Drysdale and Drysdale
[2012] FMCAfam 1035
•21 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DRYSDALE & DRYSDALE | [2012] FMCAfam 1035 |
| FAMILY LAW – Children – parental conflict – young children – equal shared parental responsibility – substantial and significant time. FAMILY LAW – Property – equal contributions – future needs – s.75(2) adjustment in wife’s favour. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA, 75(2), 79 Child Support (Assessment) Act 1989, s.117 |
| Applicant: | MS DRYSDALE |
| Respondent: | MR DRYSDALE |
| File Number: | ADC 3518 of 2011 |
| Judgment of: | Kelly FM |
| Hearing dates: | 16 & 17 August 2012 |
| Date of Last Submission: | 17 August 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 21 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Boehm |
| Solicitors for the Applicant: | S J McKinnon & Associates |
| The Respondent | In Person |
ORDERS
BY CONSENT THE COURT ORDERS THAT:
Children’s issues
The parents share equally in parental responsibility for their children [X] born [in] 2002 and [Y] born [in] 2006.
The children live with the mother.
The children spend time with the father as follows:
(a)each alternate weekend from the conclusion of school Friday until the commencement of school Monday (or the commencement of school Tuesday, if Monday is a public holiday) commencing 24 August 2012;
(b)from the conclusion of school on Thursday following, until the commencement of school Friday commencing 30 August 2012;
(c)for one week of each of the short term school holidays as agreed between the parties;
(d)paragraphs (a) and (b) will continue during the Christmas school holidays SAVE and except:
(i)in alternate years commencing 2012, the children spend further time with the father from 7.00pm on 24 December until 3.00pm on 25 December;
(ii)in intervening years commencing 2013, for a period of one week from 3.00pm on 25 December until 7.00pm on the last day;
(iii)in the event the father’s regular weekend falls immediately prior to Christmas Day then the children may remain in the father’s care for the extra night (as will occur in 2012).
The children shall spend time with each parent on special occasions as follows:
(a)with the father:
(i)on the children’s birthdays from 3.00pm (or the conclusion of school) until 8.00pm if the boys are not otherwise in the father’s care;
(ii)on the father’s birthday from 3.00pm (or the conclusion of school) until 8.00pm if the boys are not already in the father’s care;
(iii)from 6.00pm on the Saturday prior to Father’s Day up to and including the commencement of school on the Monday following, if the boys are not already in the father’s care;
(iv)on alternate Easter weekends from 3.00pm on Good Friday until 7.00pm Easter Monday commencing Easter 2013 to coincide with the father’s one week of the April school holidays, where appropriate;
(b)with the mother:
(i)on the children’s birthdays from 3.00pm (or the conclusion of school) until 8.00pm if the boys are not otherwise in the mother’s care;
(ii)on the mother’s birthday from 3.00pm (or the conclusion of school) until 8.00pm if the boys are not already in the mother’s care;
(iii)from 6.00pm on the Saturday prior to Mother’s Day up to and including the commencement of school on the Monday following, if the boys are not already in the mother’s care;
(iv)on alternate Easter weekends from 3.00pm on Good Friday until 7.00pm Easter Monday commencing Easter 2014 to coincide with the mother’s one week of the April school holidays, where appropriate.
The children will continue their primary schooling at [L] School with the parents to share equally in all school fees.
Both parents are at liberty to attend at the school, to participate in all school activities and events to which parents are usually invited and to receive copies of the children’s school reports.
In the event either parent is away for work, the other parent will have first option to care for the children in their absence.
In the event either child requires medical treatment or hospitalisation whilst in one parent’s care, that parent will immediately notify the other parent and both parents are at liberty to contact the treating doctor and visit the children in hospital in the event either child is hospitalised.
Both parties agree to keep the other informed of their current residential address and current contact telephone number.
Handover will take place by the relevant parent collecting the children from or delivering the children to school.
Where handovers do not take place to or from school, the father shall collect the children from and return them to the mother’s home, unless otherwise agreed between the parties NOTING the mother intends to continue living within a 10km radius of the children’s school.
The parents shall negotiate regarding the children’s future sporting and extracurricular activities NOTING that the children shall not be enrolled into any additional sporting or extracurricular activities that impact upon their time in the other parent’s care without the consent of both parents.
The father shall maintain the children’s participation in all agreed sporting and extra curricular activities, including their present activities with the parties to share equally in any costs associated with the sporting activities but not [X]’s guitar lessons.
NOT BY CONSENT
The parents shall negotiate and if need be attend for family dispute resolution in relation to the children’s high school enrolment.
In the event family dispute resolution is required, the parents shall enrol through a Family Relationship Centre or other community based organization at the commencement of [X]’s grade 7 year in 2014.
Both parents shall make a genuine effort to resolve the issue but if no agreement is reached, the children shall continue to attend at [L] Secondary School with the parents sharing equally in all school fees, unless otherwise determined by the Court.
AND THE COURT ORDERS THAT:
Property issues
In full and final settlement of any claim that either party may have against the other now or at any time in the future for settlement of property pursuant to the Family Law Act 1975.
Upon sale of the former matrimonial home at Property R in the State of South Australia the proceeds of sale shall be paid in the following manner:
(a)in payment of any agent’s commissions, legal expenses and auction expenses (if any);
(b)in discharge of the outstanding mortgage;
(c)in payment of any outstanding liability for water rates and Council rates;
(d)as to 64% of the balance then remaining to the wife care of her solicitors S J McKinnon & Associates;
(e)the balance then remaining, being 36%, to the husband.
Immediately upon receipt of settlement funds, the wife shall discharge the balance outstanding on the parties’ joint People’s Choice Visa Card and take all steps necessary to remove the husband’s name from the Visa Card account.
The wife deliver up to the husband the items listed in Annexure A to this order on the basis that the husband provide the wife with seven (7) days notice regarding his intention to attend and collect the said items NOTING he nominate a date within 21 days.
The husband endeavour to locate and deliver up to the wife within 21 days an electronic version of her CV together with any pregnancy or birth photographs and a copy of all other family photographs in his possession.
Thereafter the wife retain all other property in her possession, free from any further claim by the husband.
Thereafter the husband retain all other property in his possession, free from any further claim by the wife.
The wife indemnify the husband with respect to all liabilities which may be outstanding in her sole name, including her HECS debt.
The husband indemnify the wife with respect to all liabilities which may be outstanding in his sole name, including any alleged liability to his mother.
With respect to the husband’s entitlement with Super [S]:
(a)the Court allocate as required by s.90MT(4) of the Family Law Act 1975 a base amount of $39,207 to the wife out of the husband’s interest in Super [S];
(b)pursuant to s.90MT(1)(a) of the Family Law Act 1975 whenever the Trustee of the Superannuation Fund makes a splittable payment out of the husband’s interest in the said Fund the Trustee shall pay to the wife, or her administrators, executors, beneficiaries, heirs or assigns the entitlement calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 and that there be a corresponding reduction in the entitlement the husband would have had in Super [S] but for this order;
(c)this order hereof has effect from the operative time;
(d)the solicitor for the wife serve a copy of these orders upon the Trustee of Super [S] by 31 August 2012 and thereafter the aforesaid Trustee has liberty to relist the matter in the event the Trustee is unable to comply with paragraph 25 (a) and (b) herein, but otherwise the operative time for this order shall be 14 September 2012;
(e)these orders bind the Trustee of the said Superannuation Fund to observe the Trustee’s obligations as set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
In the event either party fails to take a necessary step in accordance with these orders then a Registrar of this Court may sign any documents necessary to give effect to this order, upon filing of an Affidavit establishing a party’s failure to comply with same.
The interim spousal maintenance order of 14 October 2011 shall continue until settlement upon the sale of the former matrimonial home and thereafter the order is discharged and the wife’s application for spousal maintenance is otherwise dismissed.
Liberty to apply.
Any Application for costs is to be filed within 28 days.
IT IS NOTED that publication of this judgment under the pseudonym Drysdale & Drysdale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
ADC 3518 of 2011
| MS DRYSDALE |
Applicant
And
| MR DRYSDALE |
Respondent
REASONS FOR JUDGMENT
Children’s Issues
The parties have been unable to resolve issues relating to the care of their two children, [X] and [Y]. Financial issues also remain unresolved.
In determining these matters I have, of course, considered all of the evidence presented to me. I remind the parties that the Court is not obliged to rule on each and every issue in dispute, or to comment on each and every factual issue that may be in dispute. Rather, my role is to make findings of fact about those matters that are actually relevant to the decisions I have to make. Accordingly there may be some issues that came up in evidence that I do not comment upon in this judgment, but that does not mean I have not considered all of the evidence presented in this hearing.
It is appropriate that I consider parenting issues first of all because the parenting arrangements for [X] and [Y] are the most significant issues in dispute and further my decisions may impact upon determinations in relation to property settlement.
The parties lived together for three years before marrying in 1996. They separated in 2011. Their older son [X], was born in 2002 and their second child [Y] was born in 2006 and has just turned six years of age. Since the separation in February 2011, the children have effectively lived in the primary care of the mother, but have spent regular time on alternate weekends with their father, in addition to special occasions and school holiday times.
Having considered the file and the actual issues that remain in dispute in relation to the parenting applications, I concluded it was appropriate for me to rule on those issues on the papers and submissions, rather than hear oral evidence from the parties. That option is available to me through the Division 12A of Part VII of the Family Law Act 1975. Section 69ZN directs the Court to consider the impact of litigation upon children, to directly manage the proceedings, and to conduct proceedings without undue delay and with as little formality as possible. Section 69ZQ, amongst other things, certainly gives the Court the capacity to decide which issues can be disposed of summarily.
I am satisfied that detailed cross-examination about the parties' past behaviour would do little to assist the Court in determining the parenting issues in dispute. On the contrary, I was concerned that a fully adversarial trial process may serve to simply further entrench hostility or, indeed, provide new avenues for each party to feel ill used and hard done by the other parent. At the end of the day, the factual issues in dispute are limited. The real focus of the parenting dispute relates to the adult relationship, and the capacity of the two of you to co-operate and co-parent [X] and [Y] effectively.
Both parties consent to an order for equal shared parental responsibility and that is a significant acknowledgement, particularly by the wife. Despite the difficulties she feels that she experiences in communicating with the father, she nonetheless acknowledges that he has an important and significant role to play in the children's lives.
The Court must always consider the relevant factors pursuant to section 60CC when considering the best interests of the children. In any situation where an order for equal shared parental responsibility is made, the Court is required, in accordance with section 65DAA, to consider whether an order for the children to spend equal time, or substantial and significant time is appropriate, provided such an order is in the children's best interests and reasonably practicable.
For the reasons which I will shortly detail, I do not consider equal time would be in the children's best interests. I also note that neither parent was pursuing that option, at the end of the day.
The parties agreed that the children should continue to spend time with each parent during school holidays and on special occasions. They agreed that during school terms the children’s current alternate weekend time with their father should extend to Monday mornings or Tuesday, if a public holiday.
They agreed that the children should also spend overnight time with their father on the intervening week, but could not agree whether this would be one night or two nights. Clearly, either parent’s proposal falls well within the definition of "substantial and significant time" contained in section 65DAA, in that the children will be spending time in each parent's care on school nights, weekend nights, special occasions, and holidays and so on.
The dispute between you does not turn upon the quality of the children's relationship with each parent, but how these relationships should be supported in terms of the number of nights in each parent's care. It is to the credit of both of you that most of the other issues in relation to parenting matters have been agreed, and that provides some hope, I think, for a better co-parenting dynamic into the future.
Many of the s60CC factors are not particularly in dispute and I will discuss them briefly. In terms of the primary considerations, I am satisfied that there is a clear benefit for the children in having a meaningful relationship with both of their parents, as you each acknowledge. I am satisfied there is no real issue in relation to the children being at risk in either parent's care.
Turning to the additional considerations in s.60CC(3), we have some insight into the children's views from their brief interview with the family consultant. There is no dispute that the children enjoy spending time with each of you, and enjoy their time living in each household. Obviously, [Y] is too young to express any strong view. [X] said, as many children do, that he would like his parents to get back together, but he knows that is unlikely. He was also conscious of the mother's distress around the co-parenting conflict. That is a matter for the mother to reflect on and I will return to this briefly a little further on in these reasons.
Clearly both children enjoy a happy and loving relationship with each of their parents, and that is to the credit of each of you. I am also satisfied that you will each promote the children's ongoing relationship with extended family members.
I am satisfied that both parents have demonstrated a commitment to their involvement in the children's care and to decision-making responsibilities. It may be that the mother has generally taken on more of that direct responsibility than the father. For example, in the course of the hearing the mother was immediately able to tell me [X]’s grade level, while the father was a little less certain. That is not a particular criticism of the father, it is simply something I noted in passing. The only real criticism of the parties at the present time relates to the lack of communication between them.
Both parties are properly contributing to the maintenance of the children to the extent of their financial capacity, and there is no dispute that child support is being paid appropriately.
Regarding the impact of any changes upon the children, both parents are proposing some change to the existing care arrangements and the children will need to negotiate and adjust to the new care regime. Clearly everyone hopes an increase in the children’s time with their father will be a positive development, but even positive changes bring with them some adjustment for the children.
There are other changes occurring for the children as well. The family home is about to be sold, for example. The mother hopes to remain in the same area and both parents agree the children should continue their primary schooling at [L], which will minimise any disruption for [Y] and [X].
The parties have agreed to remain living in relatively close proximity to each other and there are no practical difficulties that will arise regarding any of the potential parenting outcomes.
In terms of the parties' parenting capacity, it is clear that both parents have a great deal to offer to your two sons, both in terms of educational support and in terms of the children's emotional development.
Regarding the children's gender, maturity, lifestyle and cultural heritage, the children enjoy a European heritage through the father and paternal grandmother. This heritage is clearly important to him and I am confident that he will take every opportunity to support the children's knowledge and access to their heritage.
In the course of addressing the children’s future high school enrolment, the father noted that [A] High School offers Spanish language on the curriculum, which he felt would provide an excellent opportunity for the boys to develop their cultural connections. That may be true, but in my view the availability of Spanish is not the decisive factor in terms of the children's future schooling arrangements.
Mr Drysdale will have ample opportunity to support the children’s cultural heritage when the boys are in his care. I note that he has not arranged extracurricular language classes for the children to date, as far as I can recall. Again, that is not a criticism, simply a comment about the importance that the father now brings to this issue.
[Y] has only just turned 6 years old and is still a young child. Even a change from a regular regime of two nights to three consecutive nights is significant for a child of [Y]’s age. He may need time to settle in to the new care arrangements. It is important that parenting arrangements are structured to suit the children's stage of emotional development, not just the parents' needs. It is also important that both parents recognise this and acknowledge that this is not a reflection on their parenting capacity, it is simply an acknowledgement of the children's developmental needs.
I am satisfied that both parents generally demonstrate an appropriate attitude to their responsibilities as a parent. The only area in which they are failing at the moment relates to the poor level of effective communication and co-operation between them. Both parents blame the other for these difficulties. The father says that the mother is unreasonable and will not communicate properly with him. He considers that she tries to control his activities and limit his parenting role in the children's lives. Despite these difficulties, he argues that the parties can communicate reasonably well about practical issues such as the children's activities, health issues and so on.
The mother, in turn, says that the father is domineering and aggressive in his demeanour towards her. She feels the father does not demonstrate any trust towards her, which makes it impossible to have any meaningful or effective communication about parenting issues, particularly where the parents might start from a slightly different perspective.
Notwithstanding the father’s more positive comments, I note that the communication book was unsuccessful and is no longer in use. I conclude that communication is still a significant problem between the parties. It is clear that there is little mutual trust between them.
The mother was still easily distressed when interacting with the father, even in the strict confines of the courtroom process. Clearly [X] is tuned into his mother’s emotional reactivity at times. In making these comments I do suggest that the mother’s behaviour places the children at risk of emotional abuse or anything of that nature. However
Ms Drysdale may benefit from some counselling to deal with her own response to the separation, to ensure that the children are not negatively affected by her emotional issues.
Notwithstanding these comments I am confident that neither party actively criticises or undermines the other parent in the presence of [X] and [Y].
Having observed both parties during the hearing, it is clear that you have quite different personality styles and communication styles. It may be that the father is a little more precise and controlled in how he wants to communicate and engage about issues, whereas the mother may be more attuned to emotional nuances and prefer a little more flexibility in her communication.
These differences were clear in the material as it was presented before me, in terms of the parties' affidavits but also in terms of their presentation in the hearing regarding financial issues. Given these differences, it is not surprising that the two of you are still struggling to settle into a co-operative parenting relationship. This is a significant factor which weighs heavily in my considerations about the children's future care arrangements.
It is well understood, and numerous Full Court decisions have confirmed that, from the children's perspective, a successful co-parenting experience is dependent upon a level of co-operation and mutual respect between the parents. Unfortunately that does not yet exist between the two of you. It may come in time, and one hopes it does for the sake of each of you, as well as for the sake of the children.
In considering whether an equal time care arrangement will be in the children’s best interests, the two of you will have struggle enough to communicate effectively about major long term issues that you would need to resolve from time to time, without adding on the still greater expectations of effective parenting communication and co-operation that an equal time care arrangement requires.
For that reason, I conclude that an equal time care arrangement would not be in the best interests of [X] and [Y], not because either of you are unable to care for the children properly for that length of time, but because you are unable to manage the level of co-operation that is required.
It may be that communication between you will improve with time, but it is not there yet. While I have made a comment about the mother possibly benefiting from some counselling at some stage, I consider the father should also reflect about what changes he could make regarding his interactions with the mother, to enable the communication to flow more easily for the sake of the two children.
While equal time is not in the children’s best interests, I am satisfied that an order for the children to be spending substantial and significant time in your respective care is appropriate and is in the children's best interests.
I refer again to my concerns about the co-parenting dynamic at present, and to the fact that [Y] is still a young child. On balance, I conclude that the mother's proposal of four nights per fortnight is the most appropriate parenting outcome at this point in time.
This parenting regime still falls well within the definition of the children spending substantial and significant time with each parent. It still allows both parents to play an active role in all aspects of the children's care and in their school week routine.
The father considers that a two-night regime in alternate school weeks would further facilitate his involvement in that regard, which is undoubtedly correct, strictly speaking. But I take into account that even these changes will take some adjusting to for the children and for that reason, I consider that interrupting the school week by a two-night regime in alternate weeks may, in fact, be more disruptive than beneficial for the children.
Accordingly, I will order that the children spend overnight on intervening Thursdays in the father's care during school terms. The parties have agreed virtually all other parenting issues and I base those orders on the draft Minute prepared by the father (which was in turn drawn from the open offer prepared by Counsel for the mother). I will pronounce orders by consent based on that draft, regarding alternate weekend arrangements, school holidays, special occasions, participation in extra‑curricular activities, and exchange of information and so on.
A number of other matters remain unresolved. Regarding the handover arrangements, there is no magic legal principle to bring to bear. The father seemed to concede that he would continue to collect the children from or return them to the mother’s home for non school day handovers, provided neither party is living too far away from each other. This is appropriate and I will make an order in that regard.
The issue of the schooling was a significant issue and took some time for the parties to consider and discuss. At the end of the day, they were able to agree that the children would continue their primary schooling at [L] and that they would continue to contribute equally to their school fees. The parties also agreed to share in and support the children’s current extra-curricular activities, although after hearing further brief submissions, the father will not be contributing to the cost of [X]’s [omitted] lessons. Any future extracurricular activities will need to be negotiated and agreed between them.
In terms of the children’s high school enrolment, that is obviously a matter that the parties need to consider and negotiate. It may be that they both decide that [L] School is not the right secondary school for the boys, in the fullness of time. This issue is linked to the cost of school fees and is obviously a Child Support issue, at one level. The father feels that his current child support payments should include his responsibility for school fees and extra‑curricular activities.
Section 117 of the Child Support (Assessment) Act 1989 enables the Court to vary an existing Child Support assessment if there are grounds to do so. One of the possible grounds to depart from a Child Support assessment relates to the cost of school fees and expenses, particularly when children are being educated in the manner expected by their parents, prior to separation.
There is no doubt that prior to their separation, both parents agreed to enrol [X] at [L]. It was their intention to enrol him at a private school at that time. It was obviously appropriate that [Y] follow his older brother, even though he commenced school after separation.
Clearly decisions about future schooling are matters that the parents should consider and negotiate. Continuity of schooling is an important factor, but not the only factor that the parents will need to consider in the coming years.
In the event they are unable to reach agreement, then the order of the Court will be that the children continue at [L] School, and continue to share the fees, unless otherwise ordered by the Court. This outcome has the advantage of maintaining some stability in the children’s schooling.
The reality is that if the parties disagree, it needs to be a disagreement that one parent or the other feels so strongly about, that they are prepared to come back to Court about it. One hopes that this is not the case and that these issues, in fact, are able to be resolved more easily in time.
The mother sought an order in relation to the step-paternal grandfather, and the father’s stepbrothers. Having heard submissions on that matter, rather than any formal evidence, I accept that the father understands and agrees with many of the mother's concerns regarding his step-grandfather's capacity to care for the children, given his age and hearing loss. He also agrees with the mother's concerns about his stepbrothers’ lifestyle.
I am satisfied that neither parent would place their children at risk, and would not put in place inappropriate care arrangements for the children. I do not consider that an injunctive order is necessary. Rather, it is one of those areas of parental responsibility where the mother needs to develop a little more trust in the father. She needs to accept that he is as concerned and attentive to the children's welfare as she herself is.
These are my reasons for the parenting orders I now make. Many of the orders now pronounced are made by consent, as mentioned previously.
Property Issues
I now turn to the financial issues. I heard brief evidence from the parties and from the husband’s mother. I am satisfied that the parties gave their evidence honestly and to the best of their recollection, as did Ms S.
The Court follows a four-step process when dealing with property disputes. The Court must determine the matrimonial asset pool, then assess each party's contributions, both financial and non financial. The next step is to assess each party's future needs by considering the factors set out in s.75(2). Finally the Court must be satisfied that the proposed orders reflect an outcome that is just and equitable between the parties, in accordance with s.79(2).
The parties were living together for 17 years. While each party owned some assets at the time of their cohabitation, neither party held assets of any significant value at that time.
The husband is now 46 years old. The wife is also in her mid 40’s. The husband is working full time, and earns approximately $90,000 per year. The wife is not currently in the paid workforce. She is looking to re-enter the workforce, and hopes to be able to combine part time employment with her parenting responsibilities.
The wife is proposing that the net non-super assets be divided 70/30 in her favour, with an equal adjustment in relation to the parties’ superannuation. The husband agrees that the superannuation should be divided on an equal basis.
The husband initially proposed that the overall asset pool be divided equally, but was prepared to concede some adjustment in the wife's favour with respect to the relevant s.75(2) factors, in terms of the parties' future needs and their vary different outlooks in that regard.
The husband also sought the return of various household effects. The wife has agreed to return some of the items, but not the full list sought by the husband. In turn, the wife also sought delivery up of some photographs and, if possible, an electronic copy of her curriculum vitae.
The matrimonial asset pool
Turning first to the matrimonial asset pool, various matters need to be determined, but it is clearly a modest asset pool. A significant issue in dispute relates to a debt of $20,000 the husband claims is owed to his mother, Ms S. The wife concedes that the sum of $20,000 was provided by Ms S in 2004, but disputes that it was a loan.
The former matrimonial home is presently on the market and the market will determine the actual value of the property in due course. For today’s purposes its value is somewhere in the range of $380,000 to $395,000. There is a mortgage outstanding on that property, currently at the sum of $185,535 which leaves a net equity of approximately $195,000 to $210,000, depending upon the sale price.
The wife has retained two motor vehicles, a 1966 Holden HR valued at $3,500 and a Holden VX wagon. There is a slight dispute about the value of the wagon. The wife initially presented an appraisal valuing the vehicle at $3,000. Subsequently [K] Valuers provided a valuation of $2,500.
The husband argues that various necessary repairs have been completed since the [K] valuation and, therefore the wife's earlier appraisal would be the more appropriate figure. The wife gave evidence that [K] Valuers took these anticipated repairs into account at the time. In any event, I have a valuation from a licensed valuer, versus an appraisal from a car yard. In that regard, it seems to me that the opinion of the licensed valuer should take priority, notwithstanding any subsequent repair work. I value the Holden VX wagon at the sum of $2,500.
In terms of the furnishings and household effects in and about the former matrimonial home, the wife concedes that certain items will be returned to the husband's mother, including the piano, piano stool, music, two Aboriginal spears, and two prints of Paris with a value of approximately $422, and she is agreeable for those items to be returned to the husband and delivered up to the paternal grandmother.
The wife also has provided a list of those items that she is prepared to return to the husband (or have the husband collect), which she says have an estimated value of approximately $1,190, based on the values listed in the [K] valuation. When those two sums are deducted from the [K] valuation of household effects, the wife is retaining furnishings valued at approximately $8,880.
The wife acknowledged in the witness box that there are a couple of reasonably significant items that were overlooked during the valuation, such as a laptop and camera. They were items that had been replaced following an insurance claim. I accept that those items were not valued and need to be taken into account.
The husband argues that the total value of the insurance claim should be added into the asset pool, but I am not satisfied that is a proper approach. The reality is that the re-sale value of goods, even recently purchased electronic goods, will be significantly lower than the purchase price reflected in an insurance payout.
I prefer to rely upon the [K] valuation and to make a further modest adjustment to the total value, on account of the laptop and camera. Accordingly, having excluded the items to be returned to the husband and his mother, I rely upon the [K] valuation to allocate a value of $8,880 to the wife’s household goods, which I will round up to $10,000, taking into account the lap top and camera.
The husband's furnishings were valued by [K] at $2,885. Together with the items that he is to receive back from the wife, valued at approximately $1,190, he is retaining furnishings and household effects valued at approximately $4,075. I have excluded the firearms, as they have been delivered up to the police. The husband is also retaining a Vespa with a valuation of about $1,500. Accordingly the wife is retaining cars and furnishings valued at approximately $16,000. The husband is retaining the Vespa and furnishings valued at approximately $5,500.
Is the sum of $20,000 a matrimonial debt to be repaid to Ms S?
The parties agree that Ms S provided the sum of $20,000 in 2004, to help them buy a decent car. I have heard evidence from the paternal grandmother and considered her affidavit, along with the evidence presented by both parties. I accept that Ms S is not a wealthy woman. She had to withdraw these funds from her superannuation to help her son out. She gave evidence that she has not provided similar assistance to her other children as she considered they were more financially secure.
Ms S says that a conversation occurred between her and the wife at around the time the funds were provided. She said that the wife offered to start repayments at the time, and that the wife was very grateful. The wife agrees she was very grateful for the help provided by Ms S at the time, but denies ever offering to start making repayments.
I am satisfied both the wife and Ms S were giving their evidence honestly and to the best of their recollection. I note that Ms S indicated the wife's offer of repayments was “a spur of the moment thing”, to use Ms S’s words. I conclude that if the wife did make such a comment, it was likely something she said as a throwaway line at the time, in gratitude, rather than a real or meaningful offer to commence repayments at the time.
Ultimately the Court must determine whether these funds were a loan and whether they should be included as a formal liability of the parties to be deducted from the asset pool. Having heard all of the evidence on this topic, I conclude that the funds should be treated as a gift, rather that as a loan, requiring repayment.
There is no doubt that the husband has a close and strong relationship with his mother. As Ms S said, "As migrants, we look after each other. We look after our family." That was the evidence she gave, or words to that effect. I conclude that the paternal grandmother gave this money to her son knowing that if, at some stage in the future, she needed financial assistance - as well she might, because she is not a wealthy woman - then her son will help her financially in turn, as best he can.
But Ms S also made it clear that if her son cannot pay, she will not ask for it. She offered the money to help her son, with no actual and final expectation of repayment. And it seems to me that a real expectation of repayment is an essential aspect of a loan and, to my mind, the expectation of repayment did not exist here to the level required for me to take it into account as a debt of the marriage.
I note the husband has commenced repayments recently, but this was initiated by him, not by his mother, according to Ms S. It seems likely that he commenced repayments at this particular time in part to shore up his claim of a loan from his mother, even though the repayments may also reflect an acknowledgement that his mother's financial circumstances are limited.
At the end of the day, I do not consider these monies should be treated as a matrimonial debt, to be repaid from the asset pool prior to distribution of the remaining assets between the parties. However the funds were clearly a direct financial contribution made on behalf of the husband.
As mentioned, the equity in the former matrimonial home cannot be precisely determined until the property is sold. Taking into account that uncertainty, the net asset pool for distribution is in the range of approximately $200,000 to $220,000.
The wife conceded that she will retain responsibility for her HECS debt in the sum of $3,925, and that the remaining Visa card debt is her responsibility, even though the account is in joint names. Obviously the husband’s name should be removed from the credit account, but I accept the wife’s evidence that she is unable to do so until she can pay out the full balance owing, which she will do at settlement.
In terms of superannuation, the parties have agreed to deal with the superannuation interests separate to the tangible assets. That approach is endorsed by the Full Court and I agree it is appropriate in this matter. They have also agreed a 50/50 split in relation to superannuation interests, and I agree that this split is appropriate, given that different section 75(2) or future need factors apply to superannuation, as neither party will not be accessing their superannuation for some years into the future yet.
The husband's superannuation is worth $98,904 and the wife's is worth $20,489, to a total value of $119,393. Each party will retain superannuation to a value of $59,696. When the wife's present superannuation is taken into account, a splitting order is required, in the sum of $39,207.
Contributions
The husband clearly feels that he worked very hard in both paid employment, unpaid labour and, indeed, in the homemaker and parent role during the marriage. However, I am not satisfied that his evidence is sufficient to satisfy me that he made a greater contribution than did the wife, across the parties’ 17 year relationship.
The reality is that every day the husband spent at work or every afternoon he spent renovating the premises, the wife was also making her contribution to the family. She was looking after the children, maintaining the home, was in paid employment herself at times and so on. I assess both parties' contributions generally across the marriage to have been equal, save from the issue of the funds provided by the paternal grandmother.
The wife argues that there should not be any adjustment in relation to these funds, but it seems to me a gift of $20,000 should be acknowledged, particularly given the modest asset pool that remains for division between the parties. The reality is if Ms S had not provided these funds to the parties, they may well have taken out another loan to purchase a new car, with substantial interest repayments across the life of their marriage. It is also possible that any bank loan would still have had a balance owing at separation, given that the funds were only provided some seven or so years before separation.
It is important that the parties understand that the Court's process in determining a property settlement is not an accounting exercise. A gift of $20,000 made seven years before separation is not factored in as a dollar for dollar contribution, in terms of my assessment of the parties' contributions. Nonetheless, I do take it into account.
I note that the wife’s parents also helped the parties occasionally, both financially and non financially. In my view this assistance is more akin to the usual efforts that may be made by extended family from time to time, whereas a lump sum gift of $20,000 is an exceptional event in my view, particularly for Mr and Ms Drysdale.
Taking into account that direct financial contribution, I assess contributions between the parties at 55 per cent in favour of the husband and 45 per cent in favour of the wife.
Section 75(2) factors
I am satisfied that a significant adjustment in the wife's favour is appropriate, notwithstanding the husband's evidence and arguments to the contrary.
Both parties are in their mid 40s and are in good health. The husband is in steady, stable employment, which is a substantial advantage to him in terms of his future financial security. The greatest benefit a party can take away from their married life together is ongoing, stable employment. It is an ongoing benefit that will reap many dividends for the husband, not just in terms of income and superannuation, but the benefits of long service leave, paid sick leave and so on; benefits not presently available to the wife.
The husband is living with his partner, Ms N. The future of their relationship is not yet clear but nonetheless, he still enjoys the benefit of splitting household expenses. This is an immediate financial benefit available to him that is not available to the wife.
I am satisfied that both parties manage their budget carefully and are doing their best to live within their means. I accept also that the husband is paying proper child support in accordance with the Child Support (Assessment) Act 1989, and will also be contributing to the children's school fees.
The wife is currently in the role of primary caregiver to the children and [Y], of course, is still a very young child, only six years old. Her role as primary caregiver is a significant factor that I take into account in considering an adjustment in relation to the parties' future needs.
There is no doubt the wife has a range of skills and past experience. As the husband pointed out, she has an impressive curriculum vitae, but the wife's recent work experience is much more limited, and has been mostly in the [omitted] sector which is not a sector that is travelling particularly well at the moment in terms of funding and, therefore, not a particularly easy area in which to resume employment.
The wife’s absence from the paid workforce is likely to be a significant impediment to her obtaining employment in other areas as well. I note that the wife’s prior employment was often on a part time basis. The wife should not necessarily be limiting herself to employment during school hours given that she can rely on after school care, as do many parents.
Nonetheless, with a young primary school-aged child, it is not unreasonable to imagine that part time employment will be more easily achievable in terms of balancing the wife's obligations to contribute to her own self-support and the support of the children, but also to manage her primary parenting responsibilities.
It is fair to say the wife could have pursued retraining opportunities earlier, but she is certainly seeking those opportunities now and will, no doubt, be putting her best efforts into obtaining future employment, particularly once the demands of this Court case and the house move are behind her.
Section 75(2)(c) and (l) specifically require the Court to consider a party's parenting obligations and, as I have said, while [Y] is still so young, that is a relevant factor for me to take into account, in terms of the wife's future needs.
Taking into account all of those matters, I consider a generous adjustment in favour of the wife is appropriate, given the modest size of the asset pool, the wife's limited employment options and the wife's role as primary caregiver to two young children. I consider an adjustment in the region of 20 per cent is appropriate, and conclude that the wife should retain 65 percent of the net tangible assets and the husband should retain 35 percent.
Conclusion
The wife will obviously need to re-establish herself and the children in suitable housing and that will be a very immediate priority for her once the former matrimonial home is sold. That, of itself, is a costly business. I accept the husband also had to re-establish his own accommodation after separation but he at least had a reasonable income to rely upon, whereas the wife's income is much more limited.
In terms of the parties' longer term financial circumstances, both parties will, no doubt, be looking to enter the real estate market into the future. The wife will find that much more difficult than will the husband who will be in a much better position because of his income.
Turning to the other assets aside from the former matrimonial home, their value is approximately $20,000, taking into account the motor vehicles and household effects. The wife is retaining the bulk of those items, valued at approximately $16,000, or approximately 80 percent of those items. Clearly there needs to be some adjustment on this account.
The husband proposes that this adjustment occur by way of more of the household effects being released to him. I note that the husband had attended at the house at least once after separation, and had the opportunity to collect household goods at that stage. The wife said she is happy to release a selection of items, in accordance with her handwritten list provided during the trial, but argues that the husband has become overly focussed on their furniture and chattels and it really needs to come to an end.
I agree. I will order the wife deliver up the items specified by her and will further allow the husband to choose one of the two buffets that are referred to on his handwritten list (one described as gifted by Nyland J or the other described as being located in the lounge room). The husband will otherwise retain the furnishings and effects in his possession now, together with the further items specified by me.
This still leaves the wife retaining the greater share of furnishings and effects. Accordingly I will make a further financial adjustment reducing the wife's eventual share in the equity in the former matrimonial home to 64 percent, rather than 65 percent. I do not pretend that this outcome reflects a dollar for dollar adjustment in terms of the value of the furnishings and household effects. Again, I remind the parties that the Court is not required to conduct a precise accounting exercise when determining these matters.
On balance, taking into account the past financial history and each party's future financial needs, I am satisfied that the decision I now to pronounce is just and equitable as between you.
I note the wife is not pursuing ongoing spousal maintenance. I consider that the existing order should continue until sale of the former matrimonial home, to ensure that the equity is not further diminished. I am confident the husband has the capacity to meet that payment over the next month or two while the property is sold. Thereafter the order will lapse at the time of settlement on the former matrimonial home and the wife's application for spousal maintenance is otherwise dismissed.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Kelly FM
Date: 25 September 2012
0
0
2