
Family violence and open conflict
The two issues of some concern to me, however, are the questions of family violence which occurred prior to separation and the conflict between the parties that has continued subsequent to separation.
In respect of family violence, the wife asserted:
18.The husband has often acted in a threatening and intimidating manner and on regular occasions has raised his arm as if to strike me. The husband struck me on two occasions, he would also grab me by the upper arms and shake me causing bruising to my arms. He has pushed me, squeezed my arms, smashed glass, thrown furniture and my jewellery and hit me. The husband has also regularly disciplined [the child] by not only shouting at her, causing her to shrink from him, but by smacking her heavily on her bottom and legs over and over again. He also struck her across the ear on two occasions that I know of. The husband has ignored my requests in the past to stop this behaviour. On more than one occasion when we lived at [the matrimonial home] the husband's hand-prints were left on [the child] after he smacked her hard.
19.On one occasion in 2003 the husband lost his temper and while yelling abuse at me in my workshop threw a large piece of wood at my face. I put my hands up in front of my face and the wood hit, lacerated and bruised my wrist leaving a scar which is still evident and can be seen in photographs attached herewith and marked "A". As a result, I could not use my left hand for two weeks in my work. The husband refused to apologise for this or any other abuse, saying "You brought this on yourself'.
…
21.In early 2003 the husband began to exhibit bouts of uncontrolled anger with both [the child] and me. He aggressively shouted at [the child] and me. On occasion he threw things at me such as a pay-in book and threatened to hit or slap me, raising his hand as if to do so. On two occasions I have lightly slapped him to try and get him away from me when he stood close to me in a threatening way. On both occasions he has slapped me back in the face with great force making my face turn red and leaving a hand mark. On one occasion in 2003 he knocked my jewellery out of my hands and threw furniture around the room and he has smashed the glass on my workbench.
22.In 2001 and in 2004 the husband on two occasions grabbed me by my upper arms and shook me causing bruising (see photographs attached herewith marked "B" and "C") which shows bruising to my arms.
23.On the occasion in May 2003 the husband came into my jewellery workshop, yelled at me and shook me. There was a hammer on the work bench and he stopped and stared at the hammer. I was afraid that he would pick the hammer up and hit me over the head with it. He grabbed me by the upper arms and shook me causing bruising to my arms.
In respect of the allegation of the wife in paragraph 18 of her affidavit, it was put to the wife in cross-examination that the threat never occurred and that he did not hit the wife at all. The unusual feature of this incident was that without any hesitation, the wife not only conceded but volunteered in cross-examination that she slapped the husband first and that he then turned on her and slapped her harder than she had hit him. Thereafter what followed was the husband grabbed her by the shoulders and shook her leaving bruises.
The husband’s version was most apparent from his counsel’s cross-examination of the wife. He made clear that the husband denied ever hitting the wife and that applied to each of the accusations to which I now turn.
In paragraph 19 of her affidavit, the wife referred to being hit with a large piece of wood thrown by the husband. During this incident, she said that he was yelling abuse at her in her workshop.
Cross-examination of the wife on this issue centred more on an assertion by the husband that he pleaded with the wife to go to counselling. She would not concede that the husband pleaded that she acknowledged that the parties did go to counselling on a number of occasions. The photographs attached to the wife’s affidavit clearly indicate lacerations and bruising.
In paragraph 21 of her affidavit, the wife asserted that the husband threw things at her and raised his hand as if to slap her. She conceded that on two occasions she “lightly” slapped him to try and get away when he stood close to her in a threatening way. She said that on each occasion he slapped her back with greater force than she had applied to him.
The wife was cross-examined about the fact that this was a false allegation. It was asserted that no such allegation had ever been put in a previous affidavit. The wife’s response was that she was not happy with the legal advice she was then getting and attributed the absence of such allegations to her former lawyers.
In paragraph 22 of the wife’s affidavit, she refers to the fact that the husband in 2001 and 2004 grabbed her by the upper arms and shook her causing bruising. Annexed to her affidavit are some photographs which show bruising to her arms. She said that she took the photographs herself.
In paragraph 23 of the wife’s affidavit, she made reference to the fact that in May 2003, the husband came into her jewellery workshop, yelled at her and shook her. To this accusation, cross-examination was directed to the fact that she had simply made it up.
Apart from the photographs tendered by the wife which clearly showed bruising and a wrist cut, I only have the word of each of the parties as to what happened in respect of the incidents referred to. In making findings in respect of these matters of family violence, I have relied upon an assessment of each of the parties to which I shall now turn.
Assessment of the parties
Each counsel pointed out that the allegations of assault and family violence were matters about which I would be asked to make findings. The parties steadfastly maintained their respective positions. A finding in respect of family violence becomes important for the purposes of the presumption of shared parental responsibility.
The wife
I found the wife to be a calm, intelligent person whose focus was clearly on giving me an accurate account of events. I had the benefit of observing her demeanour in court. She was decisive in her evidence. When challenged about the date of an incident, she asked for the opportunity overnight to consult her diary and, on the following morning, readily acknowledged that she had been “a year out”.
When challenged about the renovations to the first home whilst looking at a recently-prepared list by the husband, she was able to comprehensively describe what work was done in far more detail than that set out in a generalised way in her affidavit.
In respect of the very commencement of the relationship, she was able to proffer certainty about the date because it was just after “Valentines Day”.
There were a number of issues like these above that were broached in cross-examination and the wife’s responses were spontaneous, descriptive and plausible.
Least it be said that the wife was without blemish, I was puzzled at her attitude about confronting the husband regularly at handover until approximately six weeks before the hearing in circumstances where she knew there was going to be conflict in front of the child.
I was similarly less than impressed about her email correspondence with the husband who had sought on one occasion to alter a weekend with the child. The email tendered to me smacked of control by the wife. Having said, that I found her to be honest.
The husband
The husband appeared as a quietly spoken man who is clearly intelligent and articulate. He seemed to have difficulty however with the question of the importance of the wife’s role in both the marriage and the child’s future.
In respect of the parties’ contributions, he was at pains to point out that there was a difference between he and his wife and that he was “ahead” in respect of the period subsequent to the commencement of the relationship. Counsel for the wife was at pains to differentiate between the contribution that the husband had made in bringing in property from the contribution during the marriage so there could be no misunderstanding about what was being discussed.
The view of the husband that he was “ahead” was an interesting perception because it was not one supported by his counsel in final address.
In relation to the commencement of the relationship, when pressed, the husband altered his position on a number of occasions. I would not be prepared to say that he prevaricated on this issue but when faced with a contradiction, he had to acknowledge that the position that he had sworn to was not right. On the issue of when the relationship commenced, I shall return to that subject in the financial matters in these reasons.
The list of renovations prepared by the husband about which the wife was so spontaneous was acknowledged to be a reconstruction by him. His response was that he had no choice because he did not have access to the receipts other than one document. The last two examples to which I have referred, indicated to me that the husband wanted to portray himself in a better light than the reality and he found himself floundering.
In respect of financial matters, he seemed astute but had difficulty grasping an obvious concept put to him that he had prioritised his own financial wishes over his obligations for child support.
The husband also holds a puzzling view that the wife’s standard of living is somehow inappropriate for the child notwithstanding that she would have spent considerable time with the wife even on his proposal. The husband’s reference to the wife living in a “commune” was inappropriate when he was a regular visitor to what appeared to be a modern home opposite a number of other houses in which artists lived. The “commune” issue became something of a mantra even in the husband’s counsel’s final address. I was shown photographs of the house and surrounds and I was told that the wife lives opposite a group of houses where artists live. It was clear that the wife did not live in a “commune”. Just exactly what criticism I was expected to make apart from the absence of social interaction with other children in this area, I am not clear.
In assessing the witnesses for the purposes of determining which version I was to accept about the family violence based on the general assessment to which I have just referred and in particular, the assessment of accuracy, I have little doubt that the wife’s version is the correct one. Accordingly, on the balance of probabilities, in respect of each of the issues referred to in paragraphs 18 to 23 of the wife’s affidavit, I find the wife’s version correct.
Conflict
It is clear that at the time of separation, the relationship between the parties had broken down. They could not communicate with one another and it was volatile.
The wife reported that when the husband collected the child on Sunday mornings at 9.00am, there was “always conflict”. The wife reported that the husband had been coming to the front door to collect the child and that he would then just start an argument. In part this was because of the fact that the wife took the child out to the husband’s car. It seems that he arrived in what was a quiet residential area and the wife was concerned not to disturb her tenancy or neighbours if the husband honked his car horn. She said that she always took the child out notwithstanding the potential conflict because she felt that the child was too young to be simply pushed out the door to her father. As I mentioned earlier, this situation continued until approximately six weeks before the hearing.
Counsel for the husband asked why it would not have been easier for her to avoid the conflict by not going out. In addition to referring to the fact that the child was too young to go out alone, the wife said that on a previous occasion the husband had left the child standing on the driveway and driven away. However, it was clear on the evidence that that incident occurred over two years before and was really unrelated to the sorts of issues about which she was talking.
I am also critical of the husband in respect of an incident in which he attended at the wife’s house demanding the use of the child’s boots for a family communion day. The wife said that she did not think that the child would be going to the function because she had been sick. She said that the husband was banging threateningly on the door whilst she and the child were inside. That incident must have been frightening for the child regardless of who was the cause of it.
The wife was adamant that for the last six weeks, this problem had gone away predominantly because of the fact that she was no longer coming out to the car and hence, was avoiding the conflict. When I asked how she proposed to communicate with the husband over issues relating to the child, the wife replied that she was now doing it by email.
It is interesting to note that the wife referred to the fact that the conflict was now only being avoided. The husband’s view as presented to Ms D in October 2006 was that “Lately it’s been quite good; not too bad”.
The husband’s supportive witnesses
Ms C swore an affidavit on 28 September 2006. She had known the husband for a short time and her daughter and the child were close friends. Having observed the child, Ms C saw no signs of unhappiness, undue stress or complaint by her. Most importantly, she said she had not seen the husband act inappropriately towards the child.
Ms J swore an affidavit on 28 September 2006. She is a neighbour of the husband and described the child as having a lot of friends in the neighbourhood. Like the witness referred to earlier, she saw no signs of unhappiness in the child and otherwise referred to the husband as a “normal dad”.
Ms A swore an affidavit on 28 September 2006. She is the husband’s sister. She described the child as an outgoing and sociable child which she contrasted with the wife’s personality. She said that the wife was very unsociable and introverted. She referred to the fact that the wife did not relate well with other people. Ms A was involved in the collection of the child during 2003 and during 2004 had occasional time to care for her during school holidays or weekends. She reported a strong relationship between father and daughter and she said that she had never seen the husband act inappropriately in relation to the child.
Ms A was not complimentary about the wife in that she said that she could not say that on any occasion did the wife have a kind or supportive word to say about the husband. Sadly, I have to make the observation that whilst Ms A did not make any similar comment about the husband, my observation of him was that he had difficulty finding anything complimentary to say about her.
Ms R swore an affidavit on 26 September 2006. Ms R is a teacher/interior designer who has known the husband for many years. She attended the parties’ wedding. She described the husband as a very “hands-on” dad who involved himself in the kitchen with the children cooking as well. She said that she watched the husband monitor the child’s progress with reading and was actively involved in the reading programs at the child’s school. I have to contrast that with the husband’s own evidence that he was on the roster at school in 2004 and 2005, attending probably 10 times but that since then, he has not been as involved. He has indicated that he intends to resume that involvement in the weeks ahead. Ms R otherwise saw the child as a very intelligent, social little girl.
Ms F swore an affidavit on 4 October 2006. She had known the husband for just over one year. She said that she began a relationship with the husband. She and the husband do not live together. She sees the child most Sundays when she is involved in the family activities involving the husband. She was also complimentary of not only the happiness of the child but also the husband’s active involvement in the child’s life. She said that she had developed a strong relationship with the child. Just what future involvement Ms F will have in the child’s life is not known.
Ms L swore an affidavit on 18 September 2006. She had known the husband for 3½ years through the child’s dancing. Her observations were mainly directed to what happened at the dancing classes but she opined that the husband was a loving and devoted father.
Mrs Zimmerman swore an affidavit on 28 September 2006. She is 77 years of age and the mother of the husband. Her affidavit was directed to the background of matters covered very much by the parties themselves. She said that she had observed her son’s interaction with the child over many years and commented that the child related warmly, openly and spontaneously with the husband. Contrasted with that, she said that the wife had a personality entirely different to the husband and the child. She described the wife as introverted and withdrawn. She said that the wife rarely interacted with her whilst she was caring for the child. I am not sure that I can draw too many conclusions from her views about the wife having regard to the fact that on her own evidence, her observations of the wife were limited.
She described her son as an easy going and social personality who was extremely even-tempered. As a result of findings that I shall make, I have some difficulty with that evidence but make no criticism of the witness because apart from the fact that she was not cross-examined, there was no evidence that she had witnessed any of the scenes between husband and wife to which I shall later refer nor, on her own evidence, did she see much of the wife in any event. The husband’s mother also went on to say that she had seen her son discipline the child on occasion and that he had never used any excessive force. I shall turn to that issue below.
Ms V swore an affidavit on 2 October 2006. She has known the husband for many years and she described him as one of her closest and most loyal friends. Ms V was in fact the matron of honour at the wedding of the husband and wife.
Ms V described the husband as always being the primary caregiver of the child. She said that it was the husband who took the child to things such as birthday parties, dancing lessons and family visits and that she had rarely seen the wife. She said that in 2003, the wife taking the child overseas for six weeks was viewed by the wife as an imposition. The suggestion by the witness was that the wife had to be enticed to take the child with her. Ms V described the husband as a “hands-on” dad who always kept a watchful eye over the children. She reported much the same observations as the other witnesses who had sworn affidavits. She said that on the other hand, the wife had displayed very little interest in her children nor witnessed her displaying open affection and love for the child. Whilst this evidence was unchallenged, I have to contrast it with the tested evidence of the parties and the expert evidence of Ms D.
Ms I swore an affidavit on 11 July 2006 but she was also called to give evidence. She has known the husband for many years. She referred to the early years relating to the relationship between the parties and when it was put to her about the nature of the relationship between the husband and the wife in London, she was adamant that the husband and wife were not living together as boyfriend and girlfriend until 1996. This was a witness who had observed the parties in London in those early years albeit that it was a long time ago but I had to form the impression from her evidence that she was very much a supporter of the husband. Having regard to the cross-examination of the husband about the commencement of the relationship, I found it hard to accept that there was much objectivity about the evidence of Ms I.
None of the witnesses other than Ms I was called for cross-examination and I have found their evidence helpful in most cases although much of what they have said in respect of the capacity of the husband as a parent was acknowledged by the wife.
Legal issues
Parental responsibility for decisions about children
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child.
Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child.
Because of s 61C(3), joint parental responsibility is subject to any order of the Court and s 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Parenting orders
Section 64B(2) provides that a parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 64B(3) provides:
a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
Major long-term issues are defined to be issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
The objects and principles of Part VII
The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:
(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 60B also makes provision for an Aboriginal child or Torrens Strait Islander child being able to enjoy their culture but in this case, that provision does not apply.
The best interests principle
Fundamental to my decision in this case is s 60CA which says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Parliament chose to distinguish between primary and additional considerations and some explanation for that may be found in the explanatory memorandum at paragraph 49 where it was said that it was done to elevate the importance of the primary factors and to:
better direct the court’s attention to the revised objects of Part VII of the Act.
Very little turns on that and I respectfully adopt the views of Kay J in Godfrey & Sanders[1]:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
[1][2007] FamCA 102
Each of the factors is important but the focus should initially be on the primary considerations.
Parliament went on to add separate but equally important factors which again focus the court’s attention on how parents have fulfilled their respective responsibilities in a serious and meaningful way.
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The presumption
As I do intend to make parenting orders, s 61DA requires that I apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This exercise needs to be undertaken before the determination of what parenting order should be otherwise made.
Section 61DA provides:
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
The rebuttal of the presumption arises from a finding of family violence. Family violence is defined in s 4 of the Act as follows:
conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
The Legislature has added the following note:
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
The definition requires a person to reasonably fear for or be apprehensive about, their personal wellbeing or safety. It is a simple definition yet unlimited in time or severity. The inclusion of the word “reasonably” imports an objective element.
Based on the findings I have made, I am satisfied that the wife has not only been the victim of family violence but also has a fear of the husband.
On the basis of my findings, the presumption is rebutted.
The best interests principle and the presumption
Even if those findings were not sustainable on the evidence, s 61DA(4) goes on to provide a second limb for the rebuttal of the presumption where it would not be in the best interests of a child to have the parents equally responsible. It says:
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.
In this case, I have made findings about parenting responsibility based on the evidence and I find that for the purposes of the presumption, it would not be in the best interests of the child for the presumption to be applied. To achieve that position however, I have examined all of the s 60CC factors and I shall set those out below.
That conclusion about the presumption does not mean that I should simply ignore the issue of the responsibilities each parent has to parent the child. Each parent still seeks a sharing of the responsibility albeit in different terms.
To all intents and purposes otherwise, the husband has a significant interest in all major long-term issues that are defined in the legislation as I set out above.
I am therefore concerned to ensure that the husband continues to have a significant involvement in the planning of the child’s future jointly with the wife. I propose to ensure the continuation of that involvement by the orders that I make. In doing so, I am very conscious of the evidence of Ms D that there should be no more than five days for the child between physical contact with each parent. That has to be tempered with two concerns:
(a)the need to reduce the obvious conflict between these parents when handover occurs; and
(b)the need for [the child] to predominantly continue to have the nurturing of her mother.
Section 60CC
In respect of her relationship with each of her parents, notwithstanding all of the negative things that I have expressed above, I am quite satisfied on what each party has said and also on the views of Ms D that the child enjoys a very close, warm, loving and supportive relationship with each parent.
Although each party expressed the view that they were supportive of the relationship of the other, I have some reservations about each of them in respect of facilitating and encouraging a relationship between the child and the other parent. I do not think this is a case in which I could say that either parent should be given less time or less responsibility based on their attitude to parenting.
Although I am proposing to reduce the time and frequency of time between the husband and the child, I do not think that the orders I am proposing to make will have any adverse effect upon the child. I have the evidence of Ms D in support of that concept. The orders that I propose will enable the child to spend significant leisure time with the husband but also enable her to see how he manages routine daily activities such as getting her to school and appointments. However, based on the strong evidence of Ms D, I find that the wife should have the greater daily management role of the child because of both her capacity and the child’s need for the nurturing of the wife.
There is no practical difficulty or expense associated with the child spending time with and communicating with each parent because each is living within a reasonable proximity of the other at the moment. I have no evidence of where the husband will live after the sale of the house but I am left with the impression that he will not be far from the child. The wife has made it clear that she wishes to stay somewhere in the area close to the current school.
Subject to my reservations about each party, each parent has the capacity to provide for the needs of the child both at an emotional and intellectual level. Again, on the evidence of Ms D, the wife has a better understanding of the child’s needs. Each party must, however, put the past behind them and concentrate on what is best for the child.
There are no lifestyle, culture or tradition issues associated with either parent, nor are there any Aboriginal cultural issues that I need to take into account.
I have already expressed my reservations about the attitude that each parent demonstrates in relation to the responsibilities of parenthood in respect of the conflict that is ongoing. There is sufficient evidence to criticise both parents as I have done. It is my intention by making parenting orders to ensure that not only the child enjoys the benefit of a meaningful relationship with each parent, but that each parent knows that they have a responsibility to ensure that the other parent is involved in a significant way in the child’s life. Absent all of the negative things about family violence in all its forms to which I have referred, each party otherwise demonstrates a responsible attitude to parenting.
I have taken into account the family violence as I have set out in my findings above. Those matters have made a difference to the question of the capacity of each parent to work together harmoniously. With the orders I have in mind, I would not expect that there would be any situation in the future where there is a need for the parties to confront one another.
I have been very conscious of the fact that the parties have been through traumatic litigation over the past two years. They need it brought to an end for the sake of the child as well as themselves. On that basis, I think it preferable to make orders of a final nature with a view to ensuring that further proceedings are unnecessary.
Part VII of the Act also requires a court to take into account and to consider the extent to which each parent has fulfilled or failed to fulfil their responsibilities as parents particularly in relation to the participation in decision-making of major long-term issues and also the daily activities of the child. I have made findings that are critical of both parents. I repeat that that is the basis upon which I have decided to make the precise orders that I have.
Section 60CC(4)(c) also requires that the Court consider the extent to which a parent has fulfilled or failed to fulfil an obligation to maintain the child. In this case, the husband has paid child support as assessed or arranged but as I shall set out below in respect of financial matters, I was left with an uncomfortable feeling that he saw child support as not being something from which the child would benefit but rather that it was being used by the wife. That came across in his evidence about the question of his determination of priority of spending. Section 60CC is referring to the obligation to maintain a child. That, in my view, means looking really to the needs of the child and ensuring that wherever possible, those needs are met. The artificiality of the formula oftentimes does not meet those needs. The husband’s attitude is that he will pay whatever he is required to do and that is unfortunate. It would be much better for he and the wife to sit down and work out what the needs of the child are.
Section 60CC(4A) also requires a court to consider the events that have occurred subsequent to separation. I have expressed my views about each parent’s role subsequent to separation in the findings I have made.
The orders I propose will enable the child to benefit from what I expect will be a meaningful relationship with her father and mother. The orders are in line with the view of the expert but I have made some changes. That will hopefully protect the child from the psychological harm of being exposed to her parents’ fighting and unpleasant behaviour.
I do not believe that the child is likely to be harmed physically by either parent.
Property proceedings
In paragraph 3 above, I set out that the parties had a modest pool of just on $500,000 to divide. I shall turn to the finer details of those figures in a moment.
In his amended response to an application for final orders, the husband sought (effectively) that the former matrimonial home be sold and that after a payment of $150,000 to the husband, the balance be distributed equally between the parties. Otherwise, the parties retain the assets that they then had. Cross-referencing those figures to the pool as I shall find it below, that amounts to a division of 68 per cent to the husband and 32 per cent to the wife in very rough figures.
Pursuant to an order that I made on 8 March 2007, the husband filed a document setting out the orders that he sought. He did not move from the position in his amended response to which I have just referred relating to property proceedings.
In final address, Mr Clarke of Counsel on behalf of the husband said that the house proceeds should be divided 60 per cent to the husband and 40 per cent to the wife, the various assets should otherwise lie where they were and that there should be no adjustment in relation to superannuation. Again, using the figures to which I shall turn in a moment as I find the pool to be, that amounts to around the same percentage division in each of the two steps that I have just completed.
The wife’s application filed in the Federal Magistrates Court of Australia on 22 June 2004 sought a sale of the home and a division as to 70 per cent to the wife and 30 per cent to the husband and that the assets otherwise stay where they were. Overall, and again using the same method to which I have just referred above, that sort of ultimate division gives the wife 63 per cent or thereabouts of the total assets and the husband 37 per cent.
In her trial document provided pursuant to my order made on 8 March 2007, the wife sought 65 per cent of the sale proceeds of the home and that the assets otherwise lay where they were and again using the same methodology, that would have left her with about 59 per cent of the net asset pool and the husband 41 per cent.
In his final address, Mr Sweeney of Counsel on behalf of the husband supported the application set out in the trial document and maintained that that was the wife’s position.
Least there be any misunderstanding, I make it clear that that notional exercise is instructive of where the parties were endeavouring to have the matter resolved. However, the calculations that I have done presume that the superannuation is to be treated as an asset in the normal way in the pool of assets, the house is sold for the price that the single expert expects as its value and there is no adjustment for motor cars and chattels.
When I set out the law below, I shall also make it clear that it is not the percentage value which must be just and equitable in this exercise but rather the underlying value of the assets that each party retains.
The legal issues relating to property
In determining the entitlement of each party to a division of their property, the court follows a four-step process. It is important to note that s 79(2) of the Act says that a court shall not make an order unless it is satisfied that in the circumstances, it is just and equitable to make that order.
In the process of a determination of the parties’ respective entitlements, a court is obliged by s 79(4) to take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) (of the Family Law Act) so far as they are relevant; and
(f)any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The four-step process taking those matters into account is, in my view, best set out in Hickey & Hickey & Attorney-General for the Commonwealth of Australia[2] where the Full Court said:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
[2] (2003) FLC 93-143 at pa 78,386
The pool
Each party presented a different pool for division. The wife’s pool was as follows:
Former matrimonial home $535,000
Telstra Shares 7,755
ANZ shares 4,789
Husband’s savings 10,900
Sub total $558,444
Less mortgage 68,000
Joint personal loans 7,500
Sub total $75,500 $482,944
Plus husband’s superannuation 39,432
Wife’s superannuation 17,120
Total $53996
In Exhibit W6 which was the document handed to me at the time of final submissions, there is included a claim for $3114 as a “Centrelink debt”. It was conceded that the debt had in fact been paid and I shall credit the wife with that by way of contribution.
The husband’s pool was as follows:
Former matrimonial home $535,000
Telstra shares 7,755
ANZ shares 4,789
CBA account 7,000
House contents 8,000
Barina car and Seat car 12,500
Husband’s superannuation 39,432
Wife’s superannuation 17,120
Total $623,596
Less mortgage 65,270
Nett $558,326
Counsel for the husband conceded that I should ignore the house contents of $8000 on the basis that each party had taken various items.
Although the husband’s original trial management document showed a valuation of the house at $480,000 it was conceded that the sworn valuation was $535,000. Similarly in respect of the mortgage, the figures vary significantly. In the end, it matters little because of the fact that the house is to be sold and the mortgage will be paid out.
In respect of the Telstra shares and the ANZ Bank shares, I was told that the husband wished to keep them although that was not in any of the documents showing the orders that he sought. I propose to leave those shares with the wife.
The husband’s savings were shown in the wife’s pool at $10,900 and in the husband’s pool at about $7000. I was given no evidence as to what the current balance is in the husband’s account but there was much evidence of the fact that at the time of separation, the husband had $10,900 worth of savings. Having regard to matters to which I shall turn in relation to the benefit that the husband has had from the use of the home and a boarder that lived with him who was paying more than the mortgage commitment, I am quite satisfied that it is appropriate to add back into the pool the sum of $10,900 as the savings of the husband.
The wife claimed $7500 as a liability for a joint personal loan to her parents. The only evidence that was given by the wife was a reference to a liability in paragraph 79 of her trial affidavit. Although the sum claimed was $7500, the Exhibit to her affidavit shows that a remittance was received from overseas in 1999 for $7464.54. Regardless of what the money was for, it would be inappropriate for me to simply accept the debt as $7500. There is no other evidence of what the intentions of the wife and her parents were but there seems little doubt that the money was used to buy a motor car. The husband was cross-examined at length about the money and was adamant that it was never a loan and that he had never spoken to the wife’s parents about it. He said that the wife had told him that it was a gift by her parents. When he was challenged about the fact that he had never put that in an affidavit before, his response was that he had never been “on the stand” before. However, it had equally not been a significant issue from the wife’s perspective. In her statement of financial circumstances, at Item 53, she referred to a personal loan from her parents as being $17,500. In her trial affidavit, at paragraph 97, she referred to the fact that she had to borrow $17,500 from her parents to pay her legal fees owing to her former solicitors. Accordingly, there is very little evidence about exactly what the nature of the arrangement was and whilst the wife was not challenged in respect of the debt, I do not think it is appropriate in the circumstances to find that it is a joint debt nor a debt that the wife is obliged to repay. It is now almost eight years since the money was provided by the parents and I am uncertain as to whether in fact it will be recalled. In the circumstances, I propose to ignore that debt.
There was also no evidence by way of valuation of the motor cars in the possession of the wife. In the husband’s statement of financial circumstances, he said that he had no motor car and in the wife’s case, her statement shows cars totalling $12,500. I propose to treat the motor cars as being worth $12,500 on the basis that the statement of financial circumstances of the wife is an admission against interest. On that issue however, the husband in his proposed orders sought one of the motor cars to be transferred to him. However it was not a matter of submission or argument. If the parties do desire to make adjustments by a transfer of the motor car, they are at liberty to do so after my orders and they would understand that I have used the values shown by the wife in October 2006.
Accordingly, for the purposes of the first step, I find the pool of assets to be as follows:
Former matrimonial home $535,000
Telstra shares 7,755
ANZ shares 4,789
Husband’s savings 10,900
Husband’s superannuation 39,432
Wife’s superannuation 17,120
Wife’s cars 12,500
Sub-total $627,496
Less mortgage 68,000
Net $559,496
Superannuation
The agreed position between the parties was that at the date of the hearing, the husband had entitlements to benefits with V Company of $25,416 and H Company of $14,016. Those were actually the values as at October 2006 but neither party argued that I should use any other values. It was also common ground that the wife’s entitlement to benefits from the V Company was $17,120.
Where the parties did not agree however was in respect of the approach that I was to take in relation to the treatment of that superannuation.
The wife’s position was that I should simply add the superannuation to the pool and treat it as if it were any other asset. The husband’s position however was that I should separate it out and deal with it as not only a separate item of property but rather just allow each party to retain what they have.
In Coghlan [3] the Full Court discussed the manner in which a court should formulate the asset pool particularly when dealing with superannuation. The concept of two pools was created however in respect of the difference approaches, the majority held:
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, or where the Court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the Court to conclude that this would be an appropriate approach.
62.The parties’ contributions to all items on that list (including the superannuation interest) would then be assessed on either a global or an asset by asset basis. It might then be necessary in the s 75(2) context to have regard to the parties’ future superannuation entitlements (having regard of course to any division proposed on the basis of their contributions), with consideration then being given to the overall justice and equity of any proposed award or order (including any proposed splitting order). Indeed, this is the approach which the Full court has used on its re-exercise of the trial Judge’s discretion in [I and I] (which will be delivered contemporaneously with the decision in this case).
63.However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise). This of course is the approach which the trial Judge adopted in this case.
64.Then for the reasons we earlier gave, whether or not a splitting order is sought on either party’s application, the parties’ contributions to both the property (as defined in s 4(1)) and also to the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. Specifically in the context of s 79(4)(e), that is the s 75(2) factors, any division of the property (as defined in s 4(1)) and any “division” of any superannuation interest (in the sense of an allocation of the base amount) based respectively on the assessments of the parties’ contributions to the property and to any superannuation interest, would then be considered. Similarly, the parties’ future superannuation prospects (be they in capital or income form) would also need to be considered. The overall justice and equity of the ultimate award (including any proposed splitting order or the need for such an order) would then be considered.
[3] (2005) FLC 93-220
It is therefore a matter of discretion as to how the superannuation interest should be treated in a particular case. In this case I have decided not to separate them into a separate pool but rather to add them to the other assets and divide that pool of assets globally. In my view this is the most prudent way of dealing with the superannuation issue having regard to the modest pool of assets and the modest amount of superannuation that each party has. In addition, for reasons which I shall turn to in a moment, the same contribution issues apply to both parties in relation to the superannuation assets as they do to the non-superannuation assets.
If I was to take the superannuation into account as a separate item of property in a different pool and follow the same path in respect of contribution and the matters required of me under s 75(2) of the Act, a loading in respect of superannuation in that case would in my view, make very little difference to the ultimate outcome whichever way I approached it. In the circumstances, it seems to me that the most sensible way to achieve a just and equitable outcome for both parties is to add the superannuation into the pool. Both of the superannuation entitlements are accumulation funds. I have taken into account that the real nature of the relevant superannuation interests remains to be seen as each party is a significant time away from final retirement. However, having regard to the disparity of earning capacity which strongly favours the husband, it seems more likely that he will benefit more than the wife in the longer term and as such, it is fairer to make the adjustments in a global sense knowing that the husband will build upon his superannuation in the future.
Other legal issues
In Mallett v Mallett[4] Gibbs CJ pointed out that Parliament did not require the power conferred by s 79 to be exercised in accordance with fixed rules. The Chief Justice said:
On the contrary it has conferred on the court a very wide discretion to make such order as it thinks fit when it is satisfied that it is just and equitable that an order should be made although there are some broad principles to which the Court is required to give effect, and some circumstances which it is required to take into account. A principle which the Court is expressly required to apply, so far as practicable, is that it will make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
[4] (1984) 156 CLR 605
This was a concept that I explained to the parties prior to the commencement of the case and I reinforced the width of the discretionary power. My task to which I shall now turn is the evaluation of the respective contributions of the parties.
The factual dispute
The first of the factual disputes related to the question of when the parties commenced cohabitation. That became important to some extent because there was a dispute as to what each party had at the time that that occurred. In her material, the wife referred to the fact that cohabitation commenced just after Valentines Day in 1994. She was remarkably clear about that. Conversely, the husband said that the parties commenced “a relationship” in 1994 whilst both were living in England and commenced living together in approximately 1996 when they came to Australia.
The husband was cross-examined about this issue. It was put to him that the cohabitation commenced in 1996 but he responded that it was 1995. He seemed immediately confused about the position and then added that he and the wife began living together “from the end of 1995”. When challenged about that, he said that he thought that that was right. He then changed the position to thinking that it was around September of 1995 and went from “thinking” about that to being sure. He then had to acknowledge that in the document first filed by his lawyers, he referred to the fact that it was April 1995.
In this case, I find that the wife’s version is correct. Her evidence being clear, concise and unchallenged.
Most importantly, at the time that cohabitation occurred, the parties had different assets. The husband said initially that the wife had “minimal assets, $3,000 at most in savings”[5]. In evidence in chief, the wife produced some statements from Lloyds Bank showing that in 1996, she had $12,000[6]. The importance of this is that not only was her evidence supported by corroborative material but it becomes clear that the disparity between the parties’ initial financial contributions was not as significant as the husband would have the Court accept.
[5] paragraph 47 affidavit filed 4 March 2005.
[6] See Exhibit W1.
In his affidavit filed 4 March 2005, the husband said that he had a property which he purchased in 1986 with his sister and as the evidence unfolded, it transpired that he purchased the interest of his sister in 1991.
Despite the length of time that this case had taken to get to trial, there was no evidence of any valuation in admissible form upon which I could rely as to the value of the husband’s interest at the time cohabitation commenced. Doing the best I can, I say that I am satisfied that the husband had the sole interest in the property at cohabitation but that that interest was encumbered by a mortgage which was in the vicinity of $44,000. The wife tendered a 1998/1999 rate and valuation notice of the local City Council showing a capital improved value of $110,000. That notice refers to the “level of value date” being 30 June 1994. The parties commenced cohabitation in early 1994. The council valuation is not an appropriate valuation to work on but it does give some indication that the equity that the husband had in the property at the time of cohabitation was not large.
In assessing the contributions of the parties, it is important to not only assess them but also give them weight. The evidence to which I shall turn in the moment relates to the question of renovations of the property owned by the husband. Subsequent to the renovations, the property was sold for $257,000 and at that point in time, there was virtually no debt encumbering it.
In terms of assessment, I am quite satisfied to say that at the commencement of cohabitation, the equity in assets of the husband exceeded those of the wife. The wife conceded right from the commencement of the proceedings that that was so. The precise disparity between the parties’ respective financial positions was difficult to assess. The weight I have given that disparity however still favours the husband although I am unable to be precise about exactly what the monetary value was.
Subsequent to cohabitation, according to the husband, the E property was renovated over a period of four years. The husband said in his affidavit filed 4 March 2005[7]:
I did most of these renovations, particularly when the applicant wife set up a workshop at my mother’s address and concentrated on her work.
[7] Paragraph 48.
The wife’s evidence however was that[8]:
That up until the birth of [the child] I worked full time, often with two jobs and my income was used to pay the household mortgage, to purchase materials for substantial renovations carried out to [the E property] and to [the G property].
…
After [the child’s] birth I renovated [the E property] on a full time basis for two years.
[8] Paragraph 98 of the affidavit filed 25 October 2006.
During cross-examination of the wife, the husband’s counsel handed to her a list of purported renovations. The wife did not agree with the apparent assessment by the husband. That document was never admitted into evidence. Counsel for the husband embarked upon some cross-examination of where the husband’s view was wrong and I was given a significant insight into the type of work that the wife was doing in respect of the renovations. She gave concise evidence about the types of work she had done and the time it had taken her to do things. For example, she went into the city to acquire material to make curtains, bought the material and then made the curtains. She talked of puttying windows, levelling ground, laying bricks and building and painting a picket fence. She told me that her neighbour had taught her how to cut bricks but much of the exercise for her was “trial and error”. She was able to tell me about replacement of guttering on the house and the fact that she had gone with the husband to a store to purchase the pieces of guttering and that they had walked two blocks with it to get it home.
By the end of the wife’s evidence, I was left with the impression that she had played a significant role in the renovations but more importantly that the renovations themselves had been quite significant. That was not the picture painted by the husband. When cross-examined, the husband said that rather than the renovations being significant, they were “cosmetic”. He maintained that they were not substantial notwithstanding the various photographs that he was shown and which were ultimately not presented in evidence. When asked whether the wife did a significant amount of the renovations, the husband replied that she did. He was shown a photograph of the inside of the house and counsel for the wife referred to it as showing the house to be “gutted” and the husband agreed that that was what it was. He then conceded that floors were replaced and that the back yard was “levelled”. He then conceded that it was in fact he who had taken the photographs.
Counsel for the wife asked the husband whether he would concede that the wife “worked hard”. There was a very long pause. Before answering the question, counsel asked the husband whether he had had to think about it and he replied that he did. He said that he had never said she had not contributed and the respective contributions were “close to equal”. He embarked upon a rather futile exercise of trying to distinguish the respective contributions claiming that his was greater than that of the wife. This was a pointless exercise because in final submissions, counsel for the husband conceded that leaving aside the initial contribution of the parties, they had otherwise contributed equally.
In respect of financial matters, I am satisfied on the evidence that the wife worked in various positions of employment outside of the home during the marriage. The wife also followed her passion of jewellery making in the form of a business but that in reality, there was little remunerative reward for it. There was significant cross-examination by counsel for the husband about that issue and he put to the wife that in 12 years, she had never made a profit. That was a matter about which there was little argument and it certainly appears clear on the evidence that there is little prospect that the wife will make any income sufficient to support herself in the future. That is not a criticism of the wife because throughout the relationship and certainly subsequent to separation, she has been working in paid employment to support herself and the child.
There was also some dispute between the parties about the nature of the non-financial contribution relating to the child during the relationship. The husband was constantly at pains in cross-examination to say that he had shared in that role and I am satisfied that to some extent he did. However, he worked full time for most of the period of the relationship and was very supportive in a financial sense. Certainly for the first year of the child’s life, the wife was the full time carer of her. Subsequent to that year, the wife has worked part time in various jobs and I am satisfied that she otherwise took on the greater role within the house.
The husband was also at pains to say that he did the shopping for the “meat and veg” however he conceded that the wife had a credit card with a limit of $750 for the purposes of buying household requisites. In her material, the wife complained about the fact that this was the method that she had to employ and that on at least one occasion, she was embarrassed at the supermarket when there was no credit on the card. The husband however saw this as a necessary means of budgeting and said that it was the idea of the wife to undertake this methodology. I am not in a position to criticise either party on this issue on the evidence before me. Having regard to the fact that the parties were not only paying a mortgage and undertaking renovations as well as providing for themselves and the child, I am conscious of the fact that they were not earning significant sums of money.
The assessment of contributions
The only contribution issue up until separation about which I need to make any assessment relates to the initial contributions of the parties.
In Way and Way[9] the Court said:
…we regard the law in this area as now settled by the statement by Fogarty J. in Money (and subsequently accepted by all members of the Full Court in Bremner) that "... 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
[9] (1996) FLC 92-702 at 83,404
In Pierce v Pierce[10], the Full Court considered the weight to be given to initial financial contributions and 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. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
[10] (1999) FLC 92-844
In this case, as I have pointed out, there was already a concession that the husband’s initial contribution was greater than that of the wife. However, on the evidence, I find that the renovations undertaken by both parties were significant in relation to that property owned by the husband. Doing the best I can with the absence of specific valuation evidence, I find that at the time of separation, there was a marginal difference between that of the husband and the wife and I fix that at 55 per cent to the husband and 45 per cent to the wife.
It is important to also take into account contributions subsequent to separation. Normally, one would give little weight to the fact that subsequent to separation one party retained the matrimonial home and the other party paid private rental. In this case however I have the unusual situation, and I accept as a fact, that the husband insisted that the wife leave with the child because it was “his” home.
Up until the time that the parties first came to court in 2004, it appears that the husband was paying the mortgage but complaining that he did not have the capacity to keep paying at the rate of something in the vicinity of $519 per fortnight. In the Federal Magistrates Court at Melbourne on 12 July 2004, when both parties were represented, the husband consented to orders in the following terms:
That the husband and wife forthwith do all things and sign all documents necessary to reduce the mortgage repayments in relation to the matrimonial home to the minimum possible under the mortgage loan.
…
The husband shall make all payments in regard to the mortgage over the matrimonial home as they became due and payable.
On the evidence, it seems that the husband then reduced the mortgage payment to $227 per fortnight. He was clearly entitled to do that under the order. However, at that time, it transpires that he took in a boarder from whom, according to the statement of financial circumstances, he was collecting $340 per fortnight. The wife at that time was paying private rental. In addition, the husband was also in dispute with the Child Support Agency over the correct level of child support.
In relation to child support, the husband conceded that arrears accrued and that he made an arrangement with the Agency to pay them off. When challenged as to why, if he was receiving a “profit” from the home, he did not pay the arrears, he said that he had to pay legal fees, buy new curtains, buy a dishwasher and maintain the home.
It took some time for the husband to concede that he in fact prioritised his payments in relation to those issues to which I have just referred ahead of his support for his daughter. I was mindful of the fact that in evidence, the wife said that she had taken the child to various ballet rehearsals but not the concert because the tickets were $40 each.
In circumstances where the husband had possession of the home and was making more from the boarder than it was costing him in mortgage repayments and falling behind in child support, I am quite satisfied to say that the contribution made by the wife as the major carer of the child subsequent to separation was not only greater than that of the husband but warrants an adjustment. In my view this is a significant issue having regard to the very modest pool of assets that the parties have in this case.
In summary therefore in respect of contribution, I find that the contributions of the parties were equal overall.
Section 75(2) factors
In final address, I asked counsel for the husband what position the husband adopted in relation to any adjustments for the matters set out in s 75(2) of the Act. He said that there should be no such adjustment.
Section 75(2) of the Act requires that I take into account each of the matters that are relevant in so far as they affect each of the parties. The provisions of s 75(2) read as follows:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e)the responsibilities of either party to support any other person;
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party's role as a parent;
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party;
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties.
In this case the income of each of the parties is modest although it is clear that the husband earns significantly more than does the wife. The husband refers to the fact that he earns $50,000 or thereabouts per annum but $8800 of that comes from a boarder. The wife earns about $30,000 per annum of which $13,500 comes from Centrelink. I am not at all clear on what the current child support position is. The wife refers to the fact that she receives about $2000 per annum and the husband says that it is $9000. There was no evidence produced by either party as to the correct figure. I shall turn to that below.
In respect of earning capacity however, it is quite clear that although the wife has formal qualifications in respect of her trade as a jeweller, as it was put to her by counsel for the husband, over a long period of time, no serious income had been earned by her from it and it was unlikely in the future that that situation would change. No other evidence was led nor was the wife cross-examined about what other opportunities she has. Counsel for the husband cross-examined the wife about the fact that she could be employed rather than running her own business but she said that there were no jobs available in the trade in which she is qualified. I am satisfied that the statement of financial circumstances accurately portrays her current financial position and accordingly find that there is a disparity between the husband and the wife which favours the husband.
I am obliged to take into account the responsibilities for the care of a child. In this case, the orders that I will make in respect of the child will mean that the wife has a greater time responsibility for the care of the child than does the husband and as has been the historical past, I am led to believe that the wife will continue to fulfil that role in the future. In the past the wife has had to work her hours around the parenting role and I see no reason why that is likely to change in the future.
Neither party has the responsibility to support any other party. It was not suggested by either party that either is cohabiting with any other person nor has the responsibility to provide for any other person.
I have already made mention of the fact that the wife is dependent upon an income tested pension and on the evidence I am satisfied that that situation is unlikely to change in the future.
I have taken into account the standard of living that each party had prior to the separation but having regard to the fact that neither party can afford to keep the matrimonial home, each will have the problem of having to change their lifestyle in the foreseeable future. I do not intend to make any adjustment in respect of that factor.
I have also taken into account the stated wish of each party to fulfil a caring role for the child but as a result of the orders I make, the wife will have the greater burden and that will affect her economic circumstances.
It is very important in this case to acknowledge however that the pool of assets is modest. Any adjustment between the parties in this case must be reflected in the reality that is, in dollar terms rather than in the notional percentages as the latter significantly distorts the picture. I am taking into account that any disparity in percentage terms will still be modest in dollar terms.
I am obliged to take into account any child support under the Child Support (Assessment) Act1989 (Cth) that a party has provided or is to provide in the future. The evidence in relation to the husband’s past contributions was unsatisfactory. The husband said that his dispute with the Agency arose out of his loss of employment. The wife’s assertion was that he manipulated the income figures. I am unable to make any finding of fact in respect of this issue. However, the husband’s stated position in relation to child support as I have earlier described it left me wondering about his true position relating to his obligations for the support of the child. I have decided to give him the benefit of the doubt now that these proceedings will clear up the question of what time each party spends with the child added to which is the fact that the financial position will be hopefully clearer as a result of the sale of the home and these orders.
I am also obliged to take into account any other fact or circumstance which the justice of the case requires. During the relationship, the wife was named as the recipient of a family allowance which was apparently determined based upon the husband’s income. It transpires that the husband’s income was incorrect and as a result, the wife was required to repay a significant sum of money. On the evidence, I find that she did make that payment. Much of the payment seems to have been completed at the time of separation. However there was still an outstanding balance at that time and I accept that she has made that payment out of either her pension entitlement or her income subsequent to separation. It is hard to factor that in directly as a contribution although I could have done so but having regard to the fact that it has been now repaid in full, I have taken that into account in the loading that I propose to now address.
Factoring in all of the matters above in an economic sense and trying to make some adjustment as between the parties to reflect those individual differences, I find that it is appropriate to make an adjustment in favour of the wife. As I have pointed out, any adjustment in a small pool like this must really be examined in dollar terms rather than in percentage terms. In my view, a 10 per cent loading is justified in favour of the wife. With a disparity of income, the obligations of the husband for child support and the need of the parties to rehouse, I find that a 10 per cent adjustment making an overall settlement of 60 per cent to the wife and 40 per cent to the husband is just and equitable in all of the circumstances.
I certify that the preceding One Hundred and Ninety Five (195) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 3 May 2007
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