Duff and Duff
[2010] FamCA 934
•19 October 2010
FAMILY COURT OF AUSTRALIA
| DUFF & DUFF | [2010] FamCA 934 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests – Equal time – Presumption of equal shared parental responsibility FAMILY LAW – EVIDENCE – Admissibility FAMILY LAW – PROPERTY – Settlement in relation to marriage – Superannuation FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Future needs – Just and equitable |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Makita (Australia) & Sprowles [2001] NSWCA 305 Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Limited (2000) FCA 1463 Mazorski v Albright (2007) 37 Fam LR 518 Oscar v Traynor [2008] FamCAFC 158 Beazley v Andreopolis [2009] FamCA 567 C v G [2006] FamCA 994 Godfrey & Sanders (2007) FamCA 102 Goode v Goode [2006] FamCA 1346 Vlug v Poulos (1997) FLC 92-778 Townsend (1995) FLC 92-261 Chorn & Hopkins (2004) FLC 92-261 Omancini (2005) FLC 93-218 Townsend & Townsend (1995) FLC 92-569 Kawaliw (1981) FLC 91-092 Black & Kellner (1992) FLC 92-287 Weir & Weir (1993) FLC 92-338 Clauson (1995) FLC 92-595 Tomasetti (2000) FLC 92-023 |
| APPLICANT: | Mr Duff |
| RESPONDENT: | Ms Duff |
| INDEPENDENT CHILDREN’S LAWYER: | M. Tiyce |
| FILE NUMBER: | PAF | 1337 | of | 2004 |
| DATE DELIVERED: | 19 October 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATE: | 23 - 27 May 2005 Subsequent submissions filed |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self Represented |
| SOLICITOR FOR THE APPLICANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | Mr M. Brown |
| SOLICITOR FOR THE RESPONDENT: | Browns the Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms D. Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Partners |
Orders
Parenting Orders
That all existing orders in respect of the children, F born on the … December 1994 and G born on the … June 1997 (“F and G”), be discharged.
That the father have sole parental responsibility for making decisions concerning the religious education training and upbringing of F and G.
That the mother have sole parental responsibility for F and G in all other aspects of their long term welfare, education and development.
That F and G live with the mother.
That the mother shall advise the father in writing, and keep him advised in writing of the following:
(a)Any medical or dental appointment made for either child where such appointment is of a non-routine nature. Such notification shall be given at the earliest opportunity.
(b)All medication prescribed for either child. The mother shall provide such medication to the father on all occasions the children are to spend time with him. The father shall ensure that either child takes such medication in the manner prescribed.
(c)The particulars of the school which the children may from time to time attend. The mother is to keep the father advised of the names of class teachers for each of the children and is to inform the father of classes or activities in which the children may be involved.
(d)The particulars of any sporting or social activity in which either of the children is from time to time involved.
(e)Details of any production or similar activity in which the children or either of them are from time to time involved.
(f)Details of such other activities whether in the school or not, to which parents are invited. The mother is to ensure that she gives notification of such events immediately upon herself becoming aware of them.
(g)Any medical treatment which either of the children may from time to time be receiving.
(h)Any award, certificate or other presentation to be received or awarded to either of the children. The mother shall within fourteen days of receiving any document make provision for a copy to be provided to the husband at the husband’s expense.
That the mother shall within seven days of the making of these Orders give all necessary consents to any medical practitioner, school or organisation attended by the children or either of them so as to enable the father to obtain particulars concerning each child.
That the father spend time with F and G as follows:
(a) each alternate weekend from after school Friday until 8pm Sunday;
(b) each Wednesday from the conclusion of school until 8pm;
(c)each Friday when the children are at their extracurricular club from after school until 8pm;
(d)for one half of each school holiday period being the first half in the years where the school holiday falls in its entirety, or commences, and the second half of the school holiday period for holidays which fall in an odd numbered year.
(i)“First half” shall mean the period commencing at 9am on the day immediately after the last day of the preceding term and shall conclude at 8pm on the Saturday falling nearest the midpoint of those holidays.
(ii)“Second half” shall mean the period commencing at 9am on the Saturday falling nearest the midpoint of the holidays and concluding at 8pm on the Saturday immediately preceding the commencement of the next school term, where children actually attend school on the Monday but extending to Sunday at 8pm in the event that, because of a pupil free day or otherwise, the children do not recommence school until the Tuesday.
(e)at such other times as may be agreed between the parties in writing.
That for the purpose of the children commencing to spend time with the father in accordance with these Orders, and the commencement of that time does not commence from the conclusion of school, the father shall collect the children from the mother’s residence.
That when the children are to return from the father to the mother at the conclusion of any period of time, the mother shall collect the children from the residence of the father at the conclusion of each such period.
On these occasions neither parent shall enter the premises of the other except where invited or in the case of an emergency.
That either party shall be entitled to attend any activity, function or production in which either of the children are participating, provided that it is an activity or production at which parents are usually invited to attend.
That the parties shall use a communication book for the purpose of communicating with each other regarding the children. The father is to obtain an appropriate book for this purpose and thereafter the parties are to alternate in maintaining such a book. Such book is to be used only for matters concerning the care, welfare and development of the children or either of them.
That both parties be and are hereby restrained from speaking of or discussing the other party, or members of the other party’s family in any negative or derogatory fashion within the presence or hearing of the children F and G. Neither party shall permit, allow, cause or encourage any other person to speak in such fashion in the presence or hearing of the children or either of them.
Property Orders
That the wife within three months of the date of these orders pay to husband the sum of $155,964.
That upon payment of the whole of such sum within the time specified the husband shall thereupon do all things and execute all documents necessary to transfer to the wife his right, title and interest as tenant in common in the property situated and known as T Street (“the property”).
That in the event that said sum is not paid within the time specified above, the parties shall do all things and execute all documents necessary to procure and complete a sale of the property, by private treaty, at a price to be agreed between them in writing and failing agreement at a price to be determined by the President of the NSW Chapter of Institute of Valuers for the time being or his nominee. The parties shall accept the price so determined as binding upon them.
That the parties shall do all things necessary to appoint real estate agents and solicitors to act for them in the course of such sale. In the event that the parties cannot agree upon an agent to represent them, the President for the time being of the Real Estate Institute of NSW, or his nominee, shall appoint such an agent.
That in the event the parties cannot agree upon a solicitor to act for them, the President for the time being of the Law Society of NSW or his nominee shall be requested to nominate a solicitor.
That in the event that, within three months of offering the property for sale, the property is not sold (in that binding contracts for sale have not been exchanged) then the parties shall do all things necessary to obtain, procure and complete a sale of the property by public auction. In the event the parties cannot agree upon on auctioneer, then an auctioneer is to be appointed by the agent previously having carriage of the sale.
That in the event the parties cannot agree upon a reserve price for auction, the reserve price is to be fixed by the auctioneer on the day of the auction.
That upon completion of any sale provided for in these Orders, the parties shall deal with and distribute the proceeds of sale as follows:
(a)In payment of all legal fees and disbursements properly incurred in such sale,
(b)In payment of all agents, fees and commissions (including auction expenses) properly incurred in such time,
(c)In payment to the wife of an amount equivalent to 73% of the balance then arrived at; and
(d)In payment to the husband of the balance then remaining.
That each party shall, when required to do so, execute all documents necessary to give effect to these Orders in a timely manner.
That subject to the foregoing orders, each party shall be solely responsible for all debts incurred or presently held in their name.
That subject to the foregoing orders, each party shall be entitled, both at law and equity, to all real and personal property, contents, chattels, motor vehicles, monies in bank, monies in investment, monies held in cash and superannuation benefits entitlements in the possession and/or control of that party.
That all outstanding applications and cross-applications be dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six days from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Duff & Duff is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAF 1337 of 2004
| MR DUFF |
Applicant Husband
And
| MS DUFF |
Respondent Wife
REASONS FOR JUDGMENT
Introduction
This most difficult matter was heard over an extended period of time and in a series of episodes.
The parties are in dispute concerning the children of their marriage, or some of them, and the distribution of property following the breakdown of their marriage. The matter has been exceedingly hard fought and, because the matter has been adjourned on a number of occasions, the parties have had to give evidence on several occasions, as did Associate Professor QO who prepared reports for the assistance of the Court. The matter concluded with evidence and written submissions from the parties and the Independent Children’s Lawyer. There was some delay by the husband, who was given the option of filing his submissions last.
I am of the view that it is necessary to set out both the history of the parties and the marriage, together with a history of the manner in which the matter proceeded before me.
Brief History
I turn first to the history of the parties and the marriage.
1951 husband born.
1959 wife born.
1981 parties marry.
The following children were born to the parties:
a)A born in 1982.
b)B born in 1984.
c)C born in 1987.
d)D born in 1989.
e)E born in 1991.
f)F born in September 1994.
g)G born in June 1997.
The husband was employed as a public servant from the date of the marriage until the end of 1997.
In about 1998 the husband received a redundancy, and other termination benefits in the sum of approximately $150,000.
In 1998 the wife received $50,000 from the estate of her late mother.
In February 1999 the wife received a further sum of $325,000 from her brother in settlement of her claim concerning the estate of their late mother.
In February 1999 the parties purchased the property at T Street. The purchase price was $330,000 which I am satisfied was provided by monies received by the wife from her mother’s estate. The property was initially registered in the parties’ names as joint tenants. Subsequently the husband, without the prior knowledge of the wife, arranged for the title to be changed to reflect the parties holding as tenants in common in equal shares.
In 2001 the husband received $150,000 from the estate of his late mother. The wife agrees these funds were directed toward improvements to the property at T Street.
The wife left employment following the birth of the parties’ oldest child. Until 2004 the mother home schooled the children. Thereafter they commenced attending schools.
The wife thereafter returned to part time work.
The mother asserts the parties separated in August 2002, but remained separated under the one roof. The father’s evidence is that the parties separated in 1997 when the mother vacated the marital bed.
By Orders of 4 August 2004 the husband was required to vacate the matrimonial home.
Procedural History
The matter was set down for hearing before me commencing on 24 May 2005. Orders had previously been made on an interim basis in respect of the children F and G.
The matter was not able to be concluded by 27 May, the last day we had fixed for hearing. An updated report was required from Professor QO who had prepared an expert report in the matter. Accordingly the matter was adjourned to a date to be allocated to enable the report to be completed and for the hearing to resume.
The matter was back before the Court on 29 June 2005 on which occasion orders were made restraining the parties’ contact and any conduct involving each other. Orders were also made concerning physical chastisement of some of the children.
The matter returned to Court on 6 February 2006 for what was hoped to have been the continuation and conclusion of the hearing. Regrettably, the updated family report of Professor QO had not been prepared by that time. The husband insisted that the matter ought be dealt with in one continuous session, once the report had been obtained, rather than taking some evidence from 6 February onwards and standing the matter over until the report had been obtained. I ordered that the matter was to go over for a date for hearing for four days and this was done.
On 14 July 2006 further orders were made as to the parties’ behaviour in front of the children or other persons and restraining both parties from showing the contents of documents to the children or allowing any other person to do so.
The matter was back before the Court on 4 December 2006 for a further five days of hearing. However instead of the final hearing proceeding, that entire part of the hearing was occupied with the husband’s application, filed on 3 October 2006, to have the Independent Children’s Lawyer discharged.
On 21 December 2006 I delivered judgment in respect of that application. The husband’s application was dismissed and costs were reserved. The matter was then allocated further hearing dates of 26, 27, 28, 29 and 30 March 2007. The final hearing of the matter proceeded on those days.
On 27 March 2007 the husband made an application for me to disqualify myself which I dismissed. At the end of that stanza of the hearing the matter had still not concluded. It was allocated dates on 12 and 13 March 2008 and those two days were occupied with the final hearing.
The matter was back before the Court on 19 March on which occasion I refused an application for a further family report. I made orders for the Independent Children’s Lawyer and legal representative of the wife to file written submissions and adjourned the matter at the husband’s address to 25 July 2008 to give him the opportunity to address the Court orally, which is what he sought. I thereafter made orders for the father to spend time with the children.
On 16 July I ordered that the father have until Friday, 17 October 2008 to file written submissions with the wife’s solicitor and the Independent Children’s Lawyer having fourteen days thereafter to file in reply.
Subsequently on 15 October I extended the time for the father to file his material to Friday, 31 October 2008.
The Parties’ Documents
The Parties’ Applications and Responses (Not including materials related to applications in a case or contravention matters)
Wife’s application filed 4 March 2004.
Wife’s amended application filed 15 March 2004.
Husband’s response filed 22 April 2004.
Husband’s amended response filed 8 June 2004.
Wife’s amended application filed 2 September 2004.
Husband’s amended response to amended application filed 13 October 2004.
Husband’s amended response filed 24 November 2004.
Husband’s amended response filed 14 February 2005.
The Parties’ Affidavits (Not including materials related to applications in a case or contravention matters)
Wife’s statement of financial circumstances verified by affidavit sworn 18 August 2004 and filed 24 August 2004.
Husband’s statement of financial circumstances verified by affidavit sworn 23 October 2004 and filed 29 October 2004.
Wife’s affidavit sworn and filed 23 November 2004.
Wife’s statement of financial circumstances sworn and filed 23 November 2004.
Wife’s statement of financial circumstances sworn and filed 1 December 2004.
Affidavit of Ms CN sworn 1 December 2004 and filed 2 December 2004.
Affidavit of the wife’s brother sworn 30 November 2004 and filed 2 December 2004.
Husband’s affidavit (no date of swearing) filed 2 December 2004.
Affidavit of Mr AR (valuer) sworn 8 December 2004 and filed 9 December 2004.
Affidavit of VH sworn and filed 1 February 2005.
Affidavit of A Duff sworn 1 February 2005 and filed 7 February 2005.
Affidavit of the husband sworn and filed 14 February 2005.
Husband’s statement of financial circumstances verified by affidavit sworn and filed 29 March 2005.
Affidavit of the husband filed 7 January 2006.
Affidavit of DF sworn 7 March 2006 and filed 8 March 2006.
Affidavit of JG sworn 7 March 2007 and filed 8 March 2006.
Affidavit of the husband filed 10 March 2006.
Affidavit of GO sworn 6 March 2006 and filed 10 March 2006.
Affidavit of PL sworn 7 March 2006 and filed 14 March 2006.
Affidavit of WK sworn 14 March 2006 and filed 15 March 2006.
Affidavit of KB sworn 14 March 2006 and filed 15 March 2006.
Affidavit of Mr AR sworn 27 March 2006 and filed 3 April 2006.
Wife’s affidavit sworn 23 June 2006 and filed 3 July 2006.
Wife’s statement of financial circumstances verified by affidavit sworn 23 Jun 2006 and filed 3 July 2006.
Affidavit of the husband sworn and filed 28 September 2006.
Affidavit of the husband sworn and filed 23 November 2006.
Affidavit of Mr AR sworn 1 February 2007 and filed 8 February 2007.
Affidavit of the husband sworn and filed 2 March 2007.
Affidavit of the wife sworn 23 June 2006 filed 2 March 2007.
The Expert’s Report
Report of Dr QO dated 17 December 2004.
Report of Dr QO dated 2 May 2006.
The Orders Sought by the Parties and the Independent Children’s Lawyer at Conclusion of Evidence
Orders as sought by the wife in her legal representative’s written submissions are in the following terms:
1.That the husband transfer to the wife all his right title and interest in the former matrimonial home situated at and known as [T Street], NSW.
2.That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
3.That the husband and wife be declared to have the sole right title and interest in:
3.1Any chattels, goods, furnishings and other property, which are, at the date hereof, in their possession respectively.
3.2Any moneys, shares, debentures and superannuation entitlements which stand in their sole name respectively at the date hereof.
4.That the parties shall have equal shared parental responsibility for the children [F] born […] September 1994 and [G] born […] June 1997.
5.That the said children live with the mother.
6.That the party with whom the children live or spend time at any particular time shall have the sole responsibility for the day to day care, welfare and development of the said children.
7.That the father spend time with the said children as follows:-
7.1each alternate weekend commencing from 6pm Friday to 7pm Sunday;
7.2each Wednesday from the conclusion of school until 7pm;
7.3each Friday when the children are [at their extracurricular club] at school from after school to 7pm;
7.4at such other times as agreed between the parties;
7.5one half of all school holidays.
8.That the interim order providing for the husband to spend time with the children from 8am to 2pm Saturday be discharged.
The husband in his submissions made reference to orders sought by him at page 50. Those orders are in the following terms:
In the alternative to the previous children’s orders sought;
1.That the father and mother of [G], born […] June 1997, and [F], born […] September 1994, have share parental responsibility for these children equally.
2.That [G] and [F] live with their father and mother for equal time.
3.That equal time be determined by the father and mother in agreement based on the parents exercising their shared parental responsibility to meet the best interests of [G] and [F] which from time to time will change.
4.In the first instance, however, [G] and [F] will live with their father and mother for seven days on and seven days off, with the first day being a Friday after school or 4pm if Friday is not a school day.
5.Contact time to accommodate [extra curricular clubs], swimming and the like will be determined by the mother and father.
6.School holidays will be shared equally.
7.The first day of school holidays will be deemed to be after school on the last day [G] and [F] are required to attend school.
8.That the mother shall not hinder or interfere with the children [G] and [F] telephoning the father at any time.
9.That the mother shall not hinder or interfere with the children [G] and [F] being involved with or practicing their Catholic faith.
10.That neither parent shall express a negative view of the other to any of the children or any other person who may convey such view to the children.
For ease of reading, the property orders referred to by the husband by reference to his response filed 4 February 2005 are in these terms:
1.That the rights and title and interest in the former matrimonial home situated at and known as [T Street], NSW, remain unchanged by these final orders;
1.1If one of the parties (mother or father) wishes to solely reside in the said home, that party shall pay to the other a sum of money agreed to by both parties;
1.2If there is no agreement in 1.1 as to the sum of money to be paid, the said [6-8 bedroom] home shall be sold by auction by an agreed real estate agent, and any repairs or maintenance suggested by the real estate agent shall be carried out, at the expense of both parties, prior to the home going to auction;
1.3If the home goes to auction, a reserve of $600,000 shall be put on the sale and if this price is not reached, the parties must agreed before the home can be sold at a lower price;
1.4As an alternative to sale by auction, development opportunities may be explored by the parties for this [four lot wide] property;
1.5If orders are made which amount to a discrepancy from a 50:50 share of the home, the amount of the discrepancy shall be considered to be child support payments to the party with the greater share from the party with the lesser share, and held against future child support liabilities.
2.If as in order 1, one party wishes to solely reside in the former matrimonial home, that party must pay to the other an agreed sum of money or $20,000 to keep the contents of the home which are, at the date hereof, with that home.
3.That the husband and wife be declared to have the sole right title and interest in:
3.1.Any personal or business possessions which are, at the date hereof, in their possession respectively and;
3.2.Any moneys, shares, debentures, and superannuation entitlements which stand in their sole name respectively at the date hereof.
The Independent Children’s Lawyer for her part sought orders in these terms (found at page 9 of the Independent Children’s Lawyer’s written submission):
1.That the mother shall have sole parental responsibility for the children, [F], born […] September 1994 and [G], born […] June 1997, (“the children, [F] and [G]”) except for making decisions concerning religion, and in that regard, the parents shall have shared parental responsibility for the making of this major long term issue.
2.That the children, [F] and [G], live with the mother.
3.That the father spend time with the children, [F] and [G], as follows:
a)each alternate weekend from after school Friday until 7pm Sunday;
b)each Wednesday from the conclusion of school until 7pm;
c)each Friday when the children are [at their extracurricular club] from after school until 7pm;
d)for one half of each school holiday period being the first half in the years where the school holiday in an even numbered year an in the second half of the school holiday period for those holidays which commence in an odd numbered year;
e)at such other times as may be agreed between the parties in writing.
4.That mother shall keep the father advised in writing of;-
a)any medical or dental appointments to be attended by the children that are of a non-routine nature;
b)any medication being taken by any child or children and in this regard the mother shall provide such medication to the father and he shall ensure such medication is taken by the child or children at the time or times prescribed;
c)any treatment which the children or either of them may be receiving;
d)the particulars of the schools which the children may from time to time attend and in this regard the mother shall also advise of the names of teachers and details of classes or activities that the children attend or participate in;
e)the particulars of any sporting, social or other activity in which the children or either of them are involved;
f)the particulars of any function, display or production in which the children or either of them are involved or other activity to which parents are invited, such advice to be given within 48 hours of the Mother receiving such notification;
g)any award or certificate received by or to be awarded to the children or either of them.
5.The mother shall, within 14 days of the making of these orders, give all necessary consents to any medical practitioner, school or organisation attended by the children [F] and [G] or either of them sufficient information to enable the other parent to obtain particulars concerning such child or children.
6.The parents note that nothing in the preceding orders shall prevent either parent from attending any activity, function, display or game in which either or both the children are participating, provided that it is an activity, function, display or game which parents would usually or are invited to attend.
7.That both parties be and are hereby restrained from speaking about the other parent or members of the other parents family in a negative or derogatory manner within the presence or hearing of the children [F] and [G].
8.That each parent shall do all things necessary to ensure that the children [F] and [G] are not exposed to negative or derogatory comments about the other parent by any person or persons brought into contact with the children.
9.That for the purposes of the children [F] and [G] moving from household to household where orders do not otherwise provide for collection from the school, the parent to whom the child or children is going shall collect such child or children from the residence of the other parent but shall not enter the premises of the other parent unless in a situation of emergency or where specifically invited to do so.
10.That for the purposes of communicating information regarding the children [F] and [G], their needs and welfare, the parents shall, provided that the situation is not one of urgency or emergency, use a communication book which shall travel with the children from household to household in this regard, both parents are hereby restrained from making comments in such communication book that is not specifically about matters concerning the care, welfare and development of the child or children. If information regarding the children or either of them is to be communicated urgently for any reason the parents shall use telephone communication.
11.That both parents be and are hereby restrained from commencing and further proceedings in relation to the parenting of the children [F] and [G] without first obtaining leave from a Registrar or the Family Court.
The Wife’s Case
It was the wife’s case that the children should reside with her (in this context “the children” means F and G) and see their father for alternate weekends, midweek and part of each school holidays. It is her case that this is what the boys indicate they want.
She asserts the father has in the past been cruel to the children and has involved other children in unnecessary court proceedings. She asserts she is unable to communicate with the husband in any meaningful way.
She denies that she has alienated the children from their father, or has attempted to do so, and she denies involving any of the parties’ older children in respect of this. It is her case that the husband’s behaviour has had an adverse effect on all of the children save one.
As to property she asserts that her contributions to the assets available for distribution between the parties are such that they favour her to a significant extent. She asserts, and I accept, that she contributed a significant capital sum so as to enable the parties to acquire the former matrimonial home. She asserts that this entitles her to an adjustment in her favour. She further asserts that her contribution by way of physical work to the improvement of the matrimonial home must be recognised. She further contends that an additional adjustment needs be made in her favour by virtue of applicable s 75(2) factors and by the application of case law.
The Husband’s Case
The husband’s case is that the children need to spend more time with him and have indeed advised him that this is what they wish. The father asserts that the mother has been physically cruel to some of the children and that her relationship with the children continues to be poor. A central plank of his case is that the mother has deliberately alienated the children from him and has encouraged the older children, with the exception of A, to assist her in doing this. He says the children should effectively spend equal time with him as this is the only way their safety and wellbeing can be assured.
As to property he says he made significant contribution to the assets of the parties. He says were it not for him, the mother would not have received money by way of a settlement in respect of her late mother’s estate and accordingly he is entitled to receive recognition for that fact.
He further asserts he made significant contributions by way of salary and monies he received at various times throughout the marriage. It is his case that at present he has no significant income from his consulting business, and that this must be recognised by any further adjustment arrived at by the Court.
Both parties refined their positions as the matter progressed. In written submissions the parties and the Independent Children’s Lawyer set out the final orders sought by them, and which I have already set out in these reasons for judgment.
The Hearing Before Me
I turn then to the evidence before me in this matter.
The first witness called was the wife. She gave some evidence in chief to her counsel by leave. She indicated that she taught lessons for three hours a week during school term for $24 per hour. In addition she had a couple of private students paying $40 per hour. She had read Dr QO’s report and was in favour of the suggestion contained at page 64 of that document. Dealing with the husband’s affidavit she said she was not confirmed but she took part in mass. She did not take communion. She said she had home schooled the children; games and excursions were provided by him. She said between 1988 and 1998 the family had no car. She said that so far as discipline was concerned it was mainly done by speaking to the children but there could be smacks. She asserted that the husband had said that if she looked after the house and the baby, he would look after the money. Until 1997 the husband had worked full time, leaving at 8am and sometimes arriving home very late. She said that the phone was connected in 1997. She said the seven children slept in one room; there were three double bunks and one trundle bed. She said that the husband would stay up very late and sleep most weekends whilst he was working. She said when he started his consultancy, he worked in the morning.
She said she helped the husband with the business. She could not cope with the housework, the house was in an appalling state. She said he would come in after midnight and start to wake the children to demand the house be cleaned. He insisted the children clean it up. A washing machine was purchased in 1999. She said the husband had painted the front barge boards of the property and done some undercoating. She asserted she did the balance with C and E assisting.
She said, as to her alcohol consumption, she drank socially. In 2002 she had difficulties with her gall bladder which caused her to vomit. She said that A had objected to her choice of visitors and she had hit him. She asserted the husband did not try and stop this. She had read her son’s affidavit and said he was present at Court.
She said that she and the husband decided to home school the children. A was accepted for a selective high school. The wife said she had wanted him to go however the placement was declined and he was home schooled for the entirety of his high school. She said in 1997 or 1998 they commenced to use what they referred to as the ‘annex’. From 2002 onwards the household was very tense after the parties had separated under one roof. She said that in April 2004 she had seen bruising on B’s arms.
Ms Harris for the Independent Children’s Lawyer then by arrangement cross examined the wife next.
To Ms Harris the wife said that there was no objection to the Independent Children’s Lawyer’s counsel continuing in the matter notwithstanding some professional connection with the husband.
The wife then continued in chief. She did not concede that she was the aggressor in sexual practices between herself and the husband. She knew of shares that had been sold for $40,000, having become aware when she read documentation. The money she said had received for the children was by way of gifts.
Ms CN was then interposed by telephone. To Ms Harris she said she had known the wife for ten to twelve years before going to New Zealand. She had visited her at her home a number of times a week but not of any set time. The children were generally present when she visited and she observed the children helping her, clean and wash dishes, and were involved in general cleaning activities. She observed the husband to participate. In the N Street unit she said the children slept with two sets of bunks and the others on a couch; the premises was very messy. She observed the father overrule others. She never saw the wife smack any of the children. She did see the father order them to do things but she never saw him smack them. On occasions when in Australia she has seen the mother and children; she last saw them in 2004. She said the husband never appeared to be residing in the home.
The husband then cross examined Ms CN. He put to the witness that she had criticised him in front of the children and she replied she would correct him as to the way he said something. She said over a period of nine years, it may have occurred more than twenty times. She said she had observed both mother and father criticise each other in front of the children. She said she was aware of the wife drinking and on one particular occasion she was wise not to have driven home.
Ms Harris then proceeded with cross examination of the wife. She spoke of her religious faith. She said, whilst not confirmed, she was active at church where she read. E was an altar boy. The younger two children went to church with their father. The father took the children to mass on certain weekends and the mother took them on the other weekends. There had been discussion about confirmation classes for G. F had had his First Holy Communion.
As to home schooling the children, the requirement was for five hours per day with a minimum of 200 hours, a total of 1000 hours of education. The wife said that she home schooled A to the Higher School Certificate. B attended TAFE for years 10, 11 and 12. She said the father did not involve himself face-to-face with the children although he was qualified to teach mathematics and science at a high school level. She said the father played games with the children. She said she had chosen the children’s school and the father showed little interest. She said that as to the hours and other details, she kept very few records at the end. She said that in earlier premises the children had worked at the kitchen table.
She said she and the husband realised in 1988 that A was gifted and a decision was made to keep him at home. The expression she then used was that the others fell into place as they came along. She said she had told the father over a period of time that she wanted to send the children to school. He said he could not afford this and the children must continue home schooling. D was in a drama group and E would play football. Four of the children did swimming classes and gymnastics for a short period. The wife said she took the children to both activities.
From 1998 the children attended dancing on Thursday evening and on some Sundays for competitions. The children started dancing at an early age. The father did not attend. The mother said she paid the fees for these activities out of housekeeping. She described the husband as intimidating by means of giving a death scare and applying firm pressure on shoulders. He also intimidated by word and gesture. The mother spoke of giving the children a smack on the calf when they were outrageous. His concerns about the wife’s discipline she said were unfounded. He made a lot of noise.
She spoke of the father shoving B’s head into a wooden bed when B was twelve. She says that she was horrified.
She said she received no outside help. A broke B’s nose. They got in each other’s way. She could not recall the father’s reaction to this.
She referred to an episode on 29 June 2002 when A said something and she reacted. She described it as a horrible episode which she had tried to discuss with A. He had left the parties’ home in August 2002. B had asked to be taken to a police station and she had observed bruising on him. She spoke of an episode where B had injured his arm. She said that to say he had run away was an exaggeration. There had been talk of accounts right after that episode.
She spoke of Local Court proceedings brought by the plaintiff in which she was the first respondent, B the second respondent and D the third respondent. At that time B was eighteen and D fourteen. D was very upset. She said that she had filed documents and appeared at Court. She had suggested that D speak to the Independent Children’s Lawyer. The proceedings had been dismissed. Since then, the husband had contacted her solicitor. She said that she thought he would pursue the claim.
As to an episode on 28 June 2004 she said she was in what she described as the teaching room and the father was in another room. She would not let him enter her room.
She said that when she was involved in evening activities, it fell to the older children to look after the younger children. She said she had wanted to see their father alternate weekends and half of the holidays. She said it was untrue she had brainwashed the children. She said she went to Scotland for five weeks while all the children were in the house. She had been away for four days when she received word that the father had taken out an apprehended violence order to have her removed from the house. She said she had last seen a doctor in the previous week. She saw him six to eight times weekly to discuss her mental health. She had gall stones for which she had surgery in 2003. She spoke of her symptoms having been affected by alcohol. She said that she had been to keep in contact and would continue to do so even without an order. She felt uncomfortable speaking to the husband face-to-face and said that telephone and letter would be better. She thought mediation would assist.
That concludes the cross examination by Ms Harris. The husband then commenced cross examination of the mother.
She agreed that she and the husband had been of some help to each other during the marriage. Speaking of a performance she agreed the husband had financed that production from the business. She did not accept that the father had minded the smaller children when the older children were engaged in activities. She agreed the husband never hurt her during the course of the marriage. She was aware that the husband saw clients away from the home.
She denied, or did not recall, the children going to the father with difficult maths problems. She did recall on occasion when A went to her with a mathematics problem which she was unable to solve. She said that she was aware the father liked chess and that A had some talent. She said she had asked the children to speak freely with the Independent Children’s Lawyer. She said the children had been taken to Westmead Hospital. The children had been taken to collectors fairs. She said she was not sure what the husband did when the children were with her. The children did not always tell her where they had been. She said she had cuffed or tapped the back of the children’s heads, not slapped them. She had not hit them with sticks or spoons or any other item.
She said on an occasion of G’s birthday that other people were there, she could not recall if she had consumed alcohol.
She did not know what her payout entitlements were when she left the public service. She again said that the husband left early and returned late and stayed up late frequently until 2am or 3am. She agreed she may have criticised the father in front of the children and perhaps others. She agreed that on occasion she would share a glass of wine with others.
At this stage the wife’s brother was called and gave evidence. He spoke of being the sole executor of the estate of his and the wife’s mother. He said he had seen and spoken to the husband, and that he obtained a lawyer before they spoke. This related to a claim that the husband had become involved in, being a claim by or for the benefit of the wife in respect of the estate of her late mother.
The husband then gave evidence.
He said that if the wife had problems, she was not telling him. There were no lines or levels of communication. However he said that the wife abused him but they did not argue and that this was done in front of others.
He said certain items had been removed from the unit and had disappeared. The wife, he says, was the only one who had a key. He was concerned about items such as BBC Dilec Shakers (Dr Who).
He was concerned for a theremin, a musical instrument with a value of $1,700, which he wished to acquire.
He said that he had tried to do homework every day as best he could. He helped with some schooling of the children but not every day. He said that after leaving employment his contributions were greater and when the wife could not cope, he stepped in. He said the older children made real contributions in helping the younger children.
He said that Dr QO had interviewed A by telephone and not with the other children. He said in December A had come to live with him. The children had always been delivered by their mother and he was aware they had said they wanted more weekends with their mother.
He was then cross examined by Ms Harris. He said there were no proceedings in other courts. He said he was contemplating an action in the District Court involving the incident with B. He said he would not proceed against B.
He was shown a document and he indicated he believed B’s bruising was self inflicted.
He said he had tried to be truthful with Dr QO.
He said there were no AVOs on foot. He said he did not know if it would put pressure on the wife if there were outstanding proceedings. He asserted the wife suffers from depression. It was put to him that his view was that he wanted shared care of the younger children to save them from alienation as against himself and he agreed. He said it was not possible that the continuation of the proceedings would have an effect on the children.
He spoke about emails between himself and the school. He said in relation to the emails his mind was a blank.
On 1 March 2004 when the older children had come to collect the younger children he said he was not going to return F and G for a week. He had told the school that the mother had hurt the children and thrown them out. This related to A some years before and he was setting the record straight. He wanted to point out there was violence towards the children but it was not from him. He said there were indications that the family was dysfunctional.
He asserted he was home schooling the children. He said he was distressed while giving his evidence about whether he could see his children. When asked if he could see how the children were feeling he replied “she is the applicant”. He asserted that the wife had threatened to kill him when she returned from Scotland and he reported the threat to the police. He contacted DOCS as he considered the children were at risk from their mother.
The father said that he had taken the children out of school for counselling and, that he needed an assessment of risk at the hands of the wife. He got copies of reports for which he had paid up to $500, in which he borrowed that money.
He said he needed a letter from the school about an allowance, he wanted a letter to answer questions by Centrelink and the Child Support Agency.
He said that he had served D with process. He told her he had a letter, it was a statement of claim in an envelope. He said he knocked on her bedroom door. He denied he had ever told her she was fat and ugly. If she had told Dr QO that he had done so, it was not correct. He said D was fourteen when he served the document upon her. He said he had thought about the effect on the child of serving her and thought she would understand. He said her statement put him in gaol. He had served B who had cut his wrists and ran away. He said he was concerned for B’s state of mind. He said he was not a psychologist but his actions would not have driven the child to do something silly. He did not think the child would react. He accepted the mother’s assurance that B was okay. He said he was now sorry he had served documents. He said he was pursuing his claim. He said an episode with B occurred after 11am; where he was at the fridge, and the child shouted at him. He denied he grabbed him but said he pushed him off and that the child was up against him and grabbed his arms. He described the child at that stage as being of his height and solid build. He then said he pushed him off and was not sure if he grabbed him, he may have done so. He said that his actions may have caused bruising. He was not aware that counselling had been arranged by the mother.
He said the mother became more assertive before she left for Scotland. He said D is intelligent, artistic, loving and a natural teacher. He did not agree that the mother was an extraordinary parent. He agreed she grew her own vegetables and kept fowls. Clothing was bought from St Vincent De Paul’s. He said that firm arrangements had been made for B to spend time with a couple so he would not be disturbed. He said he took out an AVO and police arrived to serve that document. B was at the family home when the mother left. He said he did not want B in the house after that. He said he had no knowledge of B being served with an AVO. He indicated he could not produce all documents sought in a notice to produce served upon him but he had some tax returns for the years ended 2001, 2002, 2003 and 2004.
As to property matters, he said there were two entries for him as a consultant in the Yellow Pages. He charged $205 for a consultation. He had started consulting in 1998. He had registered as a sole trader. He carried professional insurance. He was in the public service up to 1997, he had worked 9am to 5pm Monday to Friday. He worked some times as late as arriving home at 11pm.
He was asked whether A was present in Court and he said he was. He was asked if he was saddened to see him witnessing the proceedings he said half and half, and that the child was there to support him.
He said he purchased a diary in 2004 and that it was not filled in on one sitting. The larger 2004 diary was for Centrelink and he had shown it to them. There were entries in the larger diary but not in the smaller diary and they were mostly correct.
He again said the children were suffering from the mother’s abuse. When asked about 4 August 2004 interim orders he said that he holds no licence for firearms. He said he buys A’s food. He said he provided him with $1,250 for a computer and to buy parts. The amount was not a loan. He considers the computer to be his. A further $250 was provided later for computer parts. In relation to Alvium Pty Limited shares he said that he had an account $40,895 that came from the sale of shares and he deposited a further $769 from share dividends.
A cheque to a Ms HN of $278 was in repayment of a loan and to Ms GY for $5,000 was in repayment of a loan for legal fees and to obtain transcripts. He was asked about withdrawals in the amount of $10,000 which he said were to pay AMEX and to pay bills. When asked why he paid these bills in cash he replied why not.
When asked about an amount of $54,000, which appeared in Exhibit 5, he said this probably came from the wife’s mother’s account. The amount of $325,000 from her brother was made out to her. He said he receives rent assistance. He says he has no taxable income. He is aware his wife has to support the four children on the pension and casual teaching. He said if the children contributed she could make ends meet. He said he paid for food and entertainment and other expenses when the younger boys were with him. He said he paid medical insurance.
He said later the wife had taken out health insurance and the other policy had lapsed. It was put to him that he took $140,000 when he left. He could not locate any documents in relation to this. He said he had paid a deposit for T Street of $33,000 in February 1999. He had received monies from his brother in excess of $54,000 which had paid from T Street. Money was received from her mother’s estate. After July 2001 the sum of $150,000 was spent on renovations.
To Ms Harris he said he was not involved in any other litigation and did not intend to become involved. He spoke of environmental proceedings and an appeal to the Supreme Court and said this was a Land & Environment Court matter. He had spent a considerable number of days in Court. When asked about a charge he had made, he said this was to a client that he (the husband) had assisted at the Sydney Registry. The husband said he was asked to consult for this gentleman and that he had assisted with drafting documents. He had written documents at the gentleman’s request. He had attended at Court to support. He said that he had forgotten he had attended the Family Law Reform Association. It was put to him that he enjoyed litigation which he denied. It was put to him that time spent involved in court proceedings could have been used in paid employment. He said he thought the first Apprehended Violence Order sought against B was in October 2003 and again he said he did not know when B was served. He conceded this may have caused the child some concern.
By leave Ms Harris asked further questions. The husband conceded that his CBA account was for the receipt of benefits which were then paid out leaving a $0 balance. At the present moment there was $990 in the account yesterday having been pension day.
He said he prosecuted the Apprehended Violence Order against B himself. He was not aware if he attended each time. There were a number of appearances in relation to the matter between the 14 October and 18 August 2004.
He agreed that after 17 April 2004, two further sets of proceedings were commenced. Firstly he was charged, and he commenced civil proceedings. He said he wanted to explain to D the effect of making false statements to police and the consequences. He said she had not been truthful as to what happened between B and the father in the kitchen. It has always been the father’s assertion, which he adheres to, that D came out of her room after he (the father) had left the kitchen. He said it was always his intention to withdraw the proceedings. He said that he had told her he would discontinue but does not know what he told the wife in this respect. He said to the Independent Children’s Lawyer in July that he would withdraw if D acknowledged the statement that she made was made under the influence of her mother. He said that the wife acted entirely inappropriately in involving D in any way. There was a subpoena addressed to C to give evidence which he had served personally and tendered conduct money; C was sixteen or seventeen at the time. The father said he was not aware of the involvement of any other children.
He said he had prepared A’s affidavit by reference to a diary. He did not want this Court to have access to the Local Court file. From the statement B had made, he asserted it was clear the mother had put him up to it.
It was put to him that the proceedings were about him and a perceived injustice to him. He said this was not so. He said he obtained transcripts for reference and spent some $900 to obtain transcript of 6 June. When asked what financial contribution he had made to the mother and children since separation he said he had paid some bills and insurance premiums. He said he had paid one electricity bill for the home, one gas bill and insurance premiums. He said that he made some donations totalling $50 per year. He was unable to give accurate figures for any amounts he had paid for the support of the children.
I then heard submissions and made interim orders and the matter was stood over to a date to be fixed for continuation, and hopefully completion. At the same time I made an order for the report of Professor QO to be updated.
The matter was in before the Court on 6 February 2006 on which occasion the matter could not proceed because the report had not been obtained. The matter was then adjourned and subsequently relisted on 26 March 2007.
When the matter came back before the Court on 26 March an application was made by the husband for me to disqualify myself. I dealt with that application and proceeded with the hearing. The husband then returned to the witness box and was subject to further cross examination by the Independent Children’s Lawyer.
When evidence resumed, the husband under cross examination said he had seen E at school and in the train. He said E could suit himself about contact and then went on to say he could not spend time because of past and present alienation by the mother. He said that in the past the mother had enlisted the children to assist her. The mother had said to the children “see how he starts arguments, see how horrible he is, he is going to take the house away”. This, he asserted, continued up to the present date. He had read Professor QO’s report. The children had told him “mum says you’re a terrible person”.
He asserted he wanted equal time with the two youngest boys. He wanted them with him Wednesday night, Thursday night, Friday night and Saturday. He spoke of having the children five days in one week and eight in the next. He said that if the Court ordered equal time he would reduce his study load from four to two units per semester. He said he would probably not do four if the arrangement remained the same. He said his course involves no face-to-face teaching and is done completely online. He said he had no idea about plans for work and did not know if he intended to work. He says he does not know what he will do with his degree.
He said he has sold items to raise money since 2005. He disposed of a collection; he did not know how much it raised; he had disposed of it in a number of lots to a dealer. He did not know about documentation. He later conceded that the amount involved was just over $2,000. He said he had superannuation of over $20,000. He had sold shares for about $40,000 before 2005. The money he had received had been utilised for living expenses for himself, for the children, rent, food and clothing. He said he does not pay the children’s school fees. He has purchased encyclopaedias, books, crafts and games for them. He has paid for transcript an amount of $13,000. He said, of Professor QO’s report, he thought that she had got it wrong, and that her diagnosis of him is incorrect. He said he has eight witnesses who can give evidence as to his mental state and health from life experiences. One of those witnesses is a qualified psychologist who has not prepared a report and has not seen him in a clinical situation.
When asked if he had consulted a psychiatrist about either a possible personality disorder or depression he said no. He asserted that he had self diagnosed traumatic shock when first interviewed by Professor QO. He said this was not apparent on any other occasion and he was not presently suffering. He said he went to Unifam sessions which were of some assistance to him. They explained the dynamics and allowed him to reflect better on his relationship with the children over time.
He continues to want shared parental responsibility. He said he and the wife can communicate over some things and their communication has improved. He said he needs to be close to the mother if she relocates because he needs to be close by the children. He said he is not assessed as liable for any payment of child support. If not involved in court proceedings he can support the children from his business. He had told Mr Tiyce that the reason he wanted to adjourn was because of his university commitments. Proceedings have taken longer than necessary and there would be no impact on the children of extending the hearing by means of an adjournment. He did not agree that the children could not settle until proceedings had concluded. He said when the children stay with him they occupy double bunks in the lounge room. A is to move out shortly and is to commence working.
Mr Brown then further cross examined by leave. The husband said that he was concerned at the alienation of B, C and E. He asserted that at the time of the report both C and B were, and remain, alienated from him. As to E he was not sure. His case was that the wife commenced and maintains alienation. He said he had concerns for E and D. It was put to him that apart from A his relationships with all his remaining children had broken down. It was put to him that each of the four younger children and he had experienced a breakdown in their relationship. The husband put this down to the wife’s alienating behaviour but did not know it was solely down to her state. Later he indicated that the alienation was solely down to the wife since May 2005. He said there had been an improvement in communication of recent times. He spoke of swapping time with the children when the mother went regional New South Wales. He said there have been agreed variations partly by use of communication books and partly by oral communication. It was put to the husband that the wife had not engaged in behaviour that would alienate any of the children and the husband disagreed. He said she would continue to say negative things. He said the wife attempted to have the older children use force to ensure that he had no relationship with the two younger boys. He said it was not to the mother’s credit that she had made changes to contact times. He gave her credit for extra time he was allowed with the children but not for equality of her relationship with the children.
In what effectively was re-examination the husband gave further evidence.
The husband gave evidence by way of re-examination. He said there was significant sale of collectibles for just over $2,000, he could not remember when but said the collectibles were sold through an agent. He had no receipt. He said that his superannuation entitlement was net $28,132. He said that the cause for alienation was the wife instructing three older children to stop him having time with the younger boys F and G.
He said that if the children were not told certain things there would be no alienation. He said that nothing he has done could have caused alienation of any of the children.
He said that the mother had started arguments and she would then gather the children and tell them that their father was trying to take the house away.
He said the three older children had at various times assaulted him. He said the older children believe he was trying to take the house away. D had seen attempts by B at suicide. B had cut himself half a dozen times. On a particular occasion he had cut himself near the wrist but there was no mention of suicide. D was not there on that occasion. He asserts that D gave false evidence concerning a suicide attempt. He said that he had not assaulted B; B had assaulted him. He later saw D and C in the hall, both had asked him what had happened.
He asserts the wife told B to go to the police. Some time later D had told him that the mother and B had told her to go to the police. He said that he was scared and took advice from a law student. He said he had taken action against D because he was scared. He agreed it was stupid to accept the advice he did. He said D and he had subsequently shaken hands.
He said that in relation to D he took some responsibility.
He said that B would not speak to him.
He said that he was not suffering from traumatic shock but that he was stressed whilst in Court. He suffered from heat rash, an aversion to bright lights, back ache and knee problems.
He agreed that six of his potential witnesses were members of a family law association. He said that he would use his degree, whether he completed it or not, in the course of his consultancy business. He said he had been put back a year in relation to his course and that in order to increase his income, this was a set back. He said that he needs to increase his income from his business and saw a niche market for himself.
He said that the wife had agreed B would stay with friends at a friend’s place while she was away. Later however he stayed in the home. He said that he was a pacifist who never retaliated and had to get an AVO to require B to leave the home and that when he did so, B went to friends. He then by leave gave further evidence in chief that the mother had told him she was quite often depressed. She was withdrawn, would not work and would be alone. He was aware the wife had taken antidepressants. He was aware that E in the past has taken antidepressants. C and A all take antidepressants. He said the mother’s mother suffered from depression.
The Independent Children’s Lawyer was then granted leave for further cross examination. When asked how he would use his degree he said in consulting and in assisting people to draft documents. n addition he was writing a business plan and people seemed impressed that he had some form of tertiary education.
When asked how a degree would assist in drawing documents he replied that this was all to do with the perception of a client.
He said that he was a consultant. He wrote and edited. He said that the ability to do this will increase by virtue of tertiary training. He said that when he mentions that he is a tertiary student some people seem to be impressed. He said that he needed a further eight subjects to graduate. He said in 2003 the mother had locked a child in her bedroom. He said in 2003 the wife kept G away for weeks at a time.
Subsequently the wife was recalled by Mr Brown. She indicated that she had sworn further affidavits on 23 June 2006 and 2 March 2007 and a statement of her financial circumstances.
She said she has heard the husband’s evidence of her taking G to her room and locking him in. She said this did not happen at any time. She denied she had said to the children he was a horrible person save for one occasion in 2004 after he had changed the title on the house. On that occasion she became angry, she said he was a horrible person for what he had done. She had not repeated this accusation.
In further cross examination by Ms Harris, she said she had not read Dr QO’s second report. She held concerns for E. Since the report she had spoken to school counsellors and had not done so until the commencement of the school year. She said that E was again displaying distress. The first appointment was on 5 March and she attended with the child, a mental health counsellor was present.
It was decided that he no longer needed medication but he needed ample amounts of sleep. The child had regular meetings with the school counsellor and has a time-out card.
She said there had been no face-to-face time between father and E. E had told psychiatrists that he did not think about his father.
When asked if any child had asked or did ask to see their father, she said she would of course assist in doing this.
She said the youngest boys F and G have been guarded in what they say. In the last year F has done well. She says G had settled this year more easily having seen the school counsellor at the end of the previous year. She said the child says it is no fun at school. She said that the plan for E was that he would get an apprenticeship and he would leave at the end of year 10.
She said that on one occasion she became irate at him for changing the title. She indicated there had been discussions with the two older children concerning the mortgage and to help with acquiring the house.
She repeated she was teaching casually at schools.
She said that D was back at home doing her last two years of high school. She said she was working part time but not helping financially. She said B and C were both apprentices and each paid $50 and provided some extra help.
F, E and G are at a Christian School, the cost is $1,700 for the term for all three for a four term year. The father is not liable for child support. At weekends, the children wear school uniforms to and from his home. I presume he provides clothes. When the children return they say nothing adverse but they are very tired. The mother says she believes the children are settled into a regime. The communication book has worked well. For an ordinary medical appointment I prefer not to go with the father but if it were serious then I would do so.
She said D does not discuss the father with her (the mother). She says she does not want to spend time with him.
The older children spent no time with their father at Christmas 2006. It is important for the younger two children to see their older two siblings. The mother said she thought it was okay to have a relationship with their father and she had a role in achieving this. She said the father seemed less vague than previously, he insists that she attend at changeovers. The mother said she was not in receipt of legal aid and would pay costs from the proceeds of the property settlement.
The husband then further cross examined the wife. She agreed that F is in an advanced class of year 7. She said that at the end of 2006 G wanted to stay home and did not attend school counselling with G. It was put that the wife should be passing information to the father. The mother said she did not remember and did not remember putting material in their contact book. She said she was still having explained to her the concept of joint parental responsibility. She agreed the father had care of the children on occasion. The mother said that she accepted that, on occasion, the father assisted with homework.
It was put that D left home twice; the mother denied this and said she only left once in March 2006 and returned home in October 2006. The mother said she gave the father no indication that D was leaving and did not think it necessary to involve the father. The mother said the father was informed when the child left, it had been a matter of discussion for three months. The child was sixteen at the time she left.
E has been prescribed antidepressants by a family doctor. The mother said E had made it clear he did not want the father involved. E saw a psychiatrist. She agreed the father did not know until afterwards. The Independent Children’s Lawyer was informed at the same time.
She agreed there was a Court order requiring the Independent Children’s Lawyer to be informed. She said that antidepressants had been prescribed to the child prior to him seeing the psychiatrist. The mother said she would inform the father now that she was aware of legal requirements. She made it clear she had no respect or trust for the husband and she would inform him because of the legal requirement, not because of any regard she held for the father. She said the father had been removed from the home in 2004, his possessions were at the unit. She said there was only a change of clothing and a toothbrush at the home. She asserted the husband took everything except a pile of rubbish.
She said she had allowed the husband to collect some things, books for example, but children were using other books. She said that as she had day-to-day care of the children it was more expedient to have the children where the children were. She confirmed she was a qualified teacher. She said she does not know what interests the husband had but agreed that G had told her that the father helped him with his spelling.
The mother confirmed that she had a poor view of the husband and could not answer about the assistance he provided. She knows the husband attends at school functions and teaches an extracurricular activity which would indicate he showed an interest. She said that if there were any major and critical issues, she and the father would be able to work through them together but on day-to-day things she said she had difficulty in trusting the husband. She knew that the husband delivered the children to the home but on one occasion she had refused to let E pick up the younger children. After that, she rearranged her time.
She said that F will stay home today, D will care for him. She said she would adhere to orders. She said on occasions when she has tried to talk to the husband she has knocked on his door. She said she did not want the husband in her room and that G from time-to-time was in her room. She said she recalled on one occasion when B locked G in and police were called. She said that on one occasion she put the husband down in front of the children and that she had spoken to the adult children about their assistance in looking after the house.
She said the husband had made it clear that he wanted a certain sum of money and the house would have to be sold. She asserted the husband on one occasion had said the house was cold and he had never wanted it. She said she had discussed times with F and G and did not want the father to have them on Sunday night.
She said she had been taking antidepressants since 2002 and remained on the same dosage. She agreed the situation had not been resolved and the parties were still in and out of Court. She agreed it was her application and that the matter had not settled for good reason.
She agreed there was a phone in the home so that she could maintain contact with F and G. She said the phone sometimes was not hung up properly.
She said the first ten years of the marriage were amicable. She said the father had accompanied her to doctors and pregnancy classes and had taken time off to be present at the birth of the older children.
She said in 1996 she met Ms CN before the birth of G. She asserted that Ms CN was her best friend and she confided in her. She agreed this was possibly done to the exclusion of her husband.
She said she and Ms CN went to each other’s homes and at her home she and Ms CN would sit in the mother’s room eating and drinking. She said they were affectionate towards each other. She did not recall Ms CN sleeping over other than when she came to visit from New Zealand. She agreed they would close the door.
She said she and the father ceased to be best friends when Ms CN became her best friend. She agreed Ms CN did not like the husband. She did not discuss with Ms CN the prospects of going to Court until 2003.
The mother gave evidence of a party at the home. Ms CN and a friend were in attendance. There was an episode with A. The mother said that she had punched him a number of times, she was distressed. She asserted that no serious damage was done and the boy continued to rant at her. She said she has apologised to him and told him she was sorry. He had refused a face-to-face meeting. It was put to her she had slammed the door on him and told him to “get fucked”. She had not said “never forgive, never forget, never say sorry”. She said she had never said “never say sorry”.
She said the marriage was difficult and it was hard to be cheery. She said following difficulties she had found out that her blood pressure was high and she was required to take medication. She was medicated in respect of gastritis and used anti-inflammatory medication. When asked about any effect that may have had on her moods she said they improved her health and she felt better. She said that her doctor wanted her to stay on antidepressants until the court proceedings had finished.
She said that on a couple of occasions, when the children were frightened, they would stay in her room and she refused the husband entry. She said she had gone to Scotland for five weeks in October / November 2003 which was B’s high school year. There was friction between B and his father. B agreed he would stay with friends whilst she was away. However this was a definite agreement as the child was concerned that if he left the home he would not be allowed back.
She said that at the time the father and herself were attending marriage counselling.
She said in hindsight she agreed it might have been good for B to remain away from the home. As soon as she had left, the father arranged for an AVO to be served by police on B. The mother said that the father was doing everything he could to get rid of the child. She said that E had found and read court material but that she had not shown court material to anyone.
The mother said the father had not been physically violent or threatened physical violence. She said the husband and she could reach agreement about F and G, that both were trying to act in their best interests.
Sunday night presented a problem with preparation for school and getting them to school on the following Monday. She said the children had expressed a wish to come home on Sunday evenings. As to a proposal for the children to spend Wednesdays overnight with their father, she said the children do their best from home which I took to mean her residence. She said there had been an overnight in March which had worked okay. F prefers to come home. Mother said she does not want the father’s stuff at the home.
She said she had chosen a school unilaterally and enrolled the children.
When asked if she told the school that the parents were separated she could not remember what information she gave. She had not given any thought to what would happen if the father attempted to contact the school.
She said that she pays the school fees. The husband tells her he will pay health insurance. The practice was apparently for the mother to pay bills and apply to the father for a refund.
The father had taken the children to a chiropractor and dentist. She said she was aware the father paid premiums for health insurance and for the house and unit. She was aware of the orders for her to maintain property and pay outgoings.
She said they had withdrawn A from school and home schooled him and later homeschooled the others. She said she did the bulk of the teaching and the father was supportive. She denied that the parties had discussed a future prior to production in Sydney. The wife denied there were any discussions as to the husband putting his career on the backburner to advance the wife’s career. The mother did commence a degree. She asserted the father came along and did a lot of talking. She said she did achieve some form of advanced study and the husband did attend to assist her. She said there had been an AVO obtained with no threats of physical violence.
She said there was an assault on B and B had asserted the father had knocked him over. She did not tell B to go to the police.
She is not aware if she is being allocated dividends being paid. She denied there had been any discussions about this. She said the husband took what he wanted at separation. She said she was not aware of any fridge in the unit but a new fridge had been placed in the house. She said she had arranged some computer gear.
The wife said in answer to a question from the husband that she had a good academic memory. She denied speaking to police on an occasion when the children had come home from church and told her what had happened.
She said she advises and cares for the children. She had told C there were things he could not do and he was not to use violence and she had told B to keep out of the father’s way. She said it was not his role to keep B away from the father.
She said she did not suggest separation. She agreed she had moved out of the room. She said she was hesitant to verbalise her desire to be rid of the husband. She agreed that the premises, which include the house and the unit, were about 100metres apart. She said she did not think the children spending overnight and being returned to her at 8am would work; it would be disruptive.
Mr AR was then called in relation to his valuation. When asked about the presentation of the property and lack of maintenance, he was unable to say if the valuation would increase if certain works were carried out but was able to say that had they been done the appeal of the property would be increased. When pressed on the issue of increases in value he said it was difficult to answer but appropriate improvement may have increased the value of the property by $10,000 to $15,000.
Mr Brown then continued his cross examination of the husband.
The husband indicated he had some collectibles of an insignificant value. He again said he had sold his substantial collection for about $2,000. He said the wife must have known he had to sell it and could work it out. He said he did not think he needed to disclose the major sale of collectibles.
He said he had given up on her giving anything accurately. He did not think he was required by the Rules to make a disclosure. He said he has stamps. He said he had received his superannuation. He said she should know that he would sell his superannuation. When asked how the wife would know he would have received $28,000 he said he did not know. It was put to him that he chose not to tell her until the matter was caught. He said he still operates his consultancy which is Duff Consultancy. He does not issue tax invoices, he is not registered for payment of GST. Again he said no invoices were issued, he just records what he receives. He does not know how many business plans he has prepared.
He said he provides verbal quotes. It is not usual practice for him to provide written quotes. It is not usual practice to raise invoices. I found both of these statements highly unbelievable.
At the commencement of the next day, I granted the husband leave to give further short evidence. He said he had spoken to both children and asked them what they wanted. F indicates that he wants to stay overnight before school. G had said that he does not mind staying at the house or unit but he would like to spend some time without F.
As to the husband’s superannuation, he has received monies to which he made contribution throughout the period of the parties’ marriage. The evidence does not enable me to put an exact figure on the amount so received and I am thus unable to carry out any meaningful calculation. However it is again an amount received by the husband with complete disregard to any claim by the wife, and expended by him because he says that it was necessary for him to do so in order to live. He also asserts that as the superannuation was not in existence at the time of the hearing, I do not need take it into account. To my mind, this is a serious error on the husband’s part. I have examined the material before me. Notwithstanding the husband’s assertion that the amount for his superannuation is to be found in his tax returns I am unable to find it in the returns tendered before me which became respectively Exhibits D, M and N. I am satisfied I must recognise in some fashion and proposed to consider it under the relevant subsections of s 75(2).
As to the sale of the collectibles by the husband, I am not prepared to endeavour to apportion the amount received in an effort to add any amount back into the pool of assets. Accordingly I will disregard that amount.
Each party makes some allegation against the other of being in possession of gold bars. The wife seems to assert the husband had a strongbox in which she suspects these items were held. The husband seems to make some similar assertion about the wife having in her control gold bars. There is no evidence that enables me to find or determine that there are any such gold bars, in a position of the either party, such as should be taken into account in these proceedings.
Parties’ Debts
The wife asserts a debt of $9,800 which she used to pay for a trip to Scotland. Notwithstanding this, I am satisfied it is a legitimate loan and I propose to allow it. The husband indeed, in his submissions, seems to agree that this is a debt of the wife’s.
The husband for his part asserts that he has liabilities of $22,524. This figure is not accepted by the wife who asserts that I should take into account a far lesser amount of some $250.
As I understand the husband case the AMEX account has increased by virtue of a need on his part to provide for living expenses. He said this is so because he is in receipt of minimal income.
In the circumstances of this case, I am satisfied that the money expended by means of the AMEX card has been utilised by the husband in that fashion. Accordingly, I propose to allow his debt in the amount of $22,524 as asserted.
Thus the pool of assets will be as follows:
Amount earlier arrived at $595,930
Plus $20,419.50
Subtotal $616,349.50
Less Debts $8,900
$22,524
Subtotal 31,424
Total $584,925,50
Resources
The husband asserts that there is an amount of up to $180,000 to be paid by the wife’s brother to the wife in respect of their mother’s estate. Whilst I am satisfied that the correspondence Exhibit B makes reference to further payments, I cannot make any calculation as to what those payments might be notwithstanding the husband’s attempts to convince me otherwise. Indeed, and in any event, I am satisfied on the evidence of the wife’s brother that the sum of $325,000 is the full amount to be paid in respect of settlement of any claim. Accordingly, and so there is no doubt, I am not satisfied that there is any realistic or proper expectation that any further monies would be received from the wife’s brother.
The husband also makes an assertion that the wife has a resource by means of a borrowing capacity from material indicating that she might be able to obtain a loan. This cannot be treated as a resource. As a matter of common sense, the moment the loan was taken out it would create a liability in the hands of the borrower to repay it. Accordingly I am satisfied that there are no resources that I should take into account in this matter save and except to acknowledge that the wife has a minimal amount of superannuation in her name.
Contribution
The husband contends that I should find that the parties contributed equally or very nearly equally to the asset pool.
The husband received two significant amounts of money during the parties’ marriage and cohabitation. In 1998 on leaving the public service he received an amount that I will accept at $150,000 by way of termination and other benefits. The husband’s own evidence is that he used part of these monies towards the acquisition of the home without specifically detailing how much was actually applied in that fashion. I am prepared however to infer that a proportion of these funds were used either for the acquisition of the home or for the benefit of the family.
In 2001 the husband received an inheritance from the estate of his late mother which I again accept to be $150,000. I am satisfied that these monies were applied to carry out alterations, additions and improvements to the former matrimonial home.
As I understand it, the husband contends that both these sums of money are to be treated as being solely his contribution to the funds and assets of the parties.
When he left the public service, the parties had been married for approximately seventeen years. In respect of the monies so received on that occasion, I am satisfied that the wife could be seen to have made some, not great, contribution to those funds by providing the husband with the amenity of the home particularly as homemaker and, to a lesser extent, as parent.
So far as the inheritance from his late mother is concerned, there is no suggestion as I understand from the part of the wife that she was in any way involved with her mother in law by providing her with assistance or help for example that would in some way indicate that the bequest by the mother was to acknowledge anything done by the wife.
The wife’s major capital contributions, if I can call it that, are the amounts of $50,000 and later $325,000 received by her in respect of her mother’s estate.
It is a significant part of the husband’s case that he made very real contribution in respect of the money that was subsequently received by the wife. The wife was initially excluded from any interest in her mother’s estate. The husband indicates that it was his activity alone which caused his wife’s brother to make any allowance or payment to the wife. I am satisfied that the husband did produce correspondence and placed a caveat against the grant of probate in respect of the mother’s estate. The correspondence relating to this issue appears to be found at Exhibits 1 and 2 and Exhibit B.
That which the husband did clearly assisted the wife in the furtherance of her asserted claim against the estate. However the husband, who cautions that only evidence can be accepted, asks me to make certain assumptions at page 19 of his submissions as to the value of a similar home to that of the deceased.
I am satisfied that while the husband did, on behalf of his wife, engage with her brother to obtain a settlement on behalf of his wife. It cannot be sustained that his help was in fact the only avenue available to her to make a claim and obtain a favourable outcome. The wife could have engaged solicitors. In a case such as this involving an estate and a claim upon an estate her legal costs would in all normal circumstances have been paid out of the estate. I am satisfied that the husband approached the claim against the estate and/or the wife’s brother in his usual fashion. I am satisfied he devoted many, many hours to preparation and drafting in respect of the correspondence that he forwarded. I am satisfied that he worked tirelessly in respect of preparing for negotiations with his brother-in-law. However I am satisfied that whilst he must receive some recognition for his part in resolving the estate issue and notwithstanding the unquestionable amount of work I have already found that he devoted to it, his contribution in this regard is to my mind far less than that which he appears to contend for.
I am satisfied that up until 1998 the husband applied the monies received by him from his income for the benefit of his ever increasing family.
I am satisfied that having left employment, the husband earned very little money from the conduct of his own consulting practice and accordingly was unable to make any significant contribution to the upkeep of the children particularly. Throughout the period of time since the husband left the home, the children (with the exception of A) have all basically lived with the mother. I am aware that he asserts he has paid the amount that he has been administratively assessed for by the Child Support Agency. However in the light of him declaring a nil income for the years covered by the tax returns which came into evidence, I am satisfied that the amount he actually paid was minimal at best.
I am satisfied that upon the acquisition of the former matrimonial home, the wife made significant contributions by virtue of her physical labour to improvements and repairs to the property. As it was not the subject of any serious challenge by the husband then I am satisfied that it is something that the wife can rely upon. It would be remembered the time she was carrying out those renovations she had the care of the children.
I am satisfied the wife made throughout the marriage a very significant contribution as homemaker and parent. Not only did she have the regular duties of a parent but, until 2004, she had the duty of home schooling the children. I am satisfied she did this with very little assistance from the husband. I am satisfied that from time to time he did assist with particular subjects of interest to him with some of the children. However I am satisfied that it was left to the wife to deal with the very large majority of the day-to-day schooling of the children in addition to providing for their needs as a mother. To me, this is a significant matter that requires a weighting of the contribution factors in her favour.
I am satisfied that by way of what might be described as initial capital contributions the husband contributed somewhat less than $300,000, and the wife approximately $375,000. I am satisfied that a proportion of the contributions made by the husband arose from his employment, when for seventeen years of the marriage he had held that employment. Some of the amount he provided was produced by means of termination benefits in respect of cessation of that employment. Accordingly I am satisfied the wife has made an indirect contribution to those monies.
I am satisfied that the husband made a contribution to the amount the wife provided by means of monies received from her brother but not to any overwhelming extent.
To my mind, it is in the areas of homemaker and parent that the vast disparity between the parties is to be observed. I am satisfied that not only did the wife perform well in the role of homemaker and parent in what might be described in a conventional sense of caring for the children; feeding them and generally nurturing them. She undertook homeschooling of the children. I am satisfied this was at the request, if not the insistence, of the father. To my mind, this is a most significant factor in weighing the contributions and overall entitles the wife to recognition for her efforts in this regard.
This is particularly so when it is clear that from 1998 onwards the husband, who resigned voluntarily, was in a far less advantageous financial position than when he had full time paid employment. Accordingly, his capacity to make financial contribution to the needs of the family was severely reduced.
In all the circumstances of this case, I am satisfied that the contribution of the wife should be recognised as being superior to that of the husband. I am satisfied that an adjustment so as to have the wife receive 55% of the assets of the parties and the husband accordingly 45% of those assets is required.
Section 75(2) Factors
I turn then to the matters under s 75(2) that I am required to consider in relation to this matter. The first is s 75(2)(a) and this is in the following terms:
(a) the age and state of health of each of the parties;
The parties are aged respectively 59 and 51. I am not advised that there is any particular physical difficulty or illness affecting either party. Both parties have been diagnosed with difficulties with their mental health. The mother has clearly suffered from depression although this is, on the evidence before me, responding to medication prescribed for her.
The father I have found suffers from personality disorders.
Section 75(2)(b) is in the following terms:
(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;
The property of the parties available for distribution is modest. On the conclusion I have already reached regarding contribution, the wife is entitled to a greater share of those assets than the husband.
The wife has a capacity for work, teaching, and she is presently doing so. I am of the view that it would be possible for the wife to earn somewhat more than she presently does. However, such an increase would in my view be modest.
The husband, I am satisfied, has a significant capacity to earn more income than he presently does, and has done since retiring from the public service.
I am satisfied that the husband has chosen to limit his income so as to not expose himself to payment of significant or even modest child support. The timing of the husband’s leaving the public service is not coincidental. When he believed that the marriage was over, or in significant difficulties, I am satisfied he chose to leave his employment, and thereafter to become self employed.
I am satisfied the records he has kept and which were the subject of cross examination during the hearing before me, have been kept to a minimum standard so as not to truly reflect his income and more importantly his potential to earn income. I am not satisfied however that the assertion of the wife’s counsel that he earns some $275 per hour is correct. I am satisfied that this charge is per job as the husband describes it.
On the determination I have made as to the distribution, the husband will fare worse than the wife. I am satisfied that the difficulties with mental health that have beset both parties will not significantly, if at all, impact on their capacity to earn income. Indeed the very aspects of the husband’s personality to which I have made reference earlier in these reasons for judgment, may well serve as Doctor indicated to make him a meticulous and careful worker which would in turn enable him to produce greater income than he chooses to earn at the moment.
Section 75(2)(c) is in the following terms:
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
Pursuant to the orders I propose to make the wife will have the major responsibility for the children as they will spend most of their time with her.
In regards to s 75(2)(d), there are no matters under this section I would propose to take into account.
Section 75(2)(e) is in the following terms:
(d)the responsibilities of either party to support any other person;
Neither party has responsibility of support to another person in the strict sense. However I am satisfied the mother is providing accommodation for some of the older children without any real assistance or support from the husband.
Section 75(2)(f) is in the following terms:
(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;
The mother receives benefits from the Commonwealth. She has a modest amount of superannuation. The father has had the use of his superannuation which he says has been applied to living expenses.
Section 75(2)(g) is in the following terms:
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
I am satisfied that both parties have always lived frugally. When the parties were together, they lived in a very small and cramped dwelling with the children in one bedroom until the former matrimonial home was purchased. Thereafter the parties continued a frugal standard of living.
Since separation, and particularly since physical separation, each of the parties has lived at a very modest standard. I do not believe sections (g) and (h) have relevance to this particular case.
I then turn to s 75(2)(ha). The subsection is in the following terms:
(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;
The husband makes reference to this subsection in his submissions stating as I understand it that unless he is given a significant part of the parties’ assets, he will be unable to fulfil his obligations to creditors. To my mind, this is not what this subsection intends to deal with.
Section 75(2)(k) is in the following terms:
(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;
The marriage was a long one. During it, the wife worked for a short period but then concentrated her efforts, and in my view very considerable efforts, in home schooling the children.
Neither party is cohabitating with any other person.
Section 75(2)(n) is in the following terms:
(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;
I have already made reference to the effect that my findings as to contributions will have as to what each party is entitled to receive.
I am satisfied that the father has paid child support as assessed against him. However I am satisfied that the level of child support has always been extremely modest.
As to any other factors, I am satisfied that the father has not been fully frank with the Court as to his present earnings and more particularly as to his capacity to earn income. I am satisfied that he has maintained records at a minimal level so his business venture could not be properly examined and evaluated. I am satisfied that he has done this deliberately, as I am satisfied that he has chosen to leave reasonably remunerated employment and become self employed so as to minimise his exposure to child support. In my view, this requires some adjustment in the wife’s favour.
Taking into account the major factors which I find to be the responsibility of the wife to care for the younger children of the marriage, the fact that the husband is providing minimal child support, the fact the husband has a capacity to earn income to a significantly greater level than he chooses to exercise I am satisfied that a significant adjustment in the wife’s favour is called for. I also take into account the fact the husband was able to take and use the whole of his superannuation without any proper accounting to the wife. No doubt the superannuation was earned over his total years of service in the public service. However it is clear that from the date of marriage until 1998 the wife demonstrably made some contribution to that superannuation if for no other reason than forgoing as income to the family the husband’s contributions to build up his superannuation.
It is put to me by the wife’s counsel that I should also have regard to cases such as Black & Kellner[17] and Weir & Weir[18] and that I should find the husband has deliberately misled the Court and the wife as to his true financial position, particularly in respect of his capacity to earn income from his consulting business. It is thus put that I should make an adjustment in the wife’s favour.
[17] (1992) FLC 92-287
[18] (1993) FLC 92-338
Their Honours of the Full Court in Weir supra found that once it had been established that there has been a deliberate non-disclosure the Court should not be unduly cautious about making findings in favour of an innocent party.
I have said all I wish to say about the husband’s actions in this regard. I am satisfied that there is no element of deliberateness and intent on the husband’s part in the manner in which he had dealt with his income and in particularly his capacity to earn an income. I am satisfied that an adjustment in the wife’s favour is warranted.
Their Honours of the Full Court in Clauson[19] made reference to a tendency to assess s 75(2) factors in percentage terms without considering its real impact. Further their Honours went on to say that it appears almost to be inevitable that s 75(2) factors will be assessed and arranged between 10% and 20%.
[19] (1995) FLC 92-595
I am mindful that the pool of assets in this case taking into account the emotional amount added back is the modest sum of $584,925.50. Accordingly, it can be seen that 10% of this amount is $58,492.55. This is indeed in real money terms a modest amount.
I must take all these matters into account. In accordance with the distinction of Tomasetti[20] I must have regard to s 75(2) factors as a whole without endeavouring to specify or allocate specific sums or percentages under particular headings.
[20] (2000) FLC 93-023.
In all the circumstances of this case and having regard to the matters and the decisions I have referred to, I have come to the inescapable conclusion that the adjustment in favour of the wife must be at the upper end of the range. I am satisfied that the appropriate adjustment is 17.5%. Thus the wife’s entitlement on a percentage basis to the property of the parties available for distribution is 72.5% and the husband’s entitlement thus 27.5%.
How then do I achieve this result?
I have determined the pool of assets, available to the parties is a modest $584,925.50. 72.5% of that figure produces a result of $424,070.98 which I will round to $424,071. The wife has in her possession;-
·her AMP shares at $1282;
·her HDG shares at $203;
·her AMP Insurance at $1800;
·her equipment at $3650; and
·her contents at $2000.
Together these produce a figure of $8,935.
However the wife has a debt of $8,900. Deducting one from the other, the wife has in her possession property to the net value of $35.
When one takes $35 from the figure of $424,070.98, a figure of $424,035.98 is produced which I will round at $424,035.00
This then is her entitlement, with the amount she has received to achieve her entitlement.
The wife seeks to acquire the former matrimonial home. I have included the home as an asset to the value of $580,000. Thus to acquire the home, the wife would need to pay to the husband the difference between the value of the asset and her net entitlement. The figures then are these:
Value of Home $580,000.00
Less $424,035.98
Total $155,964.02
I will round this total to $155,964.00. This is the amount that I order the wife to pay to the husband within three months of this date. I am satisfied that in all the circumstances three months is a sufficient time for the wife to take proper and timely steps to arrange finance, with the help of her older children if necessary so as to payout the husband.
However in the event that the amount is not paid within the time of three months, then the only method in which the parties’ respective entitlements can be realised is for that property to be sold and the proceeds divided to reflect the entitlements that I have determined.
This would mean that if the property was sold, the following figure would apply:
Value of Home $580,000
Wife’s Entitlement $424,035.98
A percentage of that sum is 73.10%, which I would round at 73%. Thus in the event that the property needed to be sold the proceeds would be distributed 73% as to the wife and 27% as to the husband.
I must comment, in accordance with the fourth step to which I have earlier made reference, step back and examine the orders that I propose to make, particularly having regard to the amounts and percentages involved to ascertain that they are all the circumstances just and equitable.
The result of my orders, whether there be a buy out by the wife or the sale of the property is contemplated, are below. The wife would have:
Value of Home $580,000.00
Plus her personalty $8,935
Subtotal 588,935.00
Less Debt 8,900
Subtotal 580,003.50
Less Payment to Husband $155,964.02
Total $524,070.98
$524,070.98 is the wife’s percentage entitlement.
In the event that the property was to be sold, she would receive from the sale price for the purpose of calculation her entitlement of $424,035.98 plus her personalty at $8,935 to produce a figure of $432,970.98. She would be liable for her debt to Mrs GY at $8,900. This would again effectively put in her hands the sum of $424,070.98.
So far as the husband is concerned if the wife were to buy him out he would receive a sum of $155,964.02. In addition he already has in his possession his contents of $6,500, his bank account at $495 and the share value added back. The husband will receive a figure of $183,378.52, from which is to be deducted his debt of $22,524 thus producing his entitlement of $160,854.02. This is equivalent to the husband’s entitlement arrived at by percentages.
In the event that the property would be sold, the amount the husband would receive will not change.
I am clearly of the view that the result I have reached is proper, just and equitable. It recognises the difference in the contributions of the parties and further difference in their future needs factors. It enables the wife to endeavour to acquire the former matrimonial home. However clearly I would provide that if she can not to do this within a proper time then the property must be sold and the proceeds divided. This is in all the circumstances a just and equitable result and I so find.
The orders that I then make are set out to the commencement of this judgment.
I certify that the preceding six-hundred-and-ten (610) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on the nineteenth day of October 2010.
Associate:
Date: 19 October 2010
Key Legal Topics
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Family Law
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Property Law
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