Fosbery & Fosbery
[2008] FMCAfam 95
•8 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FOSBERY & FOSBERY | [2008] FMCAfam 95 |
| FAMILY LAW – Parenting – competing proposals for care arrangements – parental responsibility – mother’s psychiatric health – schooling. FAMILY LAW – Property settlement – pool of assets – contributions – separate business interests and husband and wife – just and equitable. FAMILIY LAW – Spouse maintenance. |
| Family Law Act 1975 |
| Bento & Bento (2007) FamCA 498 NHC and RCH (2004) FLC 93-204 Crook & Cairns (2007) FMCAfam 371 Farnell (1996) FLC 92-681 Gaitan & Spark & Hagan (2005) FamCA 879 Gollings & Scott (2007) FLC 93-319 Goode& Goode (2006) FamCA 1346 Handley & Tranter (2007) FamCA 344 H & M (2006) FamCA 1071 Hickey (2003) FLC 93-143 Horton & Horton (2006) FamCA 1102 Kowaliw (1981) FLC 91-092 Lavender & Turner (2007) FamCA 182 AJO v GRO (2005) FLC 93-218 Re G: (Children’s Schooling) (2000) FamCA 462 |
| Applicant: | MS FOSBERY |
| Respondent: | MR FOSBERY |
| File Number: | BRM 9841 of 2006 |
| Judgment of: | Baumann FM |
| Hearing date: | 1 November 2007 |
| Date of Last Submission: | 1 November 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 8 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kirk SC |
| Solicitors for the Applicant: | Hirst & Co |
| Counsel for the Respondent: | Mr Galloway |
| Solicitors for the Respondent: | Parker Family Law |
ORDERS
All previous parenting Orders be discharged.
That the child M born in 1998 live with the Father.
That the Mother and the Father will have equal shared parental responsibility.
The child, M shall live with the Mother at all times as agreed between the parties but no less than:
(a)Each alternate weekend commencing 28 February 2008 from after school Thursday to before school Monday provided that should the Monday be a public holiday or pupil free day, the time will extend to before school Tuesday;
(b)From after school Thursday to before school Friday in each alternate week commencing 21 February 2008;
(c)The arrangements in Order 2 and 4.1 and 4.2 of this Order are varied by the following arrangements:
School Holidays
(i)The child shall live with each parent for half of each school holiday period which is determined by the school M attends, M shall live with the Mother in the first half in even numbered years and the second half in odd numbered years.
Christmas Day
(ii)The child shall live with the Father from 3.00pm Christmas Day to 3.00pm Boxing Day in even numbered years (when the child is with Mother for the first half of the holidays).
(iii)The child shall live with the Mother from 3.00pm Christmas Day to 3.00pm Boxing Day in odd numbered years (when the child is with the Father for the first half of the holidays).
Mother’s Day
(iv)M shall spend time with the Mother between 9.00am to 5.00pm on Mother’s day if not otherwise living with her on that day.
(v)M shall spend time with the Father between 9.00am to 5.00pm on Father’s Day if not otherwise living with him on that day.
M's Birthday
(vi)M will spend 3 hours on his birthday at a time agreed between the parents) with the parent he is not living with on that day under this Order.
Easter Public Holidays 2008
(vii)For Easter 2008 M will spend time with the Mother from 3.00pm Easter Sunday to commencement of school Tuesday.
(d)For all periods other than those when M is at school, the Father will deliver or cause M to be delivered to the Mother’s residence at the commencement of the Mother’s time with M and the Mother will deliver or cause M to be delivered to the Father’s residence at the conclusion of M’s time with the Mother.
(e)For the purpose of these Orders, school holiday time shall commence:
(i)When the Mother’s time falls in the first half of the school holidays from after school on the day school term finishes and concludes at 5.00pm on the day calculated to be half of the school holidays;
(ii)When the Mother’s time falls in the second half of school holidays from 9.00am on the day calculated to represent half of the school holidays and conclude at commencement of school on the day the school term commences;
(iii)School holidays shall be deemed to commence at close of school on the day the school term finishes in accordance with the school calendar published by M’s school at the time and conclude at commencement of school on the day M returns to school for commencement of the new term and the number of nights in each school holiday period and if there is an uneven number of nights the Father will retain the additional night.
Should M wish to telephone either parent when M is with the other parent, then the parent with whom M is at the time will do all things necessary to facilitate that telephone call.
The mother and the father will use their best endeavours to ensure that M attends any educational, religious, sporting or cultural event or activity that he is to participate in when M is in their care.
Neither the Mother nor the Father will denigrate the other to or in the presence of M or L and/or N.
The Mother and Father will keep each other informed at all times of their residential address, email address, mobile telephone number and landline contact telephone number.
M shall be enrolled at [S] School for year 5 commencing in 2008 and remain so enrolled unless otherwise agreed between the parties or ordered by a Court.
That the Father and Mother do all things necessary to ensure that M’s enrolment to attend [B] School remains current and that any fees associated with the enrolment be paid for by the Mother.
The Mother and Father will consult with each other about decisions to be made in exercise of their equal shared parental responsibility for M and in so giving will:
(a)Inform the other about the decision to be made;
(b)Consult with each other on terms they agree;
(c)Make a genuine effort to come to a joint decision.
The process to be used for resolving disputes with respect to decisions for any major long term issue with respect to M and resolving any disputes with respect to the terms or operations of these Orders will be:
(a)The Mother and Father will consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute and reaching an agreement;
(b)The Mother and Father will pay equally the costs of the Family Dispute Resolution Practitioner;
(c)Should the Mother and Father be unable to agree on a Family Dispute Resolution Practitioner the Father will nominate three (3) practitioners and advise in writing, details of their fees, experience and availability;
(d)The Mother will choose one (1) of the listed practitioners within seven (7) days of the receipt of the father’s written list;
(e)Should the Mother fail to choose a Dispute Resolution Practitioner within seven (7) days then the Father will choose.
That within seven (7) days of the date of this Order the net proceeds of sale of the former matrimonial home will be paid to the Wife in the amount of $704,169.45 and to the Husband in the amount of $336,758.09 with any interest accrued after 7 February 2008 to b divided 55% to the Wife and 45% to the Husband.
That the Husband will transfer to the Wife and the Wife will retain for her sole use and benefit absolutely, the following:
(a)The Wife’s superannuation interests;
(b)Furniture and household items in the Wife’s possession;
(c)The balance of funds paid out by ITSA;
(d)Sigma Pharmaceutical shares;
(e)Qantas Frequent Flyer points.
That the Wife transfer to the Husband and the Husband retain for his sole use and benefit absolutely the following:
(a)The Husband’s Superannuation interests;
(b)Furniture and household items in the Husband’s possession;
(c)The Mercedes motor vehicle;
(d)[T] Swimming Club membership;
(e)The Husband’s loan accounts, business interests and associated entitites;
(f)American Express award points;
(g)The Wife’s shareholding in Amlor Pty Ltd.
That within fourteen (14) days of the date of these Orders, the Wife will deliver possession of the Ford Territory motor vehicle currently in her possession to the Husband provided that however should the Wife pay out of the lease to BOQ Equipment Finance Ltd with respect to the said vehicle within the fourteen (14) day period the Husband will cause the Ford Territory motor vehicle to be transferred to the Wife.
That within seven (7) days of the date of these Orders, the Wife will deliver possession of L, N and M’s jewellery to the Husband.
That within seven (7) days of the date of these Orders, the Husband will deliver possession of the leaves to the dining table retained by the Wife to the Wife.
That within seven (7) days of the date of these Orders, the Wife will deliver possession of the [T] entry card to the Husband.
That should the Wife pursue a successful claim against MLC insurance with respect to her income protection policy, the Wife will pay to the Husband 45% of any net payments that are recovered as part of that claim whether by compromise of the claim or judgment.
That the Wife will forthwith upon the compromise of any claim against MLC insurance or upon judgment being given with respect to that claim advise the Husband in writing of the details of the compromise and/or judgment.
That except as otherwise provided in these Orders, the Husband and the Wife are entitled to be sole legal and beneficial owners of all items of property including (but not limited to) money, motor vehicles, insurances, equities, Superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
That the Husband and the Wife will do all such acts and sign all such documents necessary to give effect to the operation of these Orders.
That should either party default in signing or executing such documents required to give effect to any and every provision of these Orders, then the Registry Manager of the Family Law Courts at Brisbane shall be empowered and is hereby empowered to sign and execute documents in lieu of the defaulting parties pursuant to s.106A of the Family LawAct 1975.
That the parties agree that it shall be sufficient evidence of default in signing the necessary document or instrument as referred to above, when the party requiring it to be executed forwards the same to the other party or Solicitors who act for the other party in the making of these Orders and within fourteen (14) days thereof if same is not properly executed and returned to the party requiring the execution by the other party.
IT IS NOTED that publication of this judgment under the pseudonym Fosbery & Fosbery is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 9841 of 2006
| MS FOSBERY |
Applicant
And
| MR FOSBERY |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant wife Ms Fosbery and the Respondent husband Mr Fosbery were a high achieving and high profile couple who married in June 1985. In their respective professions of pharmacy and accounting they were, on any assessment, progressing rapidly and would have appeared to most observers as financially prosperous.
They were blessed with three children L (now nearly 18 years old); N (nearly 16 years old); and M, who was born in 1998 (now aged nine). By July 2003, the girls were students at a Brisbane private school and were progressing well.
On 23 July 2003 an event which had catastrophic effect on this seemingly successful and functional family took place. In most distressing circumstances the family home was raided by armed Federal Police said to be investigating the wife for fraud offences associated with her four operating pharmacies.
The quite public humiliation and innuendo associated with this action and ongoing investigations resulted in the pharmacies being sold and the wife plunging into mental illness and depression. Her functioning as a parent was compromised. She became, in December 2004, and remains, as a patient in a therapeutic relationship with her psychiatrist.
Eventually in or around August 2006 the husband informed the wife that the marriage was at an end. Since that time the children have predominantly resided in the care of the husband, in the family home until its sale some months ago.
As these reasons seek to explain, the parties dispute the care arrangements for M and how their pool of assets should be divided. There is voluminous material filed by each party during the course of this litigation, commenced initially by the wife in the Family Court of Australia in September 2006, before being transferred to this Court in November 2006. Although the parties may be disappointed in the approach I have adopted, I have come to the view that an analysis of every disputed fact (of which there are many) is not necessary to enable me to demonstrate why the orders I propose to make are:-
a)In the best interests of M at this time; and
b)Divide the available pool of assets in a manner which I regard as just and equitable.
I have consciously decided to adopt this approach as a number of the disputed issues were not, of themselves, determinate of the primary issues and an unnecessarily detailed analysis would only have fuelled the chronic conflict which has engulfed this family – a family who have, in many ways, lost so much over an event beyond their control in many ways.
Parenting issue
Tragically the mother’s relationship with her daughters was estranged by the time of trial. I explain this issue further in these reasons; however the mother elected not to seek any defined orders in respect of L and N spending time with her. The mother explained this by saying in her oral testimony (and perhaps optimistically) that “the girls are free to live with me if they wish” but that at this time she is prepared to respect their current wishes not to see her.
As a result, the entire focus of these highly competitive parents was concentrated on M (apart from the property dispute). The issues were:-
a)Who should he live with;
b)How much time should he spend with each parent;
c)Should he attend [S] School or [B] School;
d)Should the parties have equal shared parental responsibility or should the father have sole parental responsibility.
Competing proposals
By the completion of the trial and in accordance with the well prepared written and oral submissions of experienced Counsel Mr Kirk SC (for the mother) and Mr Galloway (for the father) the competing proposals may be summarised as follows:-
Mother
That M reside predominantly with her and that the father spend time with the child each alternate weekend from Friday to Monday and half the school holidays.
In the alternative, the mother proposed the father spend time with the child each alternate week from after school Thursday until before school Monday. The mother says M should attend [B] School from the commencement of 2009 in year six. She proposes the parties have equal shared parental responsibility.
Father
That M reside with him and spend time with the mother each alternate weekend from 3:00 p.m. Thursday to 9:00 a.m. Monday and for a block of three weeks in the month of December each year. The father seeks sole parental responsibility and that M attend [S] School from the beginning of this year (2008).
It becomes obvious from the parties competing proposals that:-
·Each wishes to be the primary carer of M;
·Neither parent offers equal time as a solution;
·Both parents acknowledge the other parent should spend time with M, during the school week; on weekends; and in holidays.
Parenting principles
The childrens’ best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the additional considerations are set out in s.60CC. The primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) will be analysed below to ensure that the order I propose will serve the best interests of the children.
In Goode & Goode (2006) FamCA 1346 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interest of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents” (see Lavender & Turner (2007) FamCA 182).
It follows that unless the presumption of equal shared parental responsibility is rebutted, the Court must consider whether equal time with each parent is in the children’s best interests and reasonably practicable. If the Court does not make an order for equal time, the Court must consider whether the children spending substantial and significant time (as defined by s.65DAA(3)), is in the best interests of the children and is reasonably practicable.
Parental responsibility
Relevantly s.61DA of the Act provides that:-
“61DA(1). When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
61DA(2). The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:-
(a)abuse of the child or another child who, at the time, was a member of the person’s family (or that other person’s family); or
(b) family violence
61DA(3). When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
61DA(4). The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
“Parental responsibility” is defined and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s.61B).
“Equal shared parental responsibility” is not a phrase that is defined in the Act and in Crook & Cairns (2007) FMCAfam 371, Federal Magistrate Lindsay took the view that an order for “joint parental responsibility in relation to long term issues” as was the usual order under the Act prior to the amendments which came into effect on 1 July 2006 through the Family Law Amendment (Shared Parental Responsibility) Act 2006, was “equivalent in all relevant respects to an order for equal shared parental responsibility”.
The Explanatory Memorandum reflects that the intention of the section was that “both parents participate in decisions about the child” (paragraph 128), and an example given for when the presumption will be able to be rebutted was “where there are no issues of violence or abuse but a parent is addicted to drugs in such a manner that he or she is unable to make decisions for the benefit of the child or has a mental illness that similarly affects the capacity to share decision making” (paragraph 134).
In Gaitan & Spark & Hagan (2005) FamCA 879, Dawe J found that the maternal grandmother (with whom the seven year old child lived), could not communicate on a practical level about matters affecting the child’s welfare, and ordered that the grandmother and mother jointly share responsibility for long term decisions, excluding the father, other than an obligation to consult him in respect of the child’s education.
The concept of joint responsibility “carries with it the requirement to:-
(a)Consult the other parent in relation to the decision to be made about that issue; and
(b)Make a genuine effort to come to a joint decision about that issue.
These provisions mean that consultation and some discussion is required about the major long term decision, the responsibility for which is shared” (per Bennett J in Horton (2006) FamCA 1102. I agree with these remarks which invite the Court, when considering whether the presumption is rebutted in the best interests of the child, to consider the capacity in a real and practical sense, of the parents to effectively communicate.
In Bento & Bento (2007) FamCA 498 Burr J found that due to significant conflict between the parents and an inability to communicate effectively, the parents were to have equal shared parental responsibility save and except the mother was to have sole responsibility in relation to the children’ schooling and their non-urgent medical needs.
In Handley & Tranter (2007) FamCA 344, the presumption was rebutted and Moore J considered (at paragraphs 102 & 103) that:-
“I conclude that the child’s interests will be better served by one parent taking responsibility for certain major decisions rather than leaving exposed to the consequences of a continuation of the cycle of discard about what is best for the child that has marked the period of separation and even earlier.
The sole responsibility can be limited to areas of education, religious upbringing and health because not only does that clearly define the ambit of the sole responsibility but they are likely to be the more core issues requiring decisions in the child’s upbringing. Other issues such as her surname, for example, fall for decision here.”
It is trite to say that the exercise of discretion must be shaped by the facts of the particular case. Not all cases that involve high conflict and poor communication would complete the removal or limiting of one parent’s parental responsibility. For example, in H & M (2006) FamCA 1071, Strickland J, whilst acknowledging the negativity shown by the father, and the abusive and highly offensive text messages sent by both parties found “it is undoubtedly in (the child’s) interests for his parents to have an equal say as to major long term issues that affect his life. The mother has shown that she can put aside her feelings about the father and concentrate on what is best for the child”.
Mother’s relationship with daughters
L last saw her mother in October 2006 and N last saw her mother in March 2007. At July 2003, the evidence points to the mother being not only a very active and engaging parent but an impressive female role model for the girls. The deterioration has been relatively quick and extremely painful for the mother to both understand and cope with. Her general response was to blame the father and my view is, on the whole of the evidence, that she had a diminished insight into the effect of the events post mid 2003 on the older two children. Without being unduly harsh on the mother, the life of L and N as they know it was turned into chaos at an extremely difficult developmental stage for them. Some of the articulation of the dispute between L and the mother (see “PAF 10”; “PAF 11” and “PAF 12”) demonstrates the mother’s lack of sensitivity in my view.
The father, although portraying a role as supportive initially of the mother and consistently protective of the children, was himself trying to find a way to deal with the emotional upheaval. I do not accept however, that the father has sought to actively alienate the older children from the mother, as she asserts. However I am of the view that at times he found it difficult to disguise both his frustration and disappointment with the mother’s reactions to the events in 2003. That L has been openly disrespectful to the mother is acknowledged by the father. It presents as an ongoing negative influence on M. There was little probative value in “PAF 9” other than the cause further hurt to the mother.
When the mother’s deepening depression caused incidents of self harm, I can understand how difficult it may have been for the father to project a positive image of the mother. Mr Kirk submits that:-
“How simple would it have been for the husband to explain to his daughters the course of the wife’s struggles, to please her endurance, to gain their sympathy for her occasional lapses, to convince them to be understanding, to convince them that their mother needed their support as well – did he do any of that?
The answer is a resounding no.”
I disagree with this submission. I do not regard the task which befell upon the father as simple. Although at times he might have approached situations differently (for example, how he informed the wife of his intention to separate), it is difficult for me to judge the husband so harshly when put in such a conflict of loyalties.
The remediation of the relationship between the mother and her beloved daughters sadly is a “work in progress” and must await probably the mature reflection of adulthood.
The importance of this discussion is whether this history, leads the Court to a conclusion that the husband will be either unwilling or unable to facilitate M’s relationship with his mother. I do not believe that will be the case. In this regard I am conscious of the importance of such a finding. The Parliament by enacting s.60CC(4) (compatible with s.60CC(3)(c)) makes it clear.
It is a critical finding in the father’s favour which, if not made, would support the mother’s proposals. As observed below, Dr Harden says the father would support the children’s relationship with their mother.
Family Report – Dr Scott Harden
Dr Harden, a child, adolescent and adult psychiatrist, conducted interviews and observations of the family members in October 2006. He also had a range of further material as identified in his report dated 22 November 2006. The report was relied upon by the father, but
Dr Harden was not the subject of cross-examination.
It must be said of course, that by the time of the trial, the report was over 12 months old. Events had moved on from the date of his interviews, but this does not mean the report has no probative value. Ultimately it is a matter of weight for me as to how the opinions formed in November 2006 are of assistance to me now. It is not necessary for me to incorporate large portions of this family report in these reasons, however I make the following observations:-
a)L was articulate at the time of interview and was critical of her mother who she described as self absorbed and impulsive whilst she felt her father showed a cooler more rational personality. She wanted her views to be considered.
b)N expressed a concern about seeing her mother every day (the arrangement at that time), “partly because of the things she felt that her mother had done to the family”. She felt she had not received any support from her mother “in recent years” and was somewhat suspicious of the mother’s changed behaviour.
c)M, from the report, presented as a neatly groomed and polite boy with a cooperative attitude. He stated at times it was a bit lonely as his sisters were very busy with homework and his father was often helping them. His activities seemed fairly normal for a (then) eight year old. His missed the other parent when staying with one parent. Importantly, Dr Harden said that M “seemed to be less aware of the events of recent years”.
d)Dr Harden opined that the mother:- “probably meets diagnostic criteria for a personality disorder not otherwise specified with significant narcissistic features” and that “she clearly met criteria for a depressive disorder of either a major depressive type or an adjustment disorder type in the past”. She had, he says, deterioration in function for three years and he accepted descriptions of her during this period as “self absorbed, detached from the children and family, irritable and prone to unpredictable mood swings” and that the wife “has difficulty in seeing any flaw in the way that she dealt with things”.
e)Dr Harden says the father “did not meet diagnostic criteria for any psychiatric disorder at the time of review” and opined that he father “would support the children having a close and continuing relationship with Ms Fosbery, particularly if he is convinced that she does not pose an ongoing significant risk to their emotional well-being”. I have formed the same view now.
Dr Harden made some recommendations for M to increase his time with the mother to a “shared care system for these children” at that time but indicated it could work if the mother showed a “consistent pattern of predictable and responsible behaviour” for at least a six to twelve month period.
These comments are reflected in the reasons of Carmody J delivered when making the interim order on 29 November 2006. The order provided for extensive time between the child M and the mother during school terms:-
·After school on Mondays and Wednesday until before school the next day;
·After school on Friday until 5:00p.m. Saturday.
Neither parent says that the arrangement has been other than disruptive with multiple changeovers and adjustments to be made by the child. I agree, but it is clear that His Honour probably anticipated the interim order would not last as long as it did.
Evidence of Dr S
Dr S is the mother’s treating psychiatrist and has been so since
15 December 2004. She had prepared a number of reports and was the subject of cross-examination. Dr S’s most relevant evidence in respect of parenting issues was that:-
a)She does not consider the mother’s health would preclude her from caring for her son two days out of fourteen and that she could adequately meet his needs. Further, her health “will be positively benefited by being even more actively involved as a parent than she is now”.
b)She does not agree with the diagnosis of the mother by Dr Harden of a personality disorder. Her diagnosis is that the mother has a chronic adjustment disorder with narcissistic traits but not a personality disorder.
c)Once all the legal matters are finally closed Dr S is “hopeful” that her prognosis will continue to improve with a long term recovery hopefully achieved “between two and four years”.
d)It would not be wise for the mother to cease the therapeutic relationship which should continue for the next two years, but Dr S believes the mother would not cease the relationship.
I prefer the diagnosis expressed by Dr S, shaped by her lengthy therapeutic relationship and more recent observations, to that offered by Dr Harden. I also am satisfied that I can accept the other professional opinions recorded above by Dr S. In short, at the time of trial I find that the mother does not represent a risk to the physical and emotional well being of M.
Analysis
Relying on the findings I have made above coupled with the analysis of the competing proposals through the two tiered primary and additional considerations which follow, I have come to the conclusion that the best interests of M are served at this time by an order which broadly provides that:-
a)The parents have equal shared parental responsibility;
b)M reside with the father;
c)The child shall spend substantial and significant time with the mother each alternate weekend after school Thursday to before school Monday (extended if a Public Holiday) and in the other week after school Thursday overnight. The school holidays shall be shared equally;
d)The child shall be permitted to attend [S] School;
e)The usual specific orders shall apply.
I will direct that the solicitors for the father prepare an order in accordance with my reasons for consideration and pronouncement at 9:30 a.m. on Friday 15 February 2008.
I have decided that the presumption in s.61DA that equal shared parental responsibility is in the best interests of M should apply and is not otherwise rebutted. I am aware of the poor and ineffective communication which exists between the parties, but I believe these two highly intelligent parents are capable of improving that communication now that the litigation (on all fronts) is complete. The mother will have significant time with M and has a lot to offer in guiding, with the father, his future direction in life – as the parents did effectively for the older siblings before the events of 2003. I do not regard it as in M’s best interests that the mother be excluded from long term decision making.
Because the presumption shall apply I am required to consider making an order that M spend equal time with each parent. Neither parent seeks such an order; however that of itself does not inhibit me from considering an equal time regime. Although I have formed a view the parties could communicate on the larger more important long term issues – I find that on the whole of the evidence, sharing time equally would be unworkable. M needs a predominate base from where his daily routines emanate. In my view after consideration of the matters in s.60CC, it is in his best interests that he lives predominately with the father.
I am satisfied that M should have significant and substantial time with the mother and that it should be in the form proposed above. I believe it is in his best interests at this time.
Meaningful relationship with parents
M, unlike his sisters, currently maintains a meaningful relationship with both his parents. He did, to a large degree, avoid the full consequences of the family dysfunction because of his age at that time. The continual quite intensive order made by Carmody J, has ensured the mother has regular time with M which, as her functioning has improved, has meant M has had a greater opportunity to enjoy his mother’s special qualities. The father has been the consistent stable influence over this time and remains M’s primary male role model. Their relationship is intact and I believe the order I propose to make will preserve both of the critical child/parent bonds.
Protect the child from harm
I have formed the view that the mother does not present as a risk to M, nor do I agree the father is alienating M from his mother. The conflict between the parents does represent a continual risk that M could be exposed to ongoing parental disputes. Both parents are contributors to that risk. The father’s case is that as the child gets older he may “clash” with his mother in the same manner that the history shows has occurred with the older siblings. Although I cannot ignore that possibility, I find that M did not suffer the same sense of loss the daughters did. He does not seem to blame his mother for the effects on his life in the same way L and N have done.
Views
Although L and N were able to express clear wishes. The only independent capture of M’s views was undertaken by Dr Harden and that was over 12 months ago. Certainly the mother says the child shows a strong desire to remain with her becoming “clingy”, but I think any of the feelings expressed by M to each of his parents should be dealt with cautiously. He is more aware of the conflict now and he is likely to tell each parent what he thinks they want to hear.
Relationships
Although on balance I would be inclined to the view that prior to mid 2003 the mother was the primary carer of M, both of these parents had heavy work schedules and devoted time to their children when available. The mother’s mental unwellness post 2003 did make her detached. Even before separation this would have meant an increased parenting focus by the father. I believe that occurred such that by the time of trial the attachment that M holds to his parents is likely to be similar.
It is a factor which supports the father’s proposal that by remaining predominately with the father, the sibship relationship which M enjoys with L and N is more likely to be preserved. Even though the parents have clearly been through tough times, this sibship group have endured the same painful journey. Because of the lack of time the daughters spend with their mother, M’s important relationship with his sisters in the foreseeable future is only likely to be nurtured in the home of the father. I accept that the girls are at a quite different developmental stage with many more distractions and interests open to them, however I do not wish to further reduce the opportunity for their interaction with their brother which would be a consequence of the mother’s proposal.
I do not ignore the negative attitude the girls have to their mother. The notes of conversations between N and Mr M (see Exhibit 2) are alarming in their depth of anger. However I accept that the father understands the importance to M of shielding him from these adverse perceptions and remarks and believe he will do his best in the future to balance up these comments, if made.
Effect of change
Since final separation the child has predominately resided with the father and the intact sibship group. The mother’s proposal would change that arrangement. I do not think it is in M’s best interests to do so. I also accept that as he gets older his gender identification issues will, most likely, motivate him to seek more time with his father sharing male pursuits. Because the girls will really be less at home M will have greater opportunities to have these needs met by the father then might have been the case in the past. I regard this factor as strongly favouring the father’s proposal that M continue to reside with him.
Parental attitude and capacity
The mother points to the fact, which I accept, that she is more available to M. The father’s work commitments are certainly more onerous than those of the mother at this time, as she continues to rebuild her emotional strength and then her career. The father has adjusted his work hours to be more available. Both parents, in the past, have no doubt demonstrated to the children a strong work ethic and this is a positive attribute. I rely on Dr S’s assessment of the mother’s capacity to parent – but note that continuation of any prescribed medication and maintenance of the therapeutic relationship are necessary ingredients to a “full recovery”. Although each of these parents has strengths and weaknesses as parents, the comparison of their capacity and attitude does not establish a significant superiority – one over the other.
Again I would say that the order I propose will give the mother a little more time to work on her and her career options whilst maintaining the stability of the family unit which the father has done his best to preserve over recent times.
Making an order less likely to lead to further proceedings
Dr Harden in his family report and Carmody J in his reasons for the interim order both appear to opine that a more equal sharing of care for M could be an option in the future. I would not discount that possibility. All I have found is that now is not the time. I draw comfort from the reality that if further proceedings were contemplated in the future, pre action mediation through a Family Relationship Centre would be required. Also, as M gets older, he may be better able to articulate a considered view of his future needs and wishes. For the time being, he should be allowed the relative sanctuary of just getting on with the daily grind of school, sport and friends.
The order I propose to make will at least bring these proceedings to an end.
Schooling
I was not offered any significant evidence from the competing schools proposed which would differentiate the curriculums or special opportunity [S] School or [B] School offer M. I would find both institutions could offer a rounded and fulsome education. The mother says the parents had earlier decided that M attend [B] School. His sisters attended the adjacent [G] School. The mother says M is concerned about bullying at [S] School.
The parents decided he attend a small local parish school for his early primary education. The father desires to maintain the child’s catholic education. [S] School has closer proximity to his work and as the predominate carer that is a factor I am required to consider. I have no concerns that the father will make appropriate after school care arrangements as required. His elderly parents are not other than capable of providing occasional support in this way.
I would regard the remarks which M makes to his parents about his schooling with caution. The father acknowledges M has expressed a desire to go to [B] School but says he is not unhappy about going to [S] School. It is a great pity that M has been aware of the parents’ conflict about an issue so important to him. Doing the best I can on the limited evidence, and considering the principles enunciated by the Full Court in Re G: (Children’s Schooling) (2000) FamCA 462, I believe it is in the best interests of M that the father’s preference for [S] School be supported at this time. I believe that as the child gets older and his academic interests become clearer, these parents are capable of ensuring that M continues to attend a school through secondary levels which will meet his needs. That might mean, in the future, that [B] School becomes an option to be further considered.
Conclusion
For the reasons given the best interests of M are served by the order I propose. I accept neither parent suggested time in the “off week”, however for a child of M’s age I would be concerned if he was having a gap of more than a week in seeking his mother. The slight disruption to his routine by having, in effect, every Thursday evening during school terms with her is outweighed in my view by the benefit to him of doing so.
School holiday time is a special recreation opportunity and I could see no reason to limit the mother’s time with M to less than equal time.
Usual specific issues orders should be incorporated.
Financial matters
The history of transactions which occurred from about 1981 are set out at paragraphs 235 to 373 of the husband’s trial Affidavit filed 11 October 2007. The wife in cross examination accepted the husband’s chronology as broadly accurate. The husband is an accountant and his recordkeeping ability is not seriously challenged.
For context, I summarise the relevant chronology as follows:-
1962
Husband and wife born
1981
Husband purchases Property P home
1982
Wife purchases Property K unit
8 June 1985
Marriage/Cohabitation
Wife employed as a Pharmacist at [R] Hospital
Husband employed as an Accountant
Approximately 1985
Wife sells Property K unit – netts $15,000
1987
Property P home sold – netts $55,000
Parties purchase Property H home for $122,000 – renovations assisted by interest free loan of $93,00 from husband’s parents
1990
Husband becomes a partner
L born
1992
N born
1993
Property H home sold with nett proceeds of $237,000
Property C home purchased for $562,000 with borrowings of $325,000
1994 - 1998
Wife works for wages in Senior positions in Hospital Pharmacies
1998
Wife acquires first Pharmacy at [R] for $300,000
M born
2000
Wife acquires second Pharmacy at [A] for $1,040,000
2001
Wife acquired third pharmacy at [C]
2002
Wife acquires fourth pharmacy at [L] for $219,735
January 2003
Home mortgage discharged
23 July 2006
HIC/Federal Police raid home and pharmacies
February 2004
Wife sells [L] pharmacy for $100,000
March 2004
Husband receives inheritance from Aunt of $68,000
May 2004
Wife sells [R], [A] and [C] pharmacies for $1,956,870
Refinancing of aggregate remaining debt of $669,000 secured by wife over Property C property
December 2004
Wife becomes patient of Dr S
January 2005
MLC commence payments of approximately $10,679 per month under Disability policy (Taken out in October 2001)
February 2006
MLC payments cease
August 2006
Parties separate
April 2007
$123,714 paid to Official Trustee to release proceeds of crime charge on home
August 2007
Property C home sold for $2,350,000
September 2007
Proceeds of crime proceedings against the wife were dismissed and funds (with interest) of $123,714 released to the wife
Husband purchases home at Property A for $1,100,00 with facility of $1,150,000
As the reasons which follow seek to analyse and determine, the questions to be determined by me (within the matrix of the four step process identified in Hickey (2003) FLC 93-143is:-
a)Some disputes as to what constitutes the pool;
b)Whether an allowance applying the principles enunciated in Kowaliw (1981) FLC 91-092 should be made;
c)The wife’s claim for spouse maintenance.
Principles
As earlier mentioned the process of analysis in a property dispute is well settled and was most recently restated by the Full Court in Hickey (supra). It essentially involves a four stage process initially to determine, usually at the time of trial, the assets and liabilities of the parties. Secondly, by reference to s.79(4) to consider the respective contributions of a financial, non-financial, direct and indirect nature. Thirdly, to consider as directed by s.79(4)(e) the relevant s.75(2) factors and finally the Court is required to step back and look at the order it proposes to make to ensure that it does justice and equity to the parties in all the circumstances.
Pool of assets
Although I am aware the former matrimonial home at Property C has been sold, I am not aware of the nett proceeds that were available after discharge of commissions, legal expenses and the secured liabilities. In those circumstances, although an exact figure cannot be ascertained, I am content (as were the parties at the hearing) to adopt as a guide the agreed allowance for sale expenses (of $64,000) and the liabilities also agreed.
The areas of disagreement in respect of the pool, I determine as follows:-
MLC Policy
I regard the contractual rights under this policy as a financial resource available to the wife “in theory” – essentially because at this stage MLC have declined to make payments under the policy (beyond those already made to January 2006). It is not possible, on the evidence available to this Court, to determine with any necessary degree of certainty whether any action under the contract of insurance by the wife would be successful. I am more certain that such proceedings would be strenuously defended and would be costly to launch. If I was satisfied a successful claim could be made (which I cannot on the evidence before me), then the nett proceeds might notionally constitute a debt due to the wife and be included in the pool. The potential entitlements are dealt with me later in these reasons.
Legal fees paid
Consistent with decisions such as Farnell (1996) FLC 92-681, and NHC & RCH (2004) FLC 93-204, I am satisfied that the legal fees paid by the parties should be notionally added back in the sum of:-
- husband $100,278
- wife $68,981
I accept that the drawdown on the available flexi-mortgage facility to the husband of $120,000 and to the wife of $140,000 which they received in October 2006 and August 2007 were available for their discretionary expenditure.
The wife’s income post separation has been modest whilst the husband (although as I acknowledge, bearing the mortgage and other expenses), had a significant income which he now estimates to be in the vicinity of $160,000 nett for the 2006 financial year.
It is reasonable to infer that the wife did use a significant proportion of the drawdown (not otherwise used for legal expenses) on living expenses. The husband’s income was significantly higher and his need to use the balance of his drawdown for living expenses was modest if at all. I see no basis why the husband should be entitled to offset against the drawdown income tax which would properly be a change on his income – not this capital distribution.
It is proper in my view, that the proceeds recovered by the wife from ITSA should bear the costs of her solicitors Brian Bartley & Associates for their services relating to those proceedings. They were paid in a sum of $29,741, and should be set off against the refunded funds of $123,714 – a net of $93, 973. I do not have any evidence of the nett interest (which may have accrued on these funds since September 2007); although at paragraph 233 of her Affidavit the wife claims the sum of her solicitors Trust Account is $96, 021. I will adopt that figure.
Wife’s Credit Card
The wife says at paragraph 234 of her trial Affidavit that her credit card liabilities totalling (for the three cards) a sum of $58,012 were “utilised to meet payments of legal costs, living expenses, pharmaceutical and medical needs, health insurance.” This bland assertion in the context of her having available over $60,000 (after payment of legal costs) since October 2006 as well as funds at separation, is not sufficient to satisfy me that it was necessary to use her credit cards to meet reasonable living expenses over this period. I do not intend to include the wife’s credit cards as a joint expense in the pool.
For completeness, both experience Counsel in their final submissions contend that the parties modest superannuation entitlements be included in the one pool. I agree with this approach in this case.
I therefore (subject to the reservation as to the actual nett proceeds of sale of the Property C home), find the pool of assets to be as follows:-
Assets
Estimated proceeds of sale of Property C home
$2,286,000
Furniture
- husband
- wife
$22,213
$18,917
Mercedes Motor vehicle
$66,000
Husband’s business interests
$280,640
Husband’s nett loan accounts
$17,639
Balance of ITSA funds
$96,021
Shares
- [T] Swimming Club
- Sigma Pharmaceutical
$6460
$9,984
Frequent Flyer Points (as valued)
- Amex
- Qantas
$4968
$13,117
Superannuation
- husband
- wife
$34,861
$42,374
Legal expenses
- husband
- wife
$100,278
$68,981
Liabilities
National Australia Bank
- Flexi Facility
- HIC Secured Funds
- Cheque Account
- Business Loan
- Car Loan
$963,676
$128,622
$9995
$145,313
$89,627
$1,337,233
Nett
$1,731,220
I did not include the husband’s bank account of $9155 which arises from post separation earnings.
Contributions
In this relationship which spanned a period exceeding 20 years, the parties’ initial contributions were not significant. They each brought into the relationship a professional qualification and a strong work ethic. As I deal with below, they each supported the other in developing their careers.
The husband’s accounting career has been a consistent source of income throughout. He now enjoys an income which approximates $300,000 gross pa. He is good at what he does and works hard. His income has contributed to the lifestyle of the family and the extensive renovations to the family homes which have shown significant capital improvement (particularly the Property C home). He also contributed the inheritance from his Aunt’s estate. I do not ignore that benefit that flows from the $93,000 interest free loan from his parents. It was repaid relatively quickly from joint income (the husband says “draws” from his businesses), but it was still a help the family. The husband was, and remains, a devoted parent and although I regard the wife’s contributions as slightly superior as a homemaker and parent (at least until mid 2003), he did make a contribution when available despite his long hours of practice in his firm.
The wife, as the uncontroversial history demonstrates was energetic, capable and entrepreneurial. After rising to a senior level in hospital pharmacies, she identified an opportunity to work outside of the hospital in Australasia for an English company marketing products for use in nursing homes. She developed a higher profile in that industry.
A combination of this profile and expertise and the husband’s accounting skills saw this relatively young couple in 1998 plunge into their first purchase of a pharmacy. I have no doubt the husband was assiduous in his review of the finances of the business and subsequent acquisitions. The acquisitions were almost fully financed. It would have not been lost on the husband that this involved substantial risks; however the couple amassed four pharmacies over a period of four years. They were highly ambitious and the wife, although she had a number of staff, was still the supervising pharmacist. The wife also was a successful tenderer for the Queensland [W] – an organisation which operated approximately 14 nursing homes over Brisbane. Consistent with her entrepreneurial spirit, during this busy period (remembering the children were all quite young), the wife travelled to the United States and purchased a packaging machine for the packaging of medication into sachets. It cost $250,000. After developing a software programme for Australian use, she marketed that product receiving, she says, about $25,000 in commissions. She was working long hours; was often on call; completed a MBA and was a regular presenter at pharmacy conventions. The wife pays tribute to the husband’s contribution to the pharmacies at paragraph 78 of her Affidavit.
The events of mid 2003 caused the “Fosbery Empire” to crumble with devastating effects. It would be hard to imaging how such a high profile and successful team as the couple were, would be expected to cope with the public humiliation of press articles alleging she had “defrauded” the Pharmaceutic Benefits Scheme of $300,000. That no charges were ever laid against her and ultimately all funds secured to met this alleged fraud were released, it simply unbelievable.
Even though some pressures were obvious in the business prior to the police raid (see the note of March 2003 “PAF26”), the raid and publicity coupled with the other structural changes in the industry necessitated these highly geared businesses to be sold. Apart from the husband’s businesses, all the other assets were in the wife’s home. The Property C home was at risk. Whilst the wife’s stress induced condition deteriorated, I have no doubt the husband did all he could as well to “cut their losses”. They were required to consolidate loans and debtors to do so (including substantial credit card liabilities), which amounted to around $669,000. The husband’s cash flow from his practice was critical to saving the family from even more financial disaster.
From mid 2003, if not slightly before, the mounting pressures on the wife caused her to become more detached. I am satisfied this caused the husband’s contribution to the family to increase – to fill the gap in a sense for the wife’s emotional unavailability. The wife fairly concedes that he husband stood by her as they fought these unfair actions. The submission made by the wife’s Counsel that damages for malicious prosecution cannot be launched, whilst not supported by any evidence, seems to be accepted by the husband, and demonstrates starkly the unfairness of the situation created by the authorities.
There is a long line of legal authority which supports the view that in a marriage partnership, the parties are expected to take the good with the bad. This couple have faced extreme financial highs and lows. I am satisfied they both did their best.
I have come to the conclusion, which is contrary to the submissions of Senior Counsel for the wife, that an adjustment to the husband on the contribution based assessment is justified. This is not to penalise the wife for her mental illness – but to give proper recognition that the pool of assets would have been likely to have been further diminished without the husband’s resolute efforts from mid 2003. Since then he has also maintained payments on mortgages (increased from time to time to meet the parties’ needs and also the HIC demand) which enabled the Property C property to attract during a boom in the Brisbane property prices, a significant capital gain. He also carried the significant and increasing responsibility for the children, whilst I accept the family had the benefit of living in the house.
These issues couple with the other contributions of both a financial and non-financial character even over a long relationship persuade me that a contribution based division as to 55% to the husband and 45% to the wife is proper.
Section 75(2) factors
Perhaps it is to be expected when this couple has suffered so much that they both were prepared to blame the other for the demise. Couple this with the wife’s personality traits and, regrettably, it seems apparent that those deep seated feelings fuelled this litigation making it impossible to resolve by compromise.
Frankly, I would find it hard to judge either party so harshly. Unless one has walked in their shoes it would be difficult to know how one would react. In property cases, the law has for some years identified some principles which can be taken into account where:-
“monies lost by one party either during or after marriage as a result of a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets or as a result of reckless negligent or wanton behaviours which had the effect of reducing or minimising the value of assets” (see AJO v GRO (2005) FLC 93-218, Gollings & Scott (2007) FLC 93-319 at [65]).
The last factor arising from the off quoted observations of the Full Court in Kowaliw (supra) has been relied upon by the husband in his Counsel’s submissions which I reproduce as follows:-
“Against the cautioning of the husband, the wife acquired pharmacy businesses and a contract with the [W] that it was clear could not be serviced. The last two pharmacies and the contract were had by her against the husband’s advice (which as he was an accountant was expert advice). Further, the wife persisted in the business when it was clear that cash flow problems would make them unviable. Her explanation was one of “blame”, namely that it was the fault of the doctors who were not returning their prescriptions fast enough. This is a case where she has acted recklessly, negligently and wantonly with matrimonial assets.
The loss is two-fold. Had the pharmacy business not been extended as it was and had the wife been circumspect with respect to its management, then the parties would have as an asset, a pharmacy business. They do not. What they have lost cannot be quantified. The parties are left with a debt from the pharmacy business of $660,000.00 which, at the very least, they ought not to have.”
I have formed the view that the wife’s conduct does not activate these principles. There was a clash of business ideologies at times – of that I am certain. The husband, by his training and with his personality, was conservative and measured. He was more cautious then the perhaps overly optimistic and creative wife. However the parties did continue to work together (signing documents and the like) to secure continual debt to develop their potentially lucrative pharmacy businesses. I could not say their failure to do so was “negligent, reckless or wanton” – although clearly the husband now regards the failure to follow his prudent professional advice as the cause of the downfall. If the Kowaliw principles could be engaged whenever a person in business did not follow the advice of professional advisors, then that would open a floodgate of claims – especially in difficult economic times. In this case the husband, I accept wanted to support the wife and did so. He had concerns and expressed them. All of that is not unusual in marriages where parties work together to build a financial future. Disagreements often abound. Although the financial and emotional impact has been devastating, the behaviour of the wife does not come within the limited scope of the established principles set out above.
I have come to the view that the wife should receive an adjustment for the current disparity in incomes. The husband has a significant and secure income – sufficient for him to confidently borrow over $1.1 million in the midst of these proceedings to buy a new home. He says he plans to retire (or at least reduce his work commitments) by 2017 – when he turns 55. His commitments, both financially and emotionally to the three children who remain primarily in his care is a factor which otherwise reduces the adjustment I would make to the wife. It is unlikely that the wife, for some time, will make any significant child support contributions.
However, I agree with the submissions of the wife’s Counsel that, although the wife is immensely talented and highly qualified her capacity for employment is somewhat uncertain. A combination of the evidence of Dr S and psychologist Ms L persuade me I should accept he view expressed by Ms L that the wife’s “performance” in her cognitive function was well below expectation given her “educational and occupational” background and that:-
“if there is not marked improvement to Ms Fosbery’s intellectual and memory function I consider it would be inapparopriate for her to attempt to work in a:-
- position of responsibility such as a pharmacy;
- management positions, which require her to focus on a variety of tasks, communicate and retain information.”
In this regard Dr S opines:-
“While Ms Fosbery is currently coping with the ordinary activities of daily living she has reduced endurance, reduced capacity for new learning and reduced tolerance for stress. As matters stand she is, in my clinical opinion, entirely incapable of returning to work in any position for which she might be reasonably deemed trained or suitable.
Most difficult of all is to predict when this lady is likely to be able to return to work even on a graduated basis. From a clinical perspective she would need to be in much more robust emotional health and substantially improved cognitively. Before this can happen she will need to be weaned off her current doses of medications to much lower levels.”
In cross-examination Dr S, doing the best she could, I accept, suggested the wife would need a further 2-4 years to make a full recovery. Certainly, the relief of the HIC charges no longer being contemplated and now with the resolution of these proceedings (although not entirely as the wife would have wanted it to be), sets an environment for further improvement. Certainly the wife presents as an impressive person – her demeanour in the witness box belying her underlying psychiatric condition. She could, she acknowledges, do reviews of medication. She claims she is no longer depressed. She wants to return to work both to assist financially but she recognises for herself esteem and confidence. She has been dealt some cruel blows, but I sense a growing desire to succeed and regain her reputation.
I take all these factors into account but the certainty of the husband’s income compared to the uncertainties facing the wife compel an adjustment in my view of 10% in the wife’s favour – or said, in another way, the wife should have the first 20% of the pool – a sum of about $346,000. I regard this as proper.
I have not ignored the possibility of some return on the MLC policy. It is not clear to me whether the wife has the will to pursue further litigation. It will be expensive and no guarantee of success exists. Because of this uncertainty I propose to make an order which will require the wife to share with the husband, in the ultimate proportions, any nett payments that are recovered. The wife, at trial, submitted the husband should contribute to such litigation. I think for these parties that would be difficult to work as the wife must first decide whether she wishes to pursue an action and, if she does, she should have control of the litigation including instructing lawyers; compromising settlements etc.
If she does pursue a claim she will need to initially bear the costs of doing so. Any costs may be claimed against any successful recovery before sharing the nett amount with the husband. The uncertainty of this issue troubles me when considering the question of spouse maintenance as I set out below.
Just and equitable
Because of the uncertainties previously identified in knowing the exact amount held from the sale of the Property C home, I am not in a position (before receiving further submissions) to determine an “exact amount” which each party will receive from funds which I assume are currently invested.
The wife also may elect to purchase the Ford motor vehicle which she currently uses, which is property, as I understand the evidence, of one of the husband’s business entities.
The wife should receive 55% of the nett pool of assets, and the husband 45%. As a rough estimate this could amount to the parties receiving the following outcomes:-
Wife
55% of $1,731,220 amounts to $952,171 being:-
Furniture
$18,917
Balance of ITSA funds
$96,021
Sigma Shares
$9,985
Superannuation
$42,374
Qantas points
$13,117
Added back legal expenses
$68,981
$249,394
Approximate distribution from available funds
$702,777
$952,171
Husband
The husband’s 45% of $1,731,220 amounts to $779,049 being
Furniture
$22,213
Mercedes Motor Vehicle
$66,000
Business Interests
$280,640
Loan Accounts
$17,639
[T] Shares
$6,460
Amex points
$4,968
Superannuation
$34,861
Added back legal expenses
$100,278
$533,059
Approximate distribution from available funds
$245,990
$779,049
I anticipate the “available funds” would be in the region of $948,767 being the nett proceeds of sale of $2,286,000 less all secured loans (including the car) of $1,337,233. In my view, an order which achieves such a result is just and equitable.
Spouse maintenance
The mother maintains that she is unable to adequately support herself. The submissions made in respect of spouse maintenance were limited. Upon reflection, and in circumstances where I am unable to be certain as to:
a)How much remains for distribution from the sale of the Property C home; and
b)The intentions of the mother in respect of re-accommodation now that the decision in relation to M’s primary residence has been made.
I believe I will benefit from receiving further written submissions on the issue of spouse maintenance before I can finally determine that issue.
Because of the importance to the parties of receiving a decision in respect of M’s care arrangements, and the division of property, I have elected to deliver reasons in respect of those substantive issues today rather than further delay the reasons because of the issue of spouse maintenance.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
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