ELLARD & ELLARD
[2018] FCCA 1539
•18 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLARD & ELLARD | [2018] FCCA 1539 |
| Catchwords: PROPERTY – Just and equitable settlement – whether the husband owes his brother $90,000. |
| Legislation: Family Law Act 1975, ss.75, 64B, 60CA, 60CC, 79 |
| Cases cited: Mazorski v Albright (2008) 37 FLR 518 Tait & Dinsmore [2007] FamCA 1383 Stanford v Stanford (2012) FLC 93-518 |
| Applicant: | MR ELLARD |
| Respondent: | MS ELLARD |
| File Number: | DGC 657 of 2015 |
| Judgment of: | Judge Small |
| Hearing dates: | 1, 2, 3 and 16 November 2017 and 21 December 2017 |
| Date of Last Submission: | 21 December 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 18 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkinson |
| Solicitors for the Applicant: | Duffy & Simon |
| Counsel for the Respondent: | Self-Represented |
| Solicitors for the Respondent: | Self-Represented |
| Counsel for the Independent Children's Lawyer: | Mr S. Taghdir |
| Solicitors for the Independent Children's Lawyer: | Taft Lawyers |
ORDERS
Parenting Orders
All previous parenting orders in relation to the children [X] born 2009 and [Y] born 2010 (“the children”) are hereby discharged.
The parents shall have equal shared parental responsibility for making major decisions about the long term care, welfare and development of the children and each shall have day-to-day responsibility for the children when they are in their respective care.
The children shall live with the father.
The children shall spend time and communicate with the mother:
(a)during school terms on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday commencing on 22 June 2018;
(b)for half of each school term holiday period by agreement between the parties in writing and failing agreement, from the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in odd-numbered years, and from 6:00 p.m. on the second Saturday to the commencement of school on the first day of the next school term in even-numbered years;
(c)for half of the long summer school holidays by agreement and failing agreement with the mother for the first half in 2018-2019 and in each alternate year thereafter and the second half in 2019-2020 and in each alternate year thereafter;
(d)for Christmas by agreement between the parties and failing agreement, from 4:00 p.m. on Christmas Eve to 12 noon on Christmas Day in even-numbered years and from 12 noon on Christmas Day to 4:00 p.m. on Boxing Day in odd-numbered years
(e)on the weekend of Mother’s Day each year from 6:00 p.m. on the Saturday evening to the commencement of school on the Monday if the children would not normally be spending that weekend with the mother, and the mother’s time with the children shall suspend, if necessary, from 6:00 p.m. on the evening before Father’s Day each year if the children would otherwise be spending that weekend with the mother pursuant to these orders.
(f)On each of the children’s birthdays from after school to 7:30 p.m. should the birthday fall on a school day in even-numbered years, and from after school on the day prior to the birthday to the commencement of school or 10:00 a.m. on the birthday in odd-numbered years, and, should the birthday not fall on a school day, for four hours by agreement and failing agreement from 10:00 a.m. to 2:00 p.m. in even-numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;
(g)On the mother’s birthday each year from after school to 7:30 p.m. should the birthday fall on a school day, and, should the birthday not fall on a school day, for four hours by agreement and failing agreement from 10:00 a.m. to 2:00 p.m. in even-numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years; and the mother’s time shall suspend on the father’s birthday each year for four hours by agreement should it fall on a non-school day and failing agreement from 10:00 a.m. to 2:00 p.m. in even-numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;
(h)By telephone, Facetime, Skype or other electronic means:
(i)at any time at the instigation of the children or either of them and the father shall facilitate that time by providing the children or either of them with a charged and working telephone, tablet or computer and shall place the call for them until such time as they are able to place the call themselves;
(ii)at the mother’s instigation on two occasions per week by agreement between the parties in writing and failing agreement between 6:00 p.m. and 6:30 p.m. on each Tuesday and Friday that the children are not in the mother’s care, with the mother to place the call and the father shall ensure that the children have access to a charged and working telephone, tablet or computer and that they are available to take the call;
(iii)at other times by agreement between the parties in writing;
(i)At other times by agreement between the parties from time to time.
The father shall ensure that the children’s school makes available to the mother, at her cost if any, all school reports, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by the children or either of them and the mother shall be at liberty to attend parent teacher interviews and all sporting or cultural events usually attended by parents.
The parties shall each inform the other of any serious illness or injury suffered by the children or either of them which requires hospitalisation or specialist treatment while they are in their respective care, and they shall authorise any treating medical or allied practitioners who are caring for the children or either of them to speak to the other about the child’s treatment.
The parties and their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the children and from permitting any other person to do so;
(b)discussing these proceedings with or in the presence or hearing of the children (save to explain any changes in their living circumstances to them) and from permitting any other person to do so;
(c)using any form of physical discipline on the children or either of them; and
(d)allowing the children to read, or have read to them, any portion of the Court’s Reasons for Judgment in this matter.
Property Orders
Within 42 days of the date of these orders (“the due date”), the husband shall pay to the wife the sum of $14,082 (fourteen thousand and eighty two dollars) (“the payment”).
Contemporaneously with the payment, the wife shall provide to the husband a signed and registerable Withdrawal of Caveat in relation to the caveat she holds over the real property situate at and known as Property A (“the real property”) and the husband shall retain the real property for his own benefit absolutely.
In the event that the payment is not made by the due date, the husband shall do all such acts and things and sign all such documents as may be necessary to place the real property on the market for sale (“the sale”), and the proceeds of the sale shall be applied as follows:
(a)first to pay all costs and commissions of the sale;
(b)second to discharge any registered encumbrance over the real property;
(c)third so much of the payment as is outstanding to the wife together with interest at the rate of 8.5% per annum from the due date to the date of payment; and
(d)the remainder to the husband.
Pending the payment, or completion of the sale, the husband shall have right of occupation of the real property and shall be responsible for all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b)monies standing to the credit of the parties in any joint bank account shall be divided between the parties in the proportion of 70 per cent to the husband and 30 per cent to the wife;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)each party forgoes any claim they may have to any inheritances or superannuation to which the other party is entitled either presently or in the future; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Ellard & Ellard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 657 of 2015
| MR ELLARD |
Applicant
And
| MS ELLARD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting and property matter between Mr Ellard (“Mr Ellard” or “the father” or “the husband”) and Ms Ellard (“Ms Ellard” or “the mother” or “the wife”).
The children of the marriage are [X] born 2009 (“[X]”) and [Y] born 2010 (“[Y]”) (collectively “the children”).
The children currently live with the father and have done so for the majority of the time since the parties separated in early 2015.
The mother seeks orders that the children live with her and spend substantial and significant time with the father. She also seeks a just and equitable property settlement.
The father seeks orders that the children remain living with him and spend significant and substantial time with the mother. Mr Ellard also seeks orders for him to retain the matrimonial home in Property A, for him to pay the mother a lump sum payment and for both parties to otherwise retain all property currently in their possession.
The issues to be decided in this case are:
PARENTING
A. Whether Ms Ellard suffers from any mental health issues which would affect her ability to care for the children
B. Where the children should live
C. How much time the children should spend with their non-resident parent
PROPERTY
D. Whether it is just and equitable to alter the parties’ property interests
E. If it is just and equitable, what are the property interests of the parties and what is their value?
F. What were the parties’ contributions to the property?
G. Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
H. In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
Background
Mr Ellard was born on 1984 in (country omitted) and is therefore 33 years old. He migrated to Australia in 2003.
Ms Ellard was born on 1987 in (country omitted) and is therefore 30 years old. She migrated to Australia after marrying Mr Ellard in (country omitted) in 2008.
The parties were married in (country omitted) on 2008 following a very short relationship. They commenced living together in Australia on 2008 after the mother migrated to Australia.
The parties separated in February or March 2015 when the mother left the family home. Ms Ellard says that she was forced to leave the family home by the husband. Mr Ellard denies this and says that she chose to leave to move in with her new partner Mr B (“Mr B”).
The children remained in the family home in the father’s care at that time and he obtained parenting orders placing them in his care in March 2015. Those orders were signed by the mother and presented to the Family Court of Australia as final consent orders. It is the mother’s evidence that she felt under duress on the day that she signed the orders, and that she had not read them in full before doing so.
In November 2015 the mother moved back into the matrimonial home and the parties lived separately under the same roof until a violent incident on 29 January 2016 when the father was removed by police. As a result of this incident, the father was charged and on 10 March 2016 pleaded guilty to sexual assault and intentionally damaging property and was sentenced to an 18 month Community Corrections Order with 100 hours of community work.
On 22 February 2016 the father returned to the family home as a result of a variation to the Intervention Order made on 29 January 2016 by consent between the parties. The parties continued to live together separately under the same roof.
On 22 July 2016 the Intervention Order was varied again on the application of the mother and the father was again removed from the family home by police.
The children then lived with the mother in the family home until 1 August 2016 when the father picked them up from school and took them home with him after showing the parenting orders made on 13 March 2015 to the school.
He and the children lived with his sister until Orders made by this Court on 5 October 2016 provided for Ms Ellard to vacate the property and Mr Ellard and the children to return.
The children have resided with the father and the parties have lived in separate accommodation since this time.
The mother has spent time with the children either by agreement between the parties or pursuant to court orders since that time.
The parties were divorced on 21 September 2016.
Mr Ellard currently lives in the former family home in Property A with the children and his brother. He owns a business known as (business omitted) and is in receipt of a parenting payment and Family Tax Benefits from Centrelink.
Ms Ellard rents a property in Region A. She says that she intends to find a property closer to the children’s school so that they can live with her. She is currently employed as a (occupation omitted) and works according to a monthly roster.
Procedural History
This matter commenced with Mr Ellard filing an Initiating Application and Financial Statement on 27 July 2016 seeking property orders only.
The mother filed a Response, Affidavit in Support and Financial Statement on 2 September 2016. In her Response she sought both parenting and property orders.
The matter first came before me in the Duty List on 3 October 2016. On this day I ordered the parties to attend a s.11F Child Inclusive Conference on 5 October 2016 with an oral report to be made on that day. I also ordered the preparation of a Family Report, for the parties to attend a Conciliation Conference with a Registrar, and adjourned the matter for Mention on 1 February 2017, and for Final Hearing on 1 November 2017 for 2 days.
The matter came before me again for Mention on 5 October 2016 following the Child Inclusive Conference. The parties were able to reach agreement in relation to interim parenting and property arrangements and I made orders by consent. I also made an order for the appointment of an Independent Children’s Lawyer.
The parties attended a Conciliation Conference on 27 January 2017, however were unable to reach final agreement in relation to property matters at that time.
The matter came before me for Mention on 1 February 2017. An Application in a Case filed by the father on 2 December 2016 and the mother’s Response to that Application in a Case filed on 27 January 2017 were withdrawn by consent on that day.
Final Hearing commenced on 1 November 2017 and continued on 2 & 3 November 2017. The father and the Independent Children’s Lawyer were represented by counsel and the mother was self-represented.
On 3 November 2017 I made an order granting leave to the mother to withdraw her Contravention Application filed 17 November 2016. I adjourned the matter part heard for a further 2 days on 16 November 2017 and 20 December 2017.
On 16 November 2017 the Final Hearing continued. I then adjourned the matter to 21 December 2017 in Melbourne and vacated the adjourned date of 20 December 2017.
Witnesses at trial included the mother, the father, the father’s brother Mr J and the Family Report writer Ms J (“Ms J”).
Following the conclusion of evidence and submissions on 21 December 2017, I reserved my decision.
Issues and Evidence
PARENTING ISSUES
Issue A. Whether Ms Ellard suffers from any mental health issues which would affect her ability to care for the children
It is the case of the father and the Independent Children’s Lawyer that the mother lives with mental health issues which make it inappropriate for her to care for the children on a full time basis.
It is not disputed between the parties that the mother was working as a (occupation omitted) in a (employer omitted) from about 2014 to 2015. The father deposes that the mother never told him about that employment and that he only discovered that fact after the parties separated in late January 2015.
It is the husband’s evidence that the wife spent long periods of time away from the family at night at about that time and that he did not know where she was working, but believed that she was employed at the “(employer omitted)” as a result of something that she had said.
The wife’s evidence is that it was the husband who proposed that she work at a (employer omitted) in Region B, and indeed that he had “manipulated” her into agreeing to engage in that work because the family needed more income and the husband was not working.
Both parties held to that evidence at trial, and I simply cannot say who is telling the truth, but it would be unusual, to say the least, for a mother of two small children to suddenly decide to engage in (omitted) work on her own instigation when she had previously obtained employment quite easily in other areas.
(employment omitted) is perfectly legal and (omitted) employment is regulated and I take no negative inference against the mother’s credit or character because she undertook that work, whether it was of her own volition or not.
In any case, the evidence is that Ms Ellard ceased to engage in that work by early 2015 when she began her personal relationship with Mr B.
She says that she moved in to live with Mr B, at first at his parents’ home and then in a small apartment above the (business omitted) they were running.
She says that she returned to the family home in November 2015 because the (business omitted) business had failed, her relationship with Mr B had foundered, and she had nowhere else to go.
It is not in dispute that she asked Mr Ellard if she could return to the family home and that he agreed to her request. The parties thereafter lived separated in the family home until they separated on a final basis in mid-2016.
It is the husband’s evidence that after the interim hearing in this Court on 5 October 2016, the wife approached him and his interpreter and spoke to him in (language omitted) saying “words to the effect of”:
(a)I want to kill you;
(b)I want to put a bomb in your house so the house falls on your head;
(c)watch your back;
(d)stay next to her (referencing the interpreter that was with her on that day) so she can protect you.
The husband says that the wife spoke those words aggressively and that she also threatened and spoke aggressively to his interpreter.
Mr Ellard deposes that he “was concerned that the mother would carry out the threats and that the children and I were at risk”, and that he reported those comments to the police.
He obtained an Intervention Order against the wife on the basis of that complaint and the children were included on that Order as Affected Family Members (“AFMs”).
As a result, the mother’s time with children was suspended, and the husband decided he would not provide the children for time with their mother until she had undergone the psychiatric assessment also ordered by consent on 5 October 2016.
It was only after police attended at the children’s school on 25 November 2016 after an incident between the parties that the children’s time with the wife recommenced pursuant to the 5 October 2016 orders.
That incident occurred on the day after mutual Intervention Orders, which did not name the children as AFMs, had been made by consent in the Magistrates Court of Victoria at Dandenong.
It is the husband’s evidence that the wife is a volatile woman who has attacked him on occasion and who verbally abuses both him and the children when she is stressed and upset. He says that she is not capable of caring for the children full time.
The wife denies suffering from any mental health condition although she does not deny telling the husband “I hope a missile blows up your head” and “God is watching” after the interim hearing in this Court on 5 October 2016. She denies telling him that she wanted to kill him. She says she was angry and frustrated at the husband for not telling the Family Consultant the truth about their relationship.
Ms Ellard says her demeanour and attitude are the result of the abuse she claims to have suffered at the hands of her husband, and I note that the history of this matter includes several Intervention Orders being made against the husband.
The expert evidence
The s11F counsellor who saw the family on 5 October 2016 describes the wife as having “presented as very anxious and upset throughout her interview and her responses at times lacked coherency in narrative. She struggled to remain focussed on the subject at hand and frequently offered information not relevant to the question being asked, or she responded with a question. Ms Ellard’s anxiety appeared to influence her speech which was at times almost frantic. Following conclusion of interviews and upon being informed of the recommendations Ms Ellard became very upset and made attempts to approach and confront both the family consultant and later the father, in the Court reception. On both of these occasions she was forcibly restrained by her support people. Ms Ellard’s inability to contain herself within the Court environment raises significant concerns as to her capacity to act appropriately in the children’s presence and this will remain a (sic)”
Dr M’s psychiatric report in relation to the wife was annexed to his Affidavit affirmed on 6 June 2017 and filed on 15 June 2017.
In that report, Dr M states that Ms Ellard told him, inter alia that:
· like her mother, she is naive, shy and eager to please
· like her father, she has a tendency to excessively worry, to be stubborn and a perfectionist, and to have a temper with a short fuse, although she is “learning to keep it down”
· she has never drunk alcohol or consumed illicit drugs although she does smoke cigarettes
· at the time she had engaged in comfort eating, had feelings of emptiness, an inability to be alone and jealousy in her relationship with Mr Ellard and occasional temper tantrums
· she denied any impulsive spending, gambling, driving, shoplifting, daydreaming, self-harm, suicidal thoughts or stress-related paranoia.
Dr M describes her presentation as follows:
Ms Ellard presented casually dressed and was clearly shy, at times emotional and at times mildly histrionic. She was co-operative throughout the interview with good eye contact. No psycho motor abnormalities were noted. She spoke spontaneously. Her speech was sometimes over inclusive but coherent, with normal rate, volume, tone and rhythm. Her affect was variable, at times becoming tearful. Her emotions were reactive and well communicated. Her thoughts string was normal with no overt thought disorder, nor with any suggestion she was responding to internal stimuli.
Dr M diagnosed Ms Ellard as suffering from an Anxiety Disorder with features of Social and Generalised Anxiety and with Borderline and Obsessive Compulsive Personality traits.
Significantly, Dr M says that in his opinion, while the combination of Ms Ellard’s anxiety and personality traits “leaves her open to impulsive behaviours”, both issues are “amenable to treatment”. He suggested that she might benefit from taking an antidepressant and stated that she would certainly benefit from working with a clinical psychologist to acquire strategies to manage her anxiety and emotions.
Dr M was not required to give evidence at trial, so his report remains both unchallenged and untested.
In her family report dated 27 October 2017, Ms J (“Ms J”) describes the wife’s presentation thus:
28. […] Ms Ellard (sic) was friendly and articulated her views well when she was emotionally even. She presented as an intelligent person, but due to her high emotionality, she gave a disjointed account of events and was often distracted in the process of the interview. She was quite angry with the father and often addressed him as ‘the filthy pig.’ She remarked several times that the professionals failed to understand the ‘wickedness’ of the father as she could, because she had endured many years of suffering in her relationship with him.
Later in her report, at paragraphs 38 and 39, Ms J notes that:
It was hard to know where Ms Ellard (sic) was in relation to the father, as she stated that she ‘hated the pig and could not stand him’ and at the same time, she reported that when he visited her, they went out together with the children, considering doing a business together (sic) and if that is achieved they would then build a house together etc.
It was also noted that when she was confronted about her behaviour, the mother eventually turned the attention (sic) to the alleged failings of the father or emphasised the victimisation of her by Mr Ellard (sic) or stop the conversation (sic) stating, ‘I have had enough of it all.’
At paragraph 54 of her report, Ms J states:
Ms Ellard (sic) was a poor historian and she was unable to explain issues in sequence and appeared to have a disorganised thinking pattern. Some of her difficulties in this area were due to intense emotions. Ms Ellard (sic) at times was defensive and diverting from the topic at hand. When challenging questions were asked, Ms Ellard (sic) focused on father’s apparent misdeeds and she was unable to accept responsibility for her own actions/decisions. There were several inconsistencies in her narrative about how the life events that took place before and after separation from Mr Ellard (sic).
Ms J reports an incident occurring after her interview with the wife which causes the court some concern. The sequence of events which led to the preparation of the family report is that the wife and the children were interviewed on 18 September 2017. An interview with the husband did not take place on that day as his interpreter had failed to attend, although the children were observed in the company of each parent.
Ms J conducted an interview with Mr Ellard without an interpreter on 27 September 2017 and a further interview with an interpreter on 23 October 2017.
At paragraph 61 of her report, Ms J states as follows, the conversation between her and Mr Ellard taking place on either 27 September or 23 October 2017:
Mr Ellard explained that the mother phoned [X] some days after the report interview to find out about [X]’s expressed views. After coming to know that [X] did not wish to live with her, the mother had apparently screamed at her daughter over the phone stating to [X] that she did not love her and did not want her at home. [X] had responded to her mother saying that she ‘did not care to go to her mother’s home in any case and her mother was stupid.’ The father played the recorded message for the writer to hear that conversation and the writer believe (sic) that the father was stating the factual situation.
In the recommendations seen at the conclusion of the family report, Ms J “strongly recommended that the mother seeks one-to-one counselling with an agency such as ‘lifeworks’ (sic) to come to terms with her current situation and also learn to manage her emotions appropriately”.
Ms J gave evidence at trial on 21 December 2017 and was cross-examined by counsel for the Independent Children’s Lawyer, counsel for the husband, and by Ms Ellard.
Ms J had only that morning read the report of Dr M, and was asked whether the recommendations in her family report would have been different if she had read Dr M’s psychiatric assessment of the wife before she had prepared her family report. Ms J stated clearly that none of her conclusions or recommendations would have changed had she read the psychiatric assessment prior to preparing a family report.
She described the wife’s presentation at interview as volatile, unpredictable and inconsistent, and repeated her concern about the telephone call which took place between the wife and [X] after she had interviewed the children.
It was Ms J’s evidence that until the mother is able to control her outbursts of anger, she would be unable to amend her recommendations that the children should remain living with the father.
She said:
I don’t believe Ms Ellard would use discipline to hurt the children. It is her way of disciplining children. I don’t think, you know, she would harm them by hitting that hard or anything but my concern about that is that her ability to control her anger (sic). Like, if it was just a smack too, say, something, although it is not acceptable, there are a lot of parents who believe that that keeps the children functioning well. But that’s not the issue here. The issue is that what happens if she just – like, she explodes sometimes and she is very fiery in nature and what if she loses control and when stresses are too much and children are there and if she has the way of disciplining them physically, so it may not be just physical discipline. It may be that anger coming through. Then I will have concerns about it…… It’s not good for any child to be disciplined that way, but in order to discipline a child in a proper way, in a reasonable way with – people need patience, time, and a commitment to making children understand what they’re doing wrong and whether she has all of that, I’m not sure.
Under cross-examination by counsel for the husband, Ms J said that Dr M’s diagnosis in relation to Ms Ellard’s anxiety disorder with borderline and obsessive compulsive personality traits was consistent with her observation of Ms Ellard at interview.
Ms J further agreed with Dr M’s opinion that Ms Ellard’s condition leaves her open to impulsive behaviours.
It was her evidence that Ms Ellard would need to work very hard in the therapeutic sense in order to correct that vulnerability and Ms J’s opinion was that “only time can tell” whether Ms Ellard is capable of such major change.
Under cross-examination by Ms Ellard, Ms J faced questions about not only her opinions about Ms Ellard’s mental health, but about what had actually been said during her interview with Ms Ellard.
In that context the following exchange took place:
Ms Ellard: I’m just asking her if she thinks I’ve got a lot of anger and how did she work it out. Okay.
Ms J: Yes, I think you have got a lot of unresolved anger about a lot of things in your life.
Ms Ellard. How did I show it?
Ms J: In your sentences, what you say – calling your husband are, you know, a filthy fucking pig, you know, so 10 times--- when somebody talks like that they are angry.
Ms Ellard: So do you recall that I said filthy pig to you?
Ms J: Yes.
Ms Ellard: This is what you wrote in your report?
Ms J: Yes.
Ms Ellard: Do you recall 100 per cent that I said that word filthy pig?
Ms J: Many times, many times.
Ms Ellard then became voluble and agitated, stating several times that she had never used the words “filthy pig”.
When asked for an example of when Ms Ellard had “exploded and lost control” , Ms J gave the example of the phone call between the wife and [X], the recording of which had been provided to her by Mr Ellard. Her description of Ms Ellard’s behaviour during that phone call was “you just go off”.
After further questions about Ms J’s perception of Ms Ellard’s presentation at the interview, the following exchange took place:
Ms Ellard: I do know things sometimes and I felt from the way she was talking to me that she is not into listening. Some people listen from their mouth, some people listen from the ears and I knew that she is not connecting. So I thought, okay, like, she said I exploded – I did not explode, I just cut you off because I knew what you were thinking already.
Ms J: No, I asked you some confronting questions and you probably guessed that I’m not going to – yes ---
Ms Ellard: Yes, I didn’t want to explain because I knew what you felt back then.
And soon thereafter:
Ms Ellard: I said that I knew back then while I was talking to you from the first few words that you were going to require Mr Ellard to have my kids.
Her Honour: So what?
Ms Ellard: No, it means that – my God – that’s why she said I explode and when she explained about the exploding she said you said, it’s okay – it’s okay, when I said to her I don’t want to talk about this. I did that on purpose because I knew she was not going to listen. I knew that she had really made up her mind. And there is no point of telling her about anything else.
Her Honour : Okay.
Ms Ellard That is why I cut her off.
Her Honour: All right.
Ms Ellard: But mentally, I cut her off.
Her Honour: All right. You’ve said that now.
Ms Ellard: And this is – sorry – this is what I explained.
Her Honour: Move on, please.
Under further questioning, Ms J conceded that someone in Ms Ellard’s position, who had migrated to Australia on her own to live with her husband at a young age, had two children, and had been abused, might become angry and upset if she had no outlet for her feelings about her situation. She further conceded that if indeed Ms Ellard had been physically and/or emotionally abused by the husband, it would be reasonable for her to have been “angry or upset or sad or don’t know what to do or frustrated”.
A little later, the following exchange took place:
Ms Ellard: Okay. And you said about me that I think that everything I say is right, and when it doesn’t go my way I will just try to get out of it; is that true?
Ms J: Yes. I have that opinion of you. Yes.
Ms Ellard So you think like this of me right now?
Ms J: If you agree with somebody, then you’re happy. If they are not – if they confront you, if they pinpoint something in you, you are not all that happy. You don’t say readily, “Okay, I will think about it.” You will say, “No that’s not true. You were wrong.”
Ms Ellard asked Ms J why she thought Ms Ellard had not read the consent orders that she signed in March 2015 which provided for the children to live with Mr Ellard. Ms J answered that she thought it was because Ms Ellard was impulsive, that she had probably been angry, and that she had simply wanted to sign the documents and leave.
When asked again why she thought Ms Ellard had not read the document before signing it, Ms J said:
But my understanding was that you both came to a consent order, and then you became homeless, whatever, all of that followed later. At the time of signing you had just separated, you wanted a relationship with your boss, and you wanted to go, and it suited you, and you signed, and you went. And if you didn’t read and just went, you know, that would probably be because of your personality, or if you have read – if you didn’t read it at all, given that you are the smart one, you read English, you are not like somebody who came from a village and just signed the paper, and you are very astute, you should have known that. If you just did it, it’s out of impulse, which is again one of the worry that I have you as a parent, that you do lot of impulsive things without thinking through the consequences. It comes back to the same thing.
Decision: Issue A
Ms Ellard’s presentation at trial was consistent with the diagnosis of Dr M as supported by Ms J.
She was voluble, agitated, anxious, and argumentative, and there were several occasions on which I had to remind her not to speak over other people, including me.
Her ability to contain her emotions was limited, and she was determined to give the Court information from the bar table which she had not filed in affidavit form.
Her manner was chaotic and her affect excitable throughout the trial.
Despite all of that, Ms Ellard impressed as an intelligent and articulate woman who loves her children dearly, and who simply wishes to have them back in her care on a full-time basis.
However, both in giving her own evidence and in questioning other witnesses, she did not impress as a woman able to put her children’s welfare ahead of her own wishes and interests, and she displayed little insight into the effect of her behaviour on [X] and [Y].
On the basis of all the above evidence, I find that the wife does suffer from the mental health conditions diagnosed by Dr M, and that those conditions currently affect her capacity to care for the children at an optimal level for long periods of time.
That does not mean that she is not able to care for the children at all.
Issue B. Where the children should live
An order about where a child should live is a parenting order under s.64B of the Family Law Act 1975 (Cth) (“the Act”).
The law about parenting orders is found in Part VII of the Act.
The objects and principles underlying Part VII are set out in s.60B and I set those objects and principles out here for the benefit of the parties:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA makes clear that when a court is making a parenting order, its “paramount consideration” must be the child’s best interests.
Section 60CC then sets out 16 separate factors that the court must consider when it is considering what orders to make in the child’s best interests, and I will address each of these factors in turn.
There are two “primary considerations” set out in s60CC(2) and they are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The question of what constitutes a “meaningful relationship” has been discussed in many cases before this court and the Family Court of Australia.
In Mazorski v Albright (2008) 37 FLR 518 Brown J said, at paragraph 26:
[…] a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In other words, it is not the amount of time that a parent spends with a child that makes it “meaningful” – it is the quality of that time.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
There is ample evidence, in affidavits sworn by the husband and the wife, in the family report, and in oral evidence given at trial, that the children have a meaningful relationship with their father in most of the terms set out by Brown J and Cronin J.
However, to the extent to which he has admitted to committing acts of family violence in the children’s presence, he has not provided a good example to the children about self-discipline, nor about the role of the parent.
The mother believes that her relationship with the children is meaningful because she loves them and they love her, and the evidence before the court is certainly that the children love their mother, and she them.
However, the evidence is that in the immediate aftermath of the parties’ separation in February 2015, she visited the family home to see the children irregularly and not particularly frequently. That inconsistency in the time Ms Ellard has spent with [X] and [Y] since the parties’ initial separation in February 2015 cannot help but have affected the meaningfulness of that relationship.
In addition, it was clear from her evidence at trial that her work as a (occupation omitted) since mid-2017, which involves shift work, means that she is not always available to care for the children at the times specified in Court orders.
The need to protect a child from harm as set out in s60CC(2)(b) of the Act is to be given more weight than the benefit to that child from having a meaningful relationship with both parents[1]. That is, in balancing the two primary considerations, the court must make orders that first protect the child from harm while attempting to ensure that the child has a meaningful relationship with both parents.
[1] See s.60CC(2A)
In this case, the children are at some risk of harm from multiple sources.
First, there is evidence that they have been exposed to family violence perpetrated upon the wife by the husband, and I note that exposing a child to family violence is an act of child abuse in itself under s.4AA of the Act.
Second, they have been exposed to Ms Ellard’s erratic and volatile behaviour in general, which places them at some risk of emotional abuse.
Third, there is some evidence that both parents have used physical discipline on the children.
I will therefore need to craft orders that protect the children as much as possible from that harm while still ensuring that they have strong and meaningful relationships with both their father and their mother.
The “Additional Considerations” set out in s.60CC(3) are as follows:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
At the time of trial [X] was eight years old and [Y] was seven.
Ms J was of the opinion that while [X] was angry with her mother, and felt abandoned by her, she wished to spend more time with her. [X] felt conflicted about that view because of the inconsistency of the time she had spent with Ms Ellard since her parents separated.
Despite expressing a wish to spend more time with her mother, [X] was clear that she wished to remain living primarily with her father. In addition, Ms J reports that “[X] was clear in her expressed wish that she did not wish to spend increased time with her mother than what she did at present”.
[Y] is not said to have expressed any clear view about where he should live in his interview with Ms J, although he did say that he “missed her and wondered why she did not spend time with him and his sister more often”.
While the court notes the views of the children, their young age means that those views cannot be determinative of their living arrangements, and must be weighed against other evidence.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The evidence before the court is that both parents love these two children, and both are loved in return. Ms J reports that both children “interacted warmly with both parents” and “were relaxed in the company of both the parents”.
However their relationships with the children, at least at the time of trial, were different.
Ms J reports that the children accepted hugs from their mother, but that they did not voluntarily reach out to her, although [Y] sat close to her during his observation session.
Ms J notes that [X] in particular appeared to have a “close emotional connection with her father”, and she told Ms J that she liked living with him, feeling safe and well cared for in his care.
[X] told Ms J that “she was scared to talk openly about her mother”, and that she did not want her mother to know that she wanted to remain living with her father. The child told Ms J that “she had seen her mother screaming and swearing at the father on many occasions”.
[X] clearly expressed conflict about her relationship with her mother, saying that while she missed her and her hugs, she did not enjoy being with her, and she felt hurt that her mother had not spent any time with her on her previous birthday.
When [X] drew a picture of her family, she drew herself with her father and [Y], saying that “her mother did not feel like a part of her family anymore”. When encouraged to add her mother to the family picture, [X] did so but then drew a line between her mother and the rest of the family.
All of that indicates a young child in some serious conflict about her relationship with her mother.
[Y], too, appeared to experience some conflict around his relationship with his mother. He stated that he was afraid of her because “in the past if she was angry she smacked him”, but he nevertheless “sat close to his mother and was full of smiles” during the observation session.
There is also some evidence that the children have warm and close relationships with members of their paternal family, spending regular time with their paternal cousins.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The children lived with both their parents from their births until February 2015 when the mother left the family home to live with her new partner and employer Mr B.
It is the husband’s evidence that she came back to the family home only rarely, and for short periods of time, until November 2015 when she returned to the family home after her relationship with Mr B broke down.
The wife disputes the husband’s evidence and says that she returned to the home regularly between February and November 2015 to cook for the family and to take the children to school.
When questioned about that matter at trial, the wife said it was difficult for her to spend more time with the children because she was involved in running a (business omitted) with Mr B.
Nevertheless, it is clear to the Court that between February and November 2015, for whatever reason, Ms Ellard took fewer opportunities to spend time and communicate with the children than she might have.
Between November 2015 and January 2016, the parties lived at the family home while separated under the one roof. Ms Ellard was working during that time and the husband remained at home as the children’s full-time carer.
It would appear that both parties took every opportunity to spend time and communicate with the children during those months.
On 29 January 2016, Mr Ellard was removed from the family home by police after an argument with Ms Ellard which included some physical abuse, all of that occurring while the children were in the house. Victoria Police obtained an Interim Intervention Order against the husband, and he lived with his sister and her family until 22 February 2016 when, with the support of the wife, the Intervention Order was varied to allow him to return to the family home.
The children again lived with both parents, albeit that their parents were separated, until 22 July 2016 when Mr Ellard was again removed from the family home by the police and again went to live with his sister and her family. The Intervention Order was again varied to prevent Mr Ellard from attending at the family home, and he did not see the children again until he attended their school and collected them on 1 August 2016.
Since that time, the children have lived in their father’s care, first at his sister’s home and then, from 31 October 2016 at the family home, and he has been primarily responsible for their welfare and development.
He has certainly taken every opportunity to participate in making decisions about their long-term and day-to-day care, and, being the primary carer of the children, he has also taken the opportunity of spending time and communicating with them.
Between the day when Mr Ellard collected the children from their school and 31 October 2016, when Ms Ellard finally left the family home, the children lived with their father at his sister’s home and spent time with their mother by agreement between the parents.
After the events of 5 October 2016 subsequent to the s.11 F counselling session and orders being made[2], the husband stopped all contact between the children and their mother pending, he said, the outcome of the psychiatric report ordered on that day.
[2] Described at paragraph 36 herein.
The mother took a proactive stance in relation to that decision, instructing her solicitors to insist that the orders of 5 October 2016 be complied with, and she recommenced spending time with the children on 25 November 2016 when she collected them from school over the objection of the husband and in the presence of police.
By that time, the mother had rented a two-bedroom property in Region A which had room for both her and the children.
Under cross-examination by counsel for the Independent Children’s Lawyer at trial, Ms Ellard conceded that there had been several times since November 2016 when she had asked Mr Ellard to pick the children up before the end of her time with them because of her work commitments.
It was her evidence that she had begun work as a (occupation omitted) in about 2017 after working for six months at a (employer omitted) until 2017, and that before that she had worked as a (occupation omitted).
Ms Ellard gave evidence that while she had worked at the (employer omitted) she had been able to take the children to school and collect them in the afternoon, but that her current employment as a (occupation omitted) involves shift work and there are times when her work commitments make it impossible for her to spend time with the children.
What is clear from all the above evidence is that the children’s time with their mother has been inconsistent ever since she first left the family home in February 2015. That is not a criticism of the mother – many mothers need to work – but there have been various issues which have affected the mother’s ability or willingness to spend time with the children since separation.
It was her evidence at trial that if the children were to live with her she would obtain casual work while they were at school, thus allowing her to spend all their free time with them.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The husband has supported the children from his Centrelink benefits since he ceased working in 2012.
The wife says she paid significant sums of money to the husband for the children’s expenses until mid-2016 and it is difficult to understand how the husband has been able to support the children entirely from his Centrelink benefits. There is some evidence that the mother has not paid any significant regular child support since that time, although she does support them when they are spending time with her.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children’s current circumstances, which have pertained since the father collected them from their school in mid-2016, are that they live with their father and spend time with their mother pursuant to orders made on 5 October 2016.
It was the evidence of Ms J that that situation was appropriate for the children and should continue.
As set out above, she was concerned that if the children were to live with their mother on a full time basis, Ms Ellard’s volatility and erratic behaviour would unsettle them and cause confusion for them, and she was sceptical whether Ms Ellard had the emotional stability to be their full time carer.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
At the time of trial, the husband and children lived in Property A and the wife in Region A, about 37 kilometres or about 30 minutes driving time from Property A.
That distance does not present insurmountable practical difficulties or expense associated with either parent spending time with the children if they live with the other parent.
In addition, it was Ms Ellard’s evidence at trial that she intended to move closer to Property A so that she could better provide care for the children.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There appears to be little evidence that either parent is incapable of taking care of the children’s material needs.
It is in the area of their emotional needs that the Court has some serious concerns.
I have already found that the mother lives with mental health issues that affect her capacity to look after the children.
The evidence of the incidents which led to Intervention Orders being made against the father indicates that he has perpetrated and exposed the children to family violence, which cannot help but have had an effect on their emotional stability.
The considerable animus between these parents, which was evident at trial, at least on the part of the wife, cannot be conducive to the children’s emotional health.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The wife presents as somewhat immature in that she finds it difficult to contain her emotions when stressed, although it would appear that she is well able to hold down employment.
The husband presents as a more mature parent, who has cared for the children appropriately in difficult circumstances. However, his propensity to resort to violent behaviour when frustrated by the behaviour of the wife indicates that he needs to take steps to address that inability to contain himself (or the choice to use violence) in order to be the role model to his children that he wishes to be.
Both parties are (nationality omitted) and therefore the children are not likely to be caught in any cultural conflicts between them. I will make orders that provide for the parents to share important religious and cultural festivals.
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant factor in these proceedings.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father has cared for these children for more than three years now, and the evidence is that he has been their primary carer since well before the date the parties separated. There is no evidence that his care has been anything other than loving and caring and appropriate.
The mother is fiercely protective of her role in the children’s lives and clearly loves them dearly.
However, the evidence is that since early 2015, she has found it difficult to prioritise them and their needs ahead of her own.
That is no doubt the result of both her mental health issues and the necessity for her to engage in paid work given that she receives no financial support from the husband. It is to be hoped that she will engage in the psychotherapy recommended by Ms J in order to address her mental health issues and that she can find employment that allows her to spend consistent time with the children.
(j)any family violence involving the child or a member of the child’s family;
The wife alleges ongoing and persistent family violence from early in the marriage. She never reported that abuse to anyone, she says, because she was isolated in Australia without family nearby and with few if any friends who were not part of the husband’s social or familial circle.
Only later in the marriage did she obtain work outside the home when the husband left his employment and decided to stay at home with the children. She was then able to find friends of her own and make a life for herself.
The evidence Ms Ellard gave about this issue was consistent and cogent and, together with the evidence of the guilty plea of the husband to charges of assault against the wife in March 2016 and Intervention Orders made against the husband between January and July 2016, I find that it is more probable than not that the husband engaged in abuse of the wife during the marriage that would fit the definition of family violence set out in s.4(1) of the Act.
I note that Mr Ellard was charged with breaching the 2016 Intervention Order, although those charges were later withdrawn.
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There has been a family violence Intervention Order made between these parties.
The Order was made as a result of a Victoria Police Application on behalf of the wife after the husband assaulted her on 29 January 2016, that order being amended with the consent of the wife to allow the husband to return to the family home in March of that year.
The Order was then further amended in July 2016 to exclude Mr Ellard from the family home.
Both the initial Intervention Order and both variations were made by consent, the initial order and the second variation by consent without admissions by the husband.
That means that no findings of family violence were made against the husband in those proceedings. I note, however, that he pleaded guilty to charges arising from the same set of facts that led to the Initial Order.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
A judge can only make orders based on the evidence presented in any particular case.
Here, the evidence shows that the mother wishes to work to support herself and the children while the father is content to be at home and look after the children as their primary carer. That is a simple observation of the current situation of this family, and should not be taken as a criticism of either parent.
As the matter stood at trial, it is certainly preferable to make orders that give the children certainty and stability for their future.
(m)any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the Court believes is relevant to the issue of the children’s best interests.
Decision: Issue B
When I consider all the evidence set out above, and apply the law to that evidence, I find that it is the children’s best interests to remain living with their father. He has been their primary carer for some years now, and they are reported to have a close and loving relationship with him and to be well settled in his care.
If the mother is able to present new circumstances to the Court in the future, such as evidence of some long-term therapy (ie over a matter of years) having been conducted with some success in relation to her anger management and general volatility, it is possible that the situation might change, but at the moment, I cannot find that the mother has the availability, stability or robust mental health to be the children’s primary carer.
Issue C. How much time the children should spend with their non-resident parent
On the basis of the evidence showing that the children want to spend more time with their mother, and their mother’s stated desire to spend more time with them, I find that it appropriate for [X] and [Y] to spend substantial and significant time with Ms Ellard.
“Substantial and significant time” is defined in s65DAA of the Act as time that includes weekdays and non-weekdays, school days and holidays, and time that allows the child and the parent to be involved in each other’s daily routine and special events that are significant to either the children or the parent, or both.
Thus I will make orders that allow the mother to be involved in the children’s school life and cultural and recreational activities as much as her work commitments will allow.
Property Issues
The law in relation to how a Court should approach the question of property division between separated or divorced married couples is set out in Part VIII of the Act.
Issue D. Whether it is just and equitable to alter the parties’ property interests
This question is mandated by the terms of s.79(2) of the Act which states that a Court may not make Orders altering the property interests of married couples unless it is just and equitable to do so.
In Stanford v Stanford[3] the High Court of Australia stated, at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.
[3] Stanford v Stanford (2012) FLC 93-518.
In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia said that the circumstances described in that passage of the Stanford judgment “encapsulate the vast majority of cases”[4] .
[4] Bevan & Bevan [2013] FamCAFC 116 paragraph 70.
Decision: Issue D
In this case, the parties were married and acquired property which, because of their separation, can no longer be jointly enjoyed. There is nothing in the circumstances of the present case which would remove it from the category of “the vast majority of cases” coming before this Court, and therefore I find that it is just and equitable to alter the parties’ property interests.
Issue E. If it is just and equitable, what are the property interests of the parties and what is their value?
The property interests of the parties at the time of trial, including both those that are and are not in dispute, can be set out as follows:
Asset
Ownership
Value
The real property at Property A (“the Property A property”)
Husband
$305,000
The sale proceeds from the parties’ Vehicle 4
Wife
$4300
Vehicle 1
Wife
$5000
Monies taken from joint funds for motorbike
Wife
$10,000
Vehicle 2
Husband
$6000
The husband’s half share in a property in (country omitted)
Husband
Not Known but at least $12,000[5]
Time Share property
Joint
E$10,000[6]
Total non-superannuation Assets
E$352,300
Superannuation Entitlements
Super Fund X
Husband
$8712
Wife
Not known but likely to be minor - say $8712.
Total superannuation
Entitlements
Not Known but assumed to be E$17,424
Liabilities
Mortgage over the Property A property
Husband
$144,528
Credit card debt
Husband
$6500
Debt to husband’s brother (in dispute)
Husband
$90,000
Total liabilities
$241,028
Total nett assets not including superannuation
E$111,272
Total nett assets including superannuation
Not Known but assumed to be $128,696
[5] The husband agreed under cross-examination and re-examination that he owned this property, a shop, with Ms Ellard’s sister, and that he and the wife paid $12,000AUD for his share.
[6] The husband agreed under cross-examination that the parties own this property but that appears to be the only time it was mentioned in the proceedings
Matters in dispute
1.The loan purportedly owed to the husband’s brother
The husband claims he owes a debt of $90,000 to his brother, Mr J, arising out of the sale of a property in Property B and the purchase of the Property A property.
The wife disputes there is any such debt owed.
In his initial Affidavit sworn 25 and filed 27 July 2016, Mr Ellard deposes as follows in relation to the sale of a property at Property B (“the Property B property”), previously owned by him and his brother as tenants-in-common in equal shares, and the purchase of the Property A property:
21.In 2010 the Property B property was sold for $390,000. After payment of the mortgage the net proceeds were approximately $160,000. At the time of the sale I purchased former matrimonial home at Property A in my sole name for $296,000 (“the former matrimonial home”).
22.The net proceeds of sale from the Property B property were applied toward the purchase of the property and I recall I obtained a mortgage of $150,000 from the Bank to complete the purchase.
No mention was made at that time of any monies being borrowed from the husband’s brother for the purchase of the Property A property.
However, in his Trial Affidavit sworn 25 October and filed 26 October 2017, the husband deposes that the net proceeds of the sale of the Property B property had been about $200,000 and that he and his brother had been entitled to a one half share of those monies each, or about $100,000.
Mr Ellard then deposes that his brother loaned him $90,000 of his share of the sale proceeds so that Mr Ellard could buy the Property A property. He says that while there was no formal loan agreement documenting that loan, he is “required to pay the sum of $90,000 to my brother from the sale of the former matrimonial home”.
Later in his Trial Affidavit, at paragraph 100, the husband deposes as follows:
In around 2010 I purchased the former matrimonial home situated at Property A in my sole name for $296,000 plus stamp duty costs. To the best of my recollection the funds required to acquire the property of around $310,000 were obtained as follows:
(a)approximately $105,000 from the sale of the Property B property received by me;
(b)$150,000 from the Bank by way of mortgage;
(c)$90,000 loan from my brother, Mr J
He then goes on to say, in paragraph 101:
I recall I had additional funds remaining to put toward costs and expenses for me, the mother and the children, toward the former matrimonial home following the acquisition of the property and toward payment of credit card debts. The mother the children and I also returned to (country omitted) in 2010 and 2011.
The purported loan is also included in the list of assets and liabilities deposed to by the husband in paragraph 117 of his Trial Affidavit
In his Outline of Case Document filed on 27 October 2017, the husband states the following:
2010 – Property B property sold for $390,000. The father’s brother Mr J advances $90,000 from sale of property to father to acquire former matrimonial home by way of a loan.
Father acquires former matrimonial home for $296,000 and obtains a mortgage of $150,000. Father applies loan from his brother of $90,000 to complete the purchase.
The mother did not make any financial contribution towards the purchase of the property.
In the list of the parties’ assets, liabilities and financial resources filed as part of his Outline of Case Document, Mr Ellard includes a debt of $90,000 to his brother.
I note that in his Amended Financial Statement sworn 20 October and filed 26 October 2017 (the day before his Outline of Case Document was filed) the husband makes no mention at all of any debt owed to his brother.
The inconsistencies in this evidence and the lateness of the inclusion of the purported debt in the husband’s case are somewhat concerning.
Both the husband and Mr J were subjected to cross-examination on this issue at trial.
It was the husband’s evidence that his brother had inherited their mother’s share of the Property B property in late 2006 under the terms of her will and that the tenancy-in-common between the brothers had been registered soon after their mother’s death.
However, he stated that while the Property B property had originally been registered in the names of him and his mother, it was his brother who had shared in the mortgage payments and that the property had only been registered in the joint names of him and his mother because his brother was not working at the time and was unable to obtain a mortgage loan.
The husband confirmed that Mr J had lived with the parties in the Property B property, and that he had paid the husband about $600 per month, which included his share of the mortgage and utility costs.
He was adamant that there was a clear understanding between him and Mr J that Mr J would not insist on payment of his share of the Property B property’s sale proceeds until the husband sold the Property A property.
I found Mr Ellard’s evidence difficult to follow at times. Indeed, much of his evidence about amounts of money, dates and times, was contradictory and unsatisfactory, but he could not be shaken in his evidence about the source of the monies paid as a deposit on the Property A property.
Mr J gave oral evidence (not having filed an Affidavit) and was cross-examined by Ms Ellard.
Mr J confirmed that the property at Property B had been bought in 2006 and had been owned by his brother (the husband in these proceedings) and mother until his mother’s death later in 2006, when he (Mr J) had inherited her share of the property by the terms of her will.
When he was asked about the husband’s evidence that the brothers had each paid $10,000 towards the deposit on the property, he stated that he thought it had been only $5000 each and that he had taken that $5000 from his savings, despite having been only in his teens at the time and not having been working at the time of the purchase.
His evidence in relation to how the property and the mortgage were transferred from his mother’s and brother’s names to his brother’s and his names was confused and vague and most unhelpful. He was clear, however, that when the Property B property was sold and the Property A property purchased, he was happy for his share of the Property B sale proceeds to be invested in the Property A property purchase, saying he trusted his brother.
He confirmed that he had lived in the Property B property from its purchase until 2009, about a year after the parties to these proceedings were married. He said that his share of the property was the only asset he inherited from his mother.
He further confirmed that the Property B property had been sold in 2010 for about $389,000. When asked about the nett proceeds from the sale, he stated: “200 or a little bit less, roughly. I can’t remember but somewhere in there. Probably – all I know was 90 was – I should have received which I didn’t receive”.
It was his evidence that he had never received any cash from the sale of the Property B property, and that he and the husband had an agreement to the effect that “my share will be in Property A property, between him and I. And one day when he sells Property A I will get my share.”
He was clear that he believed the agreement was for him to receive the sum of $90,000 upon the sale of the Property A property in the uncertain future, and not a percentage of its actual sale price. He vehemently denied any suggestion that he had gifted his share of the Property B property’s sale proceeds to his brother.
Mr J said that he was currently living at the Property A property with his brother and the children, and that he was not contributing to the mortgage payments but was paying for his living expenses such as food and utility bills.
Mr J’s evidence was given in a rather defensive and belligerent manner, and I had to reprimand him more than once for the manner in which he spoke to Ms Ellard. There was clear hostility between them – more, in fact, than was discernible between the parties during the wife’s cross-examination of the husband.
Nevertheless, Mr J could not be shaken in his evidence that the husband owed him the sum of $90,000 from the sale of the Property B property and that the agreement between him and his brother was that he would be paid back upon the sale of the Property A property.
Despite the late inclusion of this evidence, and the inconsistencies in the husband’s evidence over time in relation to how he paid for the Property A property, I accept the evidence of both the husband and Mr J that even if he did not contribute any monies to the deposit and/or mortgage of the Property B property, Mr J inherited a one half share in that property under his mother’s will, a copy of which was entered into evidence. In the absence of any evidence to the contrary other than the assertions of the wife, I find, on balance, that the husband does owe his brother the sum of $90,000.
As that sum was invested in the purchase of the family home, it will be considered as a marital debt in these proceedings. I note that Mr J claims only the exact sum of $90,000, and not a proportion of the value of the Property A property.[7]
[7] Counsel for the husband did say at trial that if I did not find that the sum was a loan, the husband would assert that his brother had an equitable interest in the property in the sum of $90,000.
2. The husband’s credit card debt of $6300
The husband claims that he has a credit card debt of $6300 arising from expenses paid during the marriage.
The wife rejects that claim and says that any credit card debt the husband owes is his alone and ought not to be included in the property to be divided between the parties.
The husband’s evidence, gleaned from affidavit material and from the wife’s cross-examination of him at trial, was that in July 2017 he paid for the wife’s motor cycle and accessories by using his credit card and cash, the credit card amount being $7,000.
The wife’s evidence, elicited under cross-examination by the husband’s counsel, was that the husband had offered to buy the motor cycle for her and that they had had an agreement that the $10,000 he had paid (including the bike, her licence and riding clothes) would be considered an advance on the parties’ property settlement. There is no dispute that Ms Ellard has had the benefit of those monies.
In those circumstances, I consider the credit card debt to be a debt of the marriage, notwithstanding that it was incurred well after separation. It will therefore be included in the property pool to be divided.
3. Superannuation
The husband’s superannuation entitlements at the time of trial were $8,712.
The wife does not disclose any superannuation entitlements, but as she has been working since 2012, albeit in fairly low-paying occupations, she must have some such entitlements. However, I consider that her superannuation is unlikely to be worth much more than that of Mr Ellard, if indeed it is more, and for the purposes of these proceedings, I do not propose to make orders for any superannuation split, especially as Mr Ellard’s entitlements are too small to be split.
Both parties will therefore retain their current entitlements, which I have assumed to be essentially equal.
Issue F. What were the parties’ contributions to the property?
This question arises from the requirements of s.79(4) of the Act which states as follows:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Initial contributions
At the time of the parties’ marriage in 2008, the husband was one of two registered proprietors of the Property B property, the other proprietor being his mother.
It is his evidence that he had purchased that property in 2006 for the sum of $207,500. Mr Ellard says that the deposit was met by $10,000 from his savings and a gift of a further $10,000 from his brother. He says the remainder of the purchase price was obtained by way of a mortgage loan of $180,000.
In 2006 Mr Ellard’s mother died and her interest in the Property B property was transferred to Mr Ellard’s brother Mr J so that the brothers held the property as tenants-in-common in equal shares.
It is the husband’s evidence that he and his brother paid the instalments on the mortgage encumbering the Property B property, as well as all outgoings for the property.
The husband deposes that at the time of the marriage in 2008 he was working full-time earning a salary of about $31,000 per year.
Mr Ellard deposes that the wife owned nothing but personal possessions at the time and brought only her clothing when she migrated to Australia from (country omitted) in 2008.
The wife’s evidence concurs with that assessment.
It is therefore obvious that the husband’s initial contributions to the parties’ property were much greater than those of the wife.
Contributions during the marriage
The major financial contribution to the parties’ property during the marriage was made by the husband and his brother in the form of the significant deposit the husband was able to pay for the Property A property using funds from the sale of the Property B property.
Otherwise, the husband’s evidence is that he worked full time from the commencement of the marriage in 2008 to about 2012 when, he says, he ceased work at the wife’s insistence. He did not work again outside the home during the marriage, deposing that he was the primary carer of the children after that time.
Mr Ellard deposes that he was the only income earner in the family during the marriage and that the entirety of his income was applied towards the living costs of the family.
It is his Affidavit evidence that the wife received no income or Centrelink benefits during the marriage apart from the Family Tax Benefits to which the family was entitled.
However, under cross-examination by the wife, he conceded that she had worked outside the home from 2012. He said that Ms Ellard had worked at a (employers omitted), and that he thought she had been working at “(employer omitted)” in late 2014 and early 2015.
Mr Ellard says that after he ceased full-time work in 2012 he established a business which was not successful. He says that while he submitted all information about that income to Centrelink, and filed a Business Activity Statement each month, he earned negligible income from it. It is his evidence that he was in receipt of Centrelink benefits and considered himself to be unemployed after he ceased work in 2012.
The wife’s evidence is that when the husband stopped working in 2012 she was forced to find work outside the home. She categorically denied that his decision to cease working was at her insistence, or that she had had any part in that decision.
She says that she worked in various short term jobs in the (omitted) industries until 2014, when the husband told her that there was not enough money coming into the family and that he had arranged for her to work in a (employer omitted) as a (occupation omitted) in order to swell the family’s finances. She says that she worked in that business making “good money” between 2014 and 2015.
It is not in dispute that the wife engaged in that (perfectly legal) employment between 2014 and 2015.
However, the husband’s evidence is that while the wife worked away from home in that period, he was unaware of the nature of her employment at that time, and thought she was working at “the (employer omitted) at night”.
It is the wife’s evidence that the husband forced her to work in the (employer omitted), or, at very least, that he manipulated her so that she agreed to do so.
In circumstances where this evidence conflicts, I find myself unable to make a positive finding on that particular issue, but in any event, the nature of the wife’s work during that time is not material to the Court’s deliberations as to contributions. I am only required to decide whether the wife made financial contributions from her work which benefited the family. I note that I have already made comments about the wife’s involvement in that work in the context of the discussion above about her mental health.
The wife says she gave all her earnings to the husband in cash, but the husband denies that he received any monies at all from the wife’s employment, deposing that as far as he now knows, she either received any earnings in cash and retained them, or had her own bank account into which she deposited any monies she earned. In any case, it is the husband’s evidence that the wife did not work in any significant manner during the marriage at all.
Under cross-examination by the wife at trial, Mr Ellard stated that his mortgage obligations during the marriage were $914 per month, and that the amount was reduced to $840 per month in 2016.
He agreed that while the parties had been living at the Property B property they had paid the sum of $12,000 to purchase a shop in (country omitted)[8], spent about $10,000 to $12,000 to renovate the property’s kitchen and paid $5,000 to a migration agent in relation to the wife’s visa. It was his evidence that all of those sums had been met from his wages (it was his evidence that his brother was paying half the mortgage at that time), and from the Family Tax Benefits the parties received after [X] was born.
[8] It was the evidence of both parties that the shop was registered in the names of the husband and the wife’s sister and that it remained in their joint names but there was no other evidence about that asset. Nor were there any proposals as to how it should be considered in these proceedings.
It is difficult to see how the parties could have bought the shop in (country omitted), renovated the kitchen and paid the migration agent in two years on the income declared by the husband.
However, there is no evidence before the Court about where those funds came from other than the evidence of the parties, and the wife does not say that she was working when the parties lived in the Property B property.
The husband agreed that when the Property B property was sold and the Property A property purchased, it was the wife who arranged and dealt with the vendor and purchaser real estate agents, the conveyancing solicitors and telephone and utility companies.
He agreed that before the date of separation, the Property A property had been on the market for sale, but claimed that it had been he who had paid the $1000 to the real estate agent for advertising and the Section 32 statement from his Centrelink payments. He agreed that Ms Ellard had accompanied him to the real estate agent so that she could interpret for him but denied that she had paid for the advertising and Section 32 statement.
It was his evidence that he had been working when the parties moved to the Property A property and that he had been earning about $600 per week at the time but that his income had reduced to $400 after his hours had been reduced to four days per week.
He said that the gas and electricity costs had been about $300 per quarter and the water rates about $160 to $170 per quarter.
It was his evidence that he alone had paid for all the family’s expenses, including the mortgage, utility and telephone costs and transport from his wages of $600 or $400 per week and Family Tax Benefits, or, later, from his Centrelink parenting payments.
It was the husband’s further evidence that the parties had been buying equipment with the intention of opening a (business omitted), but that that enterprise had not proceeded and the wife had sold the equipment and traded in Vehicle 3 in order to buy a Vehicle 4 for $13,000. Vehicle 4 was later sold for about $13,000 or $14,000 and the wife retained those proceeds.
There does not appear to be any evidence about where the funds for the purchase of the (business) equipment came from, but again, it is difficult to see how they could have been sourced from the husband’s wages or Centrelink benefits[9].
[9] It was the husband’s evidence at trial that his Centrelink income was $600 per week at that time: $350 for him and $250 for the children.
Therefore, based on the above evidence, I find that it is more probable than not that the wife was working, and contributing her income, at least in part, to the expenses of the family, from the time the husband ceased his employment in 2012.
Overall, apart from the significant contribution of the husband and Mr J to the purchase of the Property A property, I find that the parties were either working to support the family, or staying at home to look after the house and care for the children, throughout the marriage.
In those circumstances, the husband’s contributions during the marriage exceeded those of the wife because of the investment of his share of the proceeds of the Property B property, to which the wife had made few contributions into the Property A property. I note that I recognise Mr J’s contribution as a liability of the marriage rather than as a contribution by the husband.
Post-separation contributions
The parties separated in January 2015 when the wife moved out of the Property A property and began a cohabitation relationship with Mr B.
It is the wife’s evidence that Mr B had been a client of hers at the (employment omitted) and that they had developed a relationship. She says that when the husband became aware of the relationship he forced her to leave the family home.
The husband’s evidence is that Ms Ellard left the marriage at his request because he had learned of her relationship with Mr B and considered the marriage to be over.
During the period when Ms Ellard lived with Mr B, between about February and November 2015, she would visit the Property A property to spend time with the children and cook meals, although the duration, frequency and regularity of those visits is in dispute.
It is the husband’s evidence that the wife made no financial contribution to the family post separation apart from small amounts of $30 to $50 which she would give him irregularly for the children’s expenses. It is the wife’s evidence that she gave Mr Ellard $600 per month in cash for the children’s support in the months following the separation when she was operating a business with Mr B.
It is not possible to make a finding on that issue save to say that there is no evidence from the husband that he has struggled to support the children while paying a sizeable mortgage and all living expenses for himself and the two children when his only income has been in the form of Centrelink payments.
In November 2015 Ms Ellard returned to the Property A property and it is not disputed that the parties lived there, separated, until Mr Ellard was removed as a result of an Intervention Order obtained by police on 29 January 2016.
Between that date and 22 February 2016 Mr Ellard lived with his sister and her family and the children lived with the wife alone in the Property A property.
On 22 February 2016, Ms Ellard consented to a variation in the Intervention Order that allowed Mr Ellard to return to the Property A property on condition that he did not commit family violence.
The husband then returned to the Property A property and the parties lived there, again while separated, until the husband was again removed by police on 22 July 2016 after the wife made an application for a further variation to the Intervention Order after what she says was months of family violence perpetrated against her by the husband.
During that period the wife was working while the husband stayed home caring for the children, although it is clear that the wife was also involved in their care.
The children lived with their mother until 28 July (according to the husband’s evidence) or 1 August 2016 (according to the wife), when the husband took them from their school after showing the Orders of March 2015 to the school authorities. I note that he had filed his Initiating Application in these proceedings on 27 July 2016.
Ms Ellard remained living in the Property A property, and the children and Mr Ellard lived with Mr Ellard’s sister, until Ms Ellard vacated the property on 31 October 2016 pursuant to orders made by consent on 5 October 2016.
It is not in dispute that Ms Ellard was not paying child support after that time. She asserts, and the husband denies, that she had been paying him about $300 per fortnight for the children’s support for a few months after the 22 July 2016 separation.
Since October 2016, Mr Ellard and the children have lived at the Property A property and Ms Ellard has lived elsewhere.
Mr Ellard deposes that he has paid all mortgage instalments and outgoings on the Property A property since July 2016. That is, from the time the children were returned to his sole care.
In those circumstances, I find, on the balance of probabilities, that the husband’s contributions to the parties’ property post separation were greater than those of the wife as he has paid the majority of the mortgage payments and cared for the children for the vast majority of the time.
Decision: Issue E
On the basis of all the above evidence, where the husband’s contributions exceed those of the wife before the marriage, during the marriage and after the marriage, I find that the parties’ contributions to their property fall 65% to the husband and 35% to the wife.
Issue F. Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
Section 75(2) of the Act sets out the factors the Court must take into consideration when making orders for the maintenance of a party to a marriage.
The inclusion of this exercise in property proceedings is required by s.79(4)(e) (see paragraph 235 above).
Section 75(2) states that the court must consider the following matters:
(a) the age and state of health of each of the parties; and
(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; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
i) (i) any law of the Commonwealth, of a State or Territory or of another country; or
ii) (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; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(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; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
iii) (i) the property of the parties; or
iv) (ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
v) (i) a party to the marriage; or
vi) (ii) a person who is a party to a de facto relationship with a party to the marriage; or
vii) (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
viii) (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In this case, the parties are still reasonably young and appear to be in reasonable health. Neither is cohabiting with another person.
There is no evidence of Mr Ellard lacking any working capacity. He simply chooses to stay home and care for the children and I do not criticise him for that, but as the children grow up, there is no reason why he could not find employment in the future should he choose to do so.
However, while the children are young, he has them in his care with all the associated costs that that entails. The evidence is that he does not receive assessed child support from the wife.
Ms Ellard is engaged in full time employment and, apart from having some mental health issues, she does not lack any capacity to continue to continue to work. Indeed, she has been working fairly continuously since before the date of separation.
The husband owns and will retain the family home subject to its mortgage, while the wife is renting. That is, he has security of accommodation while the wife does not.
However, he has the liability of the $90,000 debt to his brother and if and when he sells the Property A property, that debt will be called in. That will no doubt affect whether or not he is able to provide secure housing for himself and the children into the long term future.
Decision: Issue F
When I balance all the above matters, I find that there should be a five per cent adjustment to the husband in light of the matters set out in s75(2).
That means that the husband should receive 70% of the parties’ nett property overall and the wife 30%.
Issue G. In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
The husband seeks orders that he receive a property settlement of 70 per cent of the parties’ nett assets. He proposes that in order to effect that settlement, he pay the wife the sum of $10,000 and that each party otherwise retain what assets they currently have in their possession.
That proposal is based on a property pool worth $88,000 – a pool which does not include either the shop in (country omitted) or the time share, the existence of both of which the husband conceded at trial. As can be seen at paragraph 194 hereof, I have calculated the property pool to be divided to be worth $111,272.
If the husband’s proposal to pay the wife $10,000 with the parties otherwise to keep their current assets were accepted, that settlement would see him retaining the family home subject to its mortgage, his Vehicle 2, the property in (country omitted), the time share property, his credit card debt, the debt owed to his brother, and his superannuation entitlements, property with a nett value of at least $97,472.
70% of $111,272 is $77,890 in rounded figures, and 30% is $33,382.
The husband says (without challenge) that the wife already has the Vehicle 1, the sale proceeds from the Vehicle 4, and $10,000 which, it is agreed, was removed from joint funds to buy the wife a motor cycle in 2017. He proposes that she retain those assets (including the motor cycle) and her superannuation. That is, that she has already retained assets worth about $19,300 plus her superannuation[10].
[10] The Vehicle 1 is worth $5,000; the sale proceeds from the Vehicle 4 of $4,300 and the $10,000 paid from joint funds for the wife’s motor cycle.
If each party is to retain the property they currently have, then to effect a 70/30 division of their assets, the husband will have to pay to the wife the sum of $14,082[11], and I will make Orders to that effect.
[11] $97,472 - $77,890 = $14,082 and $33,382 - $19,300 = $14,082.
Conclusion
This has been a case of some contradictions.
The husband presents as a quiet and contained man who is loved and trusted by his children, but I have found that he has perpetrated considerable family violence against the wife. In addition, I found his evidence to be contradictory and unsatisfactory in relation to some of the property matters.
The wife clearly lives with some mental health issues but is able to hold down a full-time job and I found her to be an honest witness, despite her somewhat chaotic presentation.
It is to be hoped that with these Orders, the parties, and the children, will be able to settle into their lives with some certainty so that they can plan for the future.
I certify that the preceding three hundred and nine (309) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 18 June 2018
Key Legal Topics
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Family Law
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Property Law
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Injunction
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