GARNER & GARNER
[2010] FamCA 252
•30 March 2010
FAMILY COURT OF AUSTRALIA
| GARNER & GARNER | [2010] FamCA 252 |
| FAMILY LAW – CHILDREN – whether it is in the best interests of the children for them to be in the care of the husband for one or two nights in an alternate week during school term FAMILY LAW – PROPERTY SETTLEMENT – assessment of relevant s.75(2) matters – issues of “waste” and legal costs paid – just and equitable orders |
| Family Law Act 1975 (Cth) |
| B and B, Family Law Reform Act 1995 (1997) FLC 92-755 Hickey and Anor & Attorney-General for the Commonwealth (2003) FLC 93-143 Gollings and Scott (2007) FamCA 397 Smith and Smith (1991) FLC 92-261 |
| APPLICANT: | Ms Garner |
| RESPONDENT: | Mr Garner |
| FILE NUMBER: | SYC | 4681 | of | 2007 |
| DATE DELIVERED: | 30 March 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Rose |
| HEARING DATES: | 22 & 23 April 2009; |
| WRITTEN SUBMISSIONS: | Wife: 15 & 22 May 2009; 19 August 2009; |
| ORDERS: | 23 April 2009; 16 July 2009; |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | M Bateman |
| SOLICITOR FOR THE APPLICANT: | Pritchard Law Group |
| COUNSEL FOR THE RESPONDENT: | D Dura |
| SOLICITOR FOR THE RESPONDENT: | Warren McKeon Dickson |
Orders
Parenting Orders
That the parties shall note the obligations created by this Order and the parenting Orders made this day and on 23 April 2009 AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexures A and B.
That the parties ensure that the children D born … July 1997, M born … June 2000 and E born … August 2001 (“the children”) spend an additional overnight period in the care of the husband in the alternate week during school term not the subject of the Orders made 23 April 2009 from after school on the day that soccer matches and/or training takes place or otherwise such particular day that the parties agree upon or failing agreement being Thursday after school and to continue until the commencement of school the following day.
That the parties may make arrangements for the children or any of them to spend alternative or other periods of time in the care of the husband regardless of the terms of the Orders made 23 April 2009 and this day as the parties may agree upon from time to time.
Property settlement Orders
That the parties forthwith join in the sale of the property situate at and known as P property in the State of New South Wales being the whole of the property described in Folio Identifier … (“the former matrimonial home”) by public auction conducted by an auctioneer agreed upon by the parties in writing or failing agreement as nominated by the President of the Real Estate Institute of New South Wales at a reserve price agreed upon by the parties in writing or failing agreement as nominated by the single expert previously retained by the parties PROVIDED THAT should there not be an offer to purchase the former matrimonial home at the public auction equal to or in excess of the reserve price then the parties shall proceed to sell the former matrimonial home at the best price reasonably obtainable by them.
That the parties apply the proceeds of sale of the former matrimonial home in payment of the following:
(a) Real estate agent’s commission and auction expenses.
(b) Legal costs of sale.
(c) Adjustment of rates.
(d) 71.85% of the remaining proceeds in favour of the wife.
(e) The balance of the proceeds in favour of the husband.
That the parties retain a legal practitioner to have the conduct of the sale of the former matrimonial home on their behalf and in the event of the parties failing to reach agreement within 14 days from the date hereof then they shall instruct the legal practitioner nominated for the purpose of this Order by the President of the Law Society of New South Wales.
That the parties shall divide the contents of the former matrimonial home in accordance with the document attached hereto and described as “proposed terms of settlement regarding contents of matrimonial home”.
Declare that subject to the Orders made this day each of the parties may retain for her or his sole use and benefit all items of personalty in his or her possession power or control respectively.
Declare that each of the parties is solely entitled to his or her superannuation entitlements respectively.
Procedural orders
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Garner and Garner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC4681 of 2007
| MS GARNER |
Applicant
And
| MR GARNER |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the parties sought parenting orders in relation to the children, as well as orders for property settlement.
On 23 April 2009 the parenting proceedings were largely resolved by way of consent orders to which subsequent reference will be made. The only outstanding issue is whether or not it is in the best interests of the children that they spend either one or two overnight periods with the husband in the designated alternative week in school term. Subsequent reference will be made to the consent orders and that remaining issue.
The parties cohabited for a period of approximately 18 years which commenced on their marriage that took place in 1987 and continued until they finally separated under the same roof on 18 May 2005. They have continued to live separate and apart from each other in those circumstances in the property at P (“the former matrimonial home”).
Absent evidence and information to the contrary from counsel for the parties, I have inferred that the marriage has not been dissolved.
The applicant (who for convenience I shall refer to as “the wife”) is 46 years of age. The wife is employed on a part-time basis as a teacher.
The respondent (who for convenience I shall refer to as “the husband”) is 50 years of age. The husband is employed as a work scheduler.
The parties’ three children (“the children”) are:
(a)D who is 12 years of age having been born in July 1997.
(b)M who is 9 years of age having been born in June 2000.
(c)E who is 8 years of age having been born in August 2001.
The children live with the parties in the former matrimonial home.
Historical background
The following are brief relevant historical matters.
On 16 August 2007 the parties were referred to family dispute resolution. Directions were made.
On 23 October 2007 it was noted that the parties were to attend upon a family consultant on a date to be fixed. Directions were made.
On 12 February 2008 directions were made.
On 15 May 2008 interim parenting orders were made by consent as follows:
Procedural orders
1.That during the hearing each party make full and frank disclosure of any fact which should be brought to the attention of the Court in relation to parenting and property settlement proceedings.
2.That no further application or response be filed by a party to the proceedings without leave of the Court.
3.That any order requiring service of any document during the hearing, unless otherwise directed, will require service pursuant to the Rules of Court.
4.That no party issue a subpoena in the case without first obtaining leave of the Court.
5.That no affidavit be filed by a party to the proceedings without leave of the Court.
6.That any affidavit filed and served with the leave of the Court only address the “specific issues” permitted by the order granting such leave.
7.That any affidavit filed pursuant to these Orders be in a format where each “specific issue” appears as a separate heading and the facts the witness desires to rely upon in relation to that issue appear immediately thereunder.
8.That no witness statement be served on a party without leave of the Court.
9.That any witness statement served with the leave of the Court only address the “specific issues” permitted by the Court order granting leave to serve the witness statement.
10.That any witness statement served pursuant to these orders be in a format where each “specific issue” about which the statement is permitted to provide information, appear as a separate heading and the facts the witness wishes to rely upon in relation to that issue appear immediately thereunder.
11.That the legal representatives for the parties ensure the case coordinator is advised of any event or circumstance which is likely to seriously impact upon the timely progress of these proceedings through the Court.
Parenting proceedings
12.That by consent interim orders are made in terms of paragraph 1 to 7 inclusive of the document entitled “Short Minute of Orders” annexed hereto.
Property settlement proceedings
13.That the parties file and serve all affidavits (including annexure of their respective financial questionnaires) upon which he/she proposes to rely in relation to property settlement proceedings on or before 4.00pm, 13 June 2008.
14.That the wife cause a list of documents, disclosed by her, to be forwarded the husband’s solicitor on or before 4.00pm, 6 June 2008.
15.That the proceedings be listed for callover before the Hon. Justice Rose at 10.00am, 27 June 2008 for the purpose of:
(a)the outstanding issues to be determined,
(b)the readiness of the matter to proceed to hearing, and
(c)provided there has been compliance with directions then the fixing of dates for hearing.
The following notations were made:
A.The case for each of the parties in relation to contributions is that contributions be assessed as equal. (Emphasis added)
B.In relation to Notation A the parties’ respective affidavits will not provide extensive detail on contributions.
C.The most significant matters pursuant to s75(2) are the care of the children by each of the parties and their respective earning capacities. (Emphasis added)
D.In the event of agreement not being reached in relation to the current market value of the former matrimonial home the single joint expert previously retained by the parties, Mr [W] will be retained to provide an update of his previous valuation on a date to be determined close to the date fixed for hearing.
E.The husband at this stage does not consent to the Less Adversarial Trial procedures being utilised in the pending parenting proceedings. (Emphasis added)
On 27 June 2008 the parenting and property settlement proceedings were consolidated. Directions were made.
On 10 October 2008 the family report was released to the parties.
On 12 November 2008 interim parenting orders were made by consent as follows:
1.That by consent interim parenting orders and notations are made in accordance with the document entitled “Short Minute of Orders” annexed hereto.
2.That the proceedings are stood over for mention at 10.00am, 14 January 2009 for the purpose of assessing the issues if any that remain in relation to the parenting proceedings, directions in relation to affidavits and subpoenas, and if possible fixing the matter for hearing on a consolidated basis or as otherwise directed.
On 14 January 2009 the parties were required to attend further counselling sessions with Ms B, family consultant. Directions were made.
On 23 February 2009 an independent children’s lawyer was appointed. The hearing of the consolidated proceedings was fixed for three days commencing 27 April 2009. Directions were made.
The following Notations were made:
A.That the issues for determination in the parenting proceedings are:
i)Relationship between the children with each of the parties and any other significant persons;
ii)The capacity of the parties to provide for the physical, emotional and intellectual needs of the children;
iii)The likely effect upon the children of their separation from the mother;
iv)The mothers proposal to live in Brisbane and the effect upon their relationship with the father should they be able to relocate with the mother to Brisbane;
v)Whether the presumption of equal shared parental responsibility has been rebutted on the best interests of the child ground in s61DA(4); and
vi)Whether it is in the best interests of the children that there be an order for sole parental responsibility in favour of the mother in relation to major long-term interests including religious and cultural upbringing, education and her proposal to live with the children in Brisbane.
B.That an Offer of Settlement will be provided in writing by the mother’s solicitor to the father’s solicitor on or before 2 March 2009.
On 9 April 2009 a family report was released to the parties.
On 17 April 2009 by consent the appointment of the independent children’s lawyer was discharged.
On 23 April 2009, by consent final parenting orders (“the consent orders”) were made as follows:[1]
[1] Exhibit 3
1.That by consent, orders and notations are made in accordance with Exhibit 3 entitled “Terms of Settlement” as annexed hereto.
2.That the parties shall note the obligations created by the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.
4.That these proceedings are adjourned part-heard to 2.15pm 15 May 2009.
Notations:
A.That on the resumption of the hearing an agreed Joint Balance Sheet will be required to be tendered which will provide possible amendments to the previous draft dated 21 April 2009.
B.That counsel for the wife will tender a costs memorandum in accordance with the Rules.
C.That either the agreement in relation to household furniture and contents will be documented or otherwise the Court will be informed of the precise items which are not the subject of agreement and the evidence to support each party’s case in that regard.
D.That a written outline of submissions is to be provided.
Terms of Settlement
By consent Court orders that:
1.All previous parenting orders, in these proceedings, are discharged.
2.The Respondent Father shall spend time with the Children, [D], born on […] July 1997, [M], born on […] June 2000 and [E], born on […] August 2001, hereinafter collectively referred to as the ‘Children’:
(a)during school terms:
(i)every second week, commencing on Thursday 30 April 2009, from after school until before school on the following Monday, and
(b)on Father’s Day from 5.00pm Saturday immediately before Father’s Day until 9.00am, or before school, the following Monday,
(c)for one half of the school holiday periods at times to be agreed between the parties and failing agreement for the first half in odd numbered years and the second half in even numbered years and years ending in zero,
(d)at Christmas from 5.00pm Christmas Eve to 11.00am Christmas Day commencing in 2010 and in each alternate year thereafter,
(e)at Christmas from 11.00am Christmas Day until 5.00pm Boxing [sic] commencing in 2009 and for each alternate year thereafter,
(f)as otherwise agreed between the parties.
3.That the Father’s time with the children on the Mothers Day weekend shall be suspended from 5.00pm Saturday immediately before Mother’s Day so that the children can spend time with the mother on that Sunday.
4.That each of the parties shall be at liberty to communicate with the children via telephone at any time provided that it is within a reasonable hour and for no more than once a day and for the purposes of telephone communication each party shall provide the other with a contact telephone number to call the children on, on each occasion and in the event that the children miss a telephone call from one of the parents the parent with whom the children are spending time shall cause the children to return the missed call as soon as possible.
5.When the children are not otherwise to be collected by the Respondent Father from school, at the commencement of the periods of time that the Respondent Father spends time with the Children, the Applicant Mother shall deliver the Children to the Respondent Father’s home.
6.When the children are not otherwise to be returned by the Respondent Father to school, at the cessation of the periods of time that the Respondent Father spends time with the Children, the Respondent Father shall deliver the Children to the Applicant Mother’s home.
7.The Applicant Mother shall spend time with the Children at all times other than at times that these Orders provide that the Respondent Father shall spend time with the children.
8.Each of the parties has equal shared parental responsibility for each of the children in respect of major long term issues.
9.The Respondent Father shall have the sole responsibility for making decisions in relation to the Children on issues which are not major long term issues during periods when the Respondent Father is spending time, in accordance with these Orders, with the Children.
10.The Applicant Mother shall have the sole responsibility for making decisions in relation to the Children on issues which are not major long term issues during periods when the Applicant Mother is spending time, in accordance with these Orders, with the Children.
11.The parties shall notify each other in the event of any illness or injury occurring to any of the children whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the respective child and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning the child.
12.The [sic] each of the parties shall be permitted to liaise directly with the children’s school and sporting bodies to obtain any necessary information about the children’s progress and each party shall forthwith authorise the school and sporting bodies in writing to facilitate this.
13.That each of the parties shall forthwith authorise the Principal of any school attended by the children to provide the other with copies of the children’s school reports, newsletters, notices as they fall due and inform both parents of any school activities which the parents are invited to attend.
14.That the parties shall keep each other informed of their residential addresses and home and mobile contact phone numbers and provide the other party with at least one (1) month’s notice in advance of any proposed change of those contact details.
15.Major long-term issues are to be discussed between both parties and agreed a minimum of six (6) months prior to the change taking place. Major long-term issues include, but are not limited to, change of residential location of the children, change of any of the children’s Schools, Children’s commencement or changes of attendance to High Schools, or Colleges, or Universities and in the event of no agreement being reached the parties shall attend upon an approved mediation facility for assistance in resolving the dispute prior to the commencement of any further proceedings.
16.That neither party shall denigrate the other and/or any religious or spiritual belief of the other party in the presence and/or hearing of the children and shall use their best endeavours to ensure that no other person does so.
Notations
17.It is noted that the [sic] in the event that either of the parties intends to relocate with the children at a date in the future then that party will not do so without the prior consent of the other party or further Order of the Court.
18.It is further noted that the parties will continue to facilitate the children’s upbringing in the Christian faith.
On 15 May 2009 directions were made for the lodgment and service of written submissions.
1.That supplementary written submissions may be lodged and served noting the date and time of service on the front sheet by 5pm 22 May 2009.
Notations:
A.That supplementary written submissions be lodged by email to the Associate to Justice Rose.
B.That the supplementary submissions refer to the agreement or lack thereof reached in relation to household furniture and contents.
On 11 June 2009 leave was granted to the wife to re-open her case. Directions were made. The hearing of the wife’s application to re-open the case was fixed for 10.00am, 16 July 2009.
On 16 July 2009 the following orders and notations were made:
1.That the Wife be granted leave to re-open her case for the purpose of adducing the evidence of the Husband’s income tax returns for the years 30 June 2005 to 30 June 2008 inclusive and his written estimate of tax refund incorporated in her affidavit sworn 5 June 2009.
2.That the Wife lodge with the Associate to Justice Rose and serve a true copy of her income tax return for the year ending 30 June 2008 and written estimate of tax refund in her favour on or before 4pm 23 July 2009.
3.That the Wife have leave to issue a subpoena endorsed by Justice Rose directed to [Mr M], Accountant, to produce the documents called for, returnable before a Registrar on a date prior to 12 August 2009.
4.That counsel for the Wife lodge and serve a further supplementary written submission limited to the issues of the late disclosure of each of the parties of income tax returns and estimates of tax refunds on or before 4pm 19 August 2009.
5.That counsel for the Husband lodge and serve a further supplementary written submission in relation to the same issues together with the treatment of potential tax penalty likely to be imposed upon the Husband by Orders of the Local Court on 12 August 2009, such written submission to be lodged and served on or before 4pm 26 August 2009.
6.That counsel for the Wife may lodge and serve any written submission in reply on or before 4pm 2 September 2009.
7.That judgment will continue to be reserved pending the receipt of such written submissions and the further evidence the subject of these Orders.
8.Costs reserved.
The legal representatives were required to attend to my Associate being furnished with a typescript of orders to be made by consent following upon leave having been granted to both parties to re-open their respective cases.
On 17 December 2009 orders were made by consent granting leave to the parties to re-open their cases for the purpose of evidence being received as noted in the attachments to the orders of tax refunds received by the husband for the financial years ending 30 June 2005 to 30 June 2008 inclusive and the tax refund received by the wife for the year ending 30 June 2008. In addition, leave was also granted to the parties to re-open their cases for the purpose of receiving evidence of a recognizance entered into by the husband on 12 August 2009 in the Local Court following his offence having been proved of failing to furnish particular income tax returns. The terms of the recognizance required him giving security without sureties in the sum of $500.00 and to be on good behaviour for a period of two years. The recognizance was also attached to the orders.
PARENTING PROCEEDINGS
Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)
Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
A Court must regard the best interests of the child as the paramount consideration.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in ss 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in s 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects. In substance, they include the benefit to the child of its parents having:
a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children. (Emphasis added)
The principles underlying those Objects, in summary, include:
(a) a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.
It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” (emphasis added). To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[2], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[2] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.
Relevant matters pursuant to s.60cc
Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[3] The exception is found in s 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[3] Section 60CC(1)
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[4]
[4] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Fortunately, the second primary consideration is not relevant in these proceedings.[5]
[5] Section 60CC(3)
Consequently, I propose to make findings of fact in relation to matters that are signposted in s 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.
Relevant matters pursuant to s.60CC(3)
As is apparent from the parenting orders made by consent on 23 April 2009[6] all issues of substance were agreed upon with the exception of whether or not it is in the best interests of the children that they spend either one or two nights in the care of the husband during the alternate week in school term. That issue was the subject of submissions.
[6] Exhibit 3
Order 2(a)(i) of the consent orders is in terms set out in paragraph 22 hereof:
It is unsurprising that the evidence in relation to this outstanding discrete issue is limited due to the more complicated issues which were the subject of extensive evidence by the parties and the family consultant. Fortunately, for the children and the parties, those matters were resolved between the parties very much to their credit.
The oral evidence of the wife recognised from her viewpoint that it was important for the parties to implement the regime of parenting to which they have agreed in an implicit, constructive manner. The wife proceeded to reiterate her willingness to support arrangements in that fashion. So far as whether in the alternate week, the period of time with the husband to be spent by the children in his care should be one or two nights, the wife did not elaborate on her preference to any real extent. However, the wife did state that she considered the Tuesday night including after school for soccer would be suitable from her viewpoint and that a second day should be a flexible arrangement to be entered into between the parties. The wife emphasised that she “wants to support the children”. In addition, the wife stated that she was content for the husband to have responsibility for soccer training and matches.
The husband during the course of his oral evidence considered it to be unsatisfactory that the alternate week has one night only for the children to be in his care. In that regard, the husband stated that the most appropriate time, and one which would be least disruptive would be for them to be with him for two successive nights.
With regard to the agreed regime the husband was of the view that Order 2(a)(i) of the consent orders represented substantial time with the children. The husband already emphasised the flexibility in his working hours.
Expert evidence was given by Ms B (“the family consultant”). That evidence comprised her two Family Reports dated 7 October 2008 and 9 April 2009 being Exhibits 4 and 5 respectively as well as oral evidence.
Exhibit 4 is a report that is rather aged having regard to the completion of the evidence in the middle of 2009. Exhibit 4 dealt with the substantive issues identified in it, including the difficult matter of the mother’s then proposal to relocate with the children to live in Queensland. Consequently, whilst the “recommendations” did make provision for the children to live with the husband in alternate weeks during school term being week one from after school Thursday until the commencement of school on Monday, and in the alternate week from after school Thursday until the commencement of school on Friday morning, which are of relevance to the remaining issue for my determination, the background to that recommendation had as its focus issues which are no longer in contention. Consequently, for that reason and the age of Exhibit 4, I do not attach any weight to it. Indeed, submissions made by counsel did not refer to Exhibit 4.
Exhibit 5 is an updated family report. The essential focus of that report is the same difficult and complex issues which were the subject of Exhibit 4. The issue of the wife’s proposal that the children live with her in Brisbane overshadowed to a large extent the remaining issues with which such a proposed relocation was inexorably intertwined.
Whilst Exhibit 5 reviewed the issues to which I have referred, it did not include any relevant recommendations to the remaining issue with which I am now concerned. That is understandable as the parties had not at that stage reached the agreement reflected in the consent orders.
During the course of her oral evidence, the family consultant emphasised the sensitivity and difficulty in making predictions in relation to the circumstances in which each of the parties may parent the children in the future as the children had yet to experience the physical separation of themselves from one parent or the other, as well as the physical separation of the parents. Indeed, the family consultant emphasised that many significant aspects of parenting in terms of predictability and impact upon the children are “speculative”. That was underscored by the family consultant’s lack of knowledge as to how the children, particularly the eldest child, was likely to react and cope with the change of no longer living with both parties.
The family consultant emphasised that the wife has been the primary parent who organises the children’s activities. However, as between the parties, co-operation, communication and goodwill were essential and in terms of living arrangements it is “not good for children to feel living out of a suitcase”.
The family consultant also emphasised that there will be even a greater necessity than at the present for the parties to reach agreement in relation to ongoing parenting matters as the children will experience a settling-in period following the physical separation of the parties and each child will need to react to changes in his or her own way.
The family consultant, whilst recognising that “both parents love the children very much” so far as periods of time that the children live with each party “any combination of days may be disruptive”. The matter of the children being disrupted in terms of the movement from care of one parent to the other, the family consultant considered this to be an ongoing issue which the parties would need to realistically view in terms of the commitment that each could actually make.
Conclusion
I have determined that it is in the best interests of the children that they spend one additional overnight period with the husband during the alternate week during school term as well as such additional overnight and/or other period as the parties may agree upon. My reasons are as follows.
The husband acknowledged that the consent orders do provide for substantial and significant time for the children to spend in his care. Nonetheless, the husband has sought an additional period of two consecutive overnights in the alternate week. Implicit in the husband’s approach is his close and loving relationship with the children. There is no issue that each of the parties loves the children and is devoted to their best interests.
The oral evidence of the wife is that there be a regime of parenting which is able to be carried out in a constructive manner with arrangements being made in concert between the parties which support the ongoing sport and other activities and interests of the children with the least disruption. It was clear to me from the wife’s evidence and the tenor of it, that such an approach was of greater importance than whether there were one or two nights that the children be in the care of the husband during the alternate week. The wife did indicate that she was amenable to the husband having responsibility for soccer training and matches.
The family consultant’s evidence was brief in relation to this particular issue. The family consultant emphasised the necessity for the parties to reach agreement in relation to ongoing parenting matters as they may arise due to the inevitable physical separation of the parties and the adjustment that the children will have to make to that situation and that they will no longer have available to them the care to varying degrees of each of the parties. That will arise following upon each of the parties having his or her own separate accommodation with the children to primarily be in the care of the wife.
In view of the significant changes that will occur in relation to the matters referred to in the last paragraph, and of necessity the “speculative” nature of making recommendations so far as the family consultant was concerned due to unknown factors of location, separate accommodation, the manner in which the children will adjust to it, and the new regime of separate parental care which will need to be implemented, she did not make a recommendation that indicated a preference for one approach as opposed to another.
I have given considerable weight not only to the family consultant’s evidence which I have summarised in the preceding paragraphs, but also the difficulties in reasonably anticipating the needs of each of the children to have stability and routine with the least disruption as possible given the changes in their future lives to which reference has been made, but also ensuring the continued involvement of the husband in his parenting of them. The husband has been very involved in the two eldest children’s soccer training and matches as well as the care of the youngest child.
The wife supports the continuation of that approach as well as indicating her flexibility for any additional periods which presumably are to take into account the future constructive and reliable arrangements for ongoing parenting between the parties with flexibility to take into account the important physical and emotional changes in the lives of the children with which they will have to adjust in the near future.
Those are important factors which cannot as yet be reasonably ascertained due to such unknown matters as when the former matrimonial home will be sold, the places of the new accommodation for each of the parties, the distance between residences, and the quality of the adjustment that will be made by each of the children to the various changes with which they will have to contend. The eldest child in particular has had significant health issues of which both parties are deeply cognisant. The extent to which those issues may be a factor in that child coping with the new changes in his life cannot yet be anticipated. I infer from the evidence given by each of the parties including reports annexed to affidavits that stability and routine are important matters for the child. I trust that the parties are sensitive and responsible enough to seek further advice jointly from the health professionals who know the eldest child best for the purpose of implementing such changes in his care that they consider appropriate based on such advice and their knowledge of him.
I will make an order that allows complete flexibility for the parties to make substituted and/or different arrangements for parental care by each of them for the children or any of them so that the changes in the lives of the children that will occur in the near future can best be accommodated without strict adherence to a parenting regime which I have determined is in their best interests at the present time, but which may not be in the future. The parties will need to take responsibility in that regard without the need for a court to structure future parenting arrangements after the changes have taken place.
I have concluded that the additional overnight period in the alternate week commence from after school on the day that soccer matches and/or training take place, or otherwise such particular day that the parties agree upon or failing agreement, being Thursday after school and to continue until the commencement of school the following day. Such an order will take into account changes to the sporting commitments or should neither of the two eldest children be engaged in that sport any longer, as well as such periods during school term when such sport is not available to them.
PROPERTY SETTLEMENT PROCEEDINGS
Relevant legal principles
It is now well established that generally speaking the approach to be taken to determination of property settlement proceedings, concluding with an order that is “just and equitable”, represents four steps.
The first of which is that the Court should determine the property and financial resources of the parties at the date of the hearing.
Secondly, determine the nature and extent of the respective contributions made by each of the parties whether financial or non financial, including contribution to the welfare of family in the role of home-maker and parent.
Thirdly, determine and assess the relevant matters pursuant to s 75(2).
Fourthly, consideration of orders, if any, which should be made that are just and equitable.[7]
[7] Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143
I will now proceed to make findings in relation to the property of the parties, their respective financial and non-financial contributions and relevant matters (if any) pursuant to s 75(2) of the Act. In addition, I will make findings in respect of the issue of “waste” raised by the applicant.
The agreed balance sheet of the parties’ net property and financial resources including superannuation entitlements is in evidence as Exhibit 9. Exhibit 9 is reproduced as follows:
Ownership Description Wife’s Value Husband’s Value Requires Expert
EvidenceAssets J [P property] (FMH) $540,000.00 $540,000.00 no H St George account $2,713.00 $2,713.00 no H […] Qantas shares $4,629.00 $4,629.00 no H […] AXA shares $2,409.00 $2,409.00 no H […] Telstra shares $203.00 $203.00 no H […] Wentworth Mutual shares $41.00 $41.00 no H Vectra 1997 $4,000.00 $4,000.00 no H Torana 1975 $1,500.00 $1,500.00 no H Business equipment & computer unknown NIL no H [S] P/L $0.00 $0.00 no W St George accounts $32,753.00 $32,753.00 no W [T] Investments $13,000.00 $13,000.00 no W […] Telstra shares $963.00 $963.00 no W […] IAG shares $1,241.00 $1,241.00 no J Household contents $2,500.00 $2,500.00 no W Toyota Camry $4,850.00 $4,850.00 no Addbacks H Costs on self improvement activities $14,701.00 $0.00 Husband’s legal fees $43,325.98 NIL Liabilities J Mortgage $1,290.00 $1,290.00 H St George personal loan $12,266.00 $12,266.00 H Probate legal fees $25,840.00 $25,840.00 Superannuation Member Fund & Interest Wife’s Value Husband’s Value Expert H AXA NIL NIL no H Energy Industries Super $8,026.00 $8,026.00 no W Hesta Super $40,497.00 $40,497.00 no W Local Government super $2,135.27 $2,135.27 no H Recruitment super NIL NIL no H AMP $193,321.00 $193,321.00 no Financial Resources H Share of mother’s estate no less than $244,000.00 unknown no $244,000.00
Add-backs
The first item for consideration and determination is the amount of $14,701.00 described in Exhibit 9 as “costs on self-improvement activities” being costs incurred by the husband.
The case for the wife is that between 1990 and 2007 the husband attended what she describes as “personal development” courses or seminars both within Australia and overseas at a total cost of $106,072.88. This expenditure was contended to amount to “waste” as referred to in the relevant authorities.
The wife alleges that the expenditure by the husband of that amount in the circumstances of expenditure for individual courses and seminars otherwise detailed by her in Annexure “D” and Exhibit “VCG1” to her Affidavit sworn 25 June 2008 amounted to “waste” in that it was irresponsible financial conduct due to various circumstances. Those circumstances included that the husband “never applied any of the concepts espoused at the seminars in any money making or commercial way”[8]; the wife did not agree to certain of the expenditure and expenditure by the husband, at times, was in circumstances that the parties could not financially afford due to more pressing financial commitments.
[8] Affidavit sworn 25 June 2008 para. 12
The wife was cross-examined in relation to her affidavit evidence. With regard to seminars in the period 1990 to 1994 the wife conceded that she “probably” did not know if the expense was a waste of money.
With regard to three seminars in the period 1994 to 1997, the wife’s evidence was that it was agreed between the parties that both would attend and use joint funds for that purpose. Indeed, the wife attended two seminars and did not attend the third one as her mother was in a poor state of health. Nonetheless, the wife’s opinion was that the two seminars “were a waste of money” and “a lot of hype”.
With regard to a seminar in 1998 comprising of three courses described as “Date with Destiny” it was agreed that both parties attend. Funds came from joint funds.
With regard to a course in late 1998 or in 1999 described in “Life Mastery” the husband attended whilst the wife did not. During his absence the wife stayed with friends as part of coming to terms with the death of her mother. The wife’s further evidence was that the cost of $5,226.65 should be attributed to the husband as she did not attend.
There was a course or courses in 2000 to 2001 described as “Wealth Mastery”. The wife stated that she did not attend as she was caring for the two children that the parties then had. The wife further stated that she could not recall if she opposed expenditure.
In 2002 a seminar was held in Brisbane described as “Healing Force” at a cost of $11,507.00. The wife’s evidence was that she did not agree to the husband attending all of the courses comprised in the seminar. The wife acknowledged that she, the husband and the children travelled to Queensland in order to coincide with the Brisbane seminar and that they stayed at a Resort. The wife was not sure if the expenditure for such accommodation was part of the overall cost of $11,507.00.
The wife’s further evidence was that certain expenditure described as “various” was so described by her as she was unsure if the husband actually attended as he did not always make clear what he in fact was doing or intended to do in that regard.
The wife acknowledged that she did support the husband attending certain courses in the period 2002 to 2005 except for the course in 2004-2005 described as a course held in South Africa at a cost of $13,730.00. The wife’s evidence was that she did not support the husband attending that course and certainly not the expenditure of the cost due to the family having insufficient money for food. The wife claims that, at the relevant time, she was receiving Centrelink benefits which were reduced due to the failure by the husband to lodge several years of income tax returns.
In addition, the husband had withdrawn “emergency funds” of $2,000.00 apart from $6.00 utilised for the purpose of the overseas seminar travel and expense. Part of the background to the wife’s concern was that the husband had been drawing down on the parties’ mortgage account to meet expenses associated with one or more of the courses thereby increasing the mortgage debit balance. In addition, the parties were put under pressure to meet the cost of utilities such as electricity.
The wife’s further evidence was that the husband obtained a loan to pay for the “Africa trip” as the wife would not agree to dawn down funds for that purpose. The loan at the time was taken after the husband had become unemployed.
The wife agreed that subsequent to the separation of the parties so far as she was aware funds for the husband’s travel and courses were met from his funds derived from earnings.
The husband gave oral evidence in relation to this particular issue. He contended that the wife attended some of the relevant courses in the period 2000 and 2002. The husband conceded that the wife did not support payment from marital funds and that in about 2003 the wife started objecting to the use of “shared funds”, that is, redraws from advance payments from the home loan account. The husband stated that in some instances he borrowed money and in other circumstances he utilised part of his wages.
The husband emphasised that the personal development courses were relevant to the business conducted by him through S Pty Ltd. That company realised a small net profit in 2003 and then suffered subsequent losses.
The husband’s further evidence is that the wife “became involved” in the courses up to September 1998.
The husband further stated that in 2000 he travelled and participated as “crew” in the “wealth mastery course”. In that regard, the husband paid $1,537.84 to American Express.
Amongst overseas travel for the purpose of attending various courses, the husband stated that the parties both attended a course in California in about 1998. With regard to attending a course in Africa to which earlier reference has been made, the husband borrowed funds which were combined into the current “St George loan” of which approximately $1,000.00 was his “Africa” debt.
Counsel have each made extensive submissions. I find that the only expenditure which falls within the interpretation of “waste” due to it being reckless or irresponsible financial conduct by the husband is the amount of $13,730.00 in relation to the course held in South Africa to which earlier reference has been made. I am not satisfied on the balance of probabilities that the amount of approximately $1,000.00 referred to in the last paragraph was in addition to the sum of $13,730.00 or was part and parcel of that amount. The expenditure incurred by the husband in relation to the course in South Africa was at a time when the parties were under severe financial pressure. In that regard, I accept the evidence of the wife earlier summarised by me. I am not satisfied that in those circumstances it was reasonable for the husband to incur that expenditure for the purpose of participating in the course in South Africa given that there was no discernible benefit to the parties and their children by him doing so, especially in the circumstances to which I have referred. Consequently, the amount of $13,730.00 will be included as a notional asset for the purpose of a finding as to the net property of the parties, excluding superannuation entitlements and the financial resource otherwise described in Exhibit 9.
It became apparent that the wife’s case in relation to “waste” allegedly due to the husband’s use of funds was substantially whittled down given the contrast between the amount contended for being $106,072.88 as opposed to the disputed add-back of $14,701.00 referred to in Exhibit 9. No doubt that was as a result of the wife herself either participating in some of the courses or otherwise the husband doing so with the wife’s support or acquiescence.
With regard to the husband’s paid legal fees of $43,325.98, I have concluded that such amount will be considered a notional asset for the purpose of calculating the net property of the parties for the following reasons.
Whilst a large proportion, if not the whole of the subject amount, was generated by the husband from his income subsequent to the separation of the parties for payment of legal fees, there are other relevant circumstances.
The parties have lived separate lives albeit under the same room in the former matrimonial home. At the time of their separation on 18 May 2005, the children were then aged 7, 4 and 3 years respectively. The parties and the children have continued to live together in the former matrimonial home. The parties have applied their income in meeting living expenses and payment of liabilities apart from contentious issues of expenditure by the husband to which reference has been made. At times, one or both of the parties have been under financial pressure especially the wife.
It is obvious that at the time when the husband had funds at his disposal derived from income, such funds at that time represented an asset in his hands. That asset in turn was applied by him to meet legal fees. The wife made a significant indirect contribution to the accumulation of those funds due to the contributions she made as a homemaker and parent and her own financial contributions derived from earning income and applying that income to living expenses benefiting the children and her. Consequently, I have applied the guidelines provided by the Full Court in Gollings and Scott[9] which emphasise the discretion of the trial Judge and matters that are relevant to the exercise of that discretion.
[9] Gollings and Scott (2007) FamCA 397
Revised property of the parties
The net property of the parties and their financial resources as well as superannuation entitlements described in Exhibit 9 and the subject of my findings in relation to the issue of “add-backs” is as follows.
J P property (FMH) $540,000.00 H St George account $2,713.00 H Qantas shares $4,629.00 H AXA shares $2,409.00 H Telstra shares $203.00 H Wentworth Mutual shares $41.00 H Vectra 1997 $4,000.00 H Torana 1975 $1,500.00 H Business equipment & computer unknown H S P/L $0.00 W St George accounts $32,753.00 W T Investments $13,000.00 W Telstra shares $963.00 W IAG shares $1,241.00 J Household contents $2,500.00 W Toyota Camry $4,850.00 H Costs on self improvement activities $13,730.00 Husband’s legal fees $43,325.98 $667,857.98 J Mortgage $1,290.00 H St George personal loan $12,266.00 H Probate legal fees $25,840.00 $39,396.00 Net property $628,461.98 H AXA NIL H Energy Industries Super $8,026.00 W Hesta Super $40,497.00 W Local Government super $2,135.27 H Recruitment super NIL H AMP $193,321.00 H Share of mother’s estate No less than $244,000.00
Consequently, the net property of the parties amounts to $628,461.98 represented by their gross assets, “add-backs” of $13,730.00 and $43,325.98, less their liabilities.
I have excluded in that calculation the value of the parties’ superannuation entitlements.
With regard to the husband’s interest in his late mother’s estate, I accept the submissions made by counsel that it should be considered separately or be quarantined as submitted by counsel for the wife. The agreed amount as appears in Exhibit 9 is “no less than $244,000.00”. I will follow that approach notwithstanding that it is arguable that a more accurate description is “property” rather than a financial resource of the husband. It represents a windfall to the husband without any contribution by the wife. As that interest is to be taken into account, it is only reasonable that the related expense of $25,840.00 be included as a liability. As is apparent, I have taken that approach.
Contributions of the parties
Counsel for the parties informed me that the case for their respective clients is that contributions should be assessed as being equal.[10] The conduct of the hearing and subsequent submissions made by counsel were consistent with that approach.
[10] Orders of 15 May 2008, Notation A; Hearing 22 April 2009, counsel’s Opening.
Nonetheless, I am required to make my own independent assessment of the contributions of the parties.
I accept the unchallenged evidence that each of the parties made direct and indirect financial contributions to their property by the earning of income in their respective occupations and the use of it to meet living expenses and liabilities.
Each of the parties made a significant contribution to the welfare of the family in the role of homemaker and parent as detailed in their respective affidavits.
The contributions that each have made to which I have referred, continued subsequent to the separation of the parties.
I have assessed the financial contributions made by the husband as being greater than those of the wife due to his higher earnings.
I have assessed the wife’s contributions in the role of homemaker and parent as being greater than that of the husband due to the periods of time spent by her caring for the children and the extent of that care.
My own independent assessment is that the agreement of the parties that their respective contributions be assessed as being equal is an assessment open to be made on the findings of fact earlier set out. Consequently, I assess the contributions of the parties to their property as being equal.
Relevant matters pursuant to s.75(2)
I make the following findings in relation to relevant matters pursuant to the provisions of s.75(2).
The wife and husband are 46 and 50 years of age respectively. Each party is in good health.
The wife’s total income before tax is $916.00 per week as set out in her Financial Statement sworn 23 April 2009. The principal sources of the wife’s income as set out in that document are: wages of $419.00 per week; single parenting payment of $154.00 per week; family tax benefit of $150.00 per week; and child support paid by the husband amounting to $171.00 per week.
The wife has the property and financial resources described in paragraph 94.
The wife has the physical and mental capacity to engage in her current employment as a part-time childhood teacher employed by K Organisation.
The husband gave oral evidence which updated his previous Financial Statement sworn 18 September 2007. I accept the husband’s evidence that his total income before tax is $2,351.00 per week which includes his salary of $2,342.00 per week gross.
The husband has the property and financial resources described in paragraph 94.
The husband has the physical and mental capacity to engage in his current employment as a work scheduler.
The wife will have the primary care of the children in accordance with the consent orders.
The husband will have significant care of the children.
I accept the evidence of the parties in relation to the commitments they have for themselves and the children.
Each of the parties is eligible for superannuation entitlements as described in paragraph 94.
The parties have enjoyed a standard of living which has included living in their own home and holiday travel interstate and so far as the husband is concerned, overseas albeit primarily focused upon self-improvement seminars.
I accept the evidence of the wife that she desires to continue to be employed on a part-time basis in order to maximise the time she can devote to the children and implicitly the eldest child who has significant health issues.
The husband provides child support.
Assessment of relevant s.75(2) matters
I have determined that there will be an adjustment in favour of the wife of 20% in relation to the net property of the parties due to the weight I have given to relevant matters pursuant to s 75(2) for the following reasons.
The husband’s financial circumstances are vastly superior to those of the wife.
The wife’s income is $21,788.00 per annum gross. The wife’s only assets of significance are her St George accounts and T investments totalling $45,753.00.
By contrast, the husband’s total weekly income is $2,351.00 gross. That includes his salary of $2,342.00 per week or $121,784.00 gross per annum.
Whilst the husband’s personal property in terms of bank account and shares is appreciably less than that of the wife, he has a valuable financial resource represented by his interest in his late mother’s estate of not less than $244,000.00. There is no dispute that he will be able to realise that interest although at the present time the evidence does not enable an approximate date to be given.
In addition, the husband has superannuation entitlements which are far more valuable than those of the wife. The value of the husband’s entitlements is approximately $201,000.00 as against the wife’s entitlements of approximately $42,600.00.
The husband’s greater income enables him to improve his financial security for the future due to larger superannuation contributions that will be made compared to those of the wife.
In addition, the wife will continue to be the primary carer of the children who are still young, their ages being 12, 9 and 8 years respectively. The wife’s overall financial resources to provide suitable accommodation for her and the children are significantly less than the husband’s financial resources, although I recognise that he will also have to provide suitable accommodation.
I have made findings whereby I accept the ongoing the parenting role that the wife desires to continue for the children. The eldest child has special needs due to his health issues and the wife’s primary care means that she will be required to devote a greater period of time in parenting the eldest child compared to the husband, although I do not minimise in any way the attention and care that the husband will no doubt provide.
Conclusion
I have concluded that orders will be made that the wife receives the equivalent of 70% of the net property of the parties. That net property amounts to $628,461.98 which I have rounded of at $628,462.00.
The 70% to the wife represents assessment of contributions of the parties as being equal, together with a further 20% adjustment in favour of the wife having regard to the weight I have given to relevant s.75(2) matters.
I have concluded that orders representing 70% to the wife of the net property of the parties with the remaining percentage in favour of the husband are just and equitable.
In that regard, I have taken into account that the wife will be left with her St George accounts and T investments as well as her public company shares and motor vehicle. The lump sum that the wife would be required to receive of $387,116.00 represents 71.85% of the net value of the former matrimonial home. The former matrimonial home’s net value is $538,710.00 arrived at by deducting the outstanding mortgage of $1,290.00 from the agreed market value of $540,000.00.
An order will be made for the former matrimonial home to be sold by public auction. Each party is free to bid at that public auction so that if she or he does have the financial resources to acquire the other party’s interest in the former matrimonial home then an appropriate bid will be able to be made.
It is well established that in order to allow for variations in the property market, rather than a lump sum being paid to the wife as previously referred to from the proceeds of sale, the more equitable approach is that such lump sum be represented by a percentage of the net value of the former matrimonial home. That will ensure that neither party is disadvantaged by movements in the market place in that the previously agreed current market value may no longer be the value today.[11] Accordingly, the percentage that the lump sum of $387,116.00 bears to the net value of the former matrimonial home is 71.85% ($387,116.00 ÷ 538710 = 71.85%).
[11] Smith and Smith (1991) FLC 92-261.
The husband will retain, or receive as the case may be, his St George account, shares, motor vehicles, financial resource represented by his interest in his late mother’s estate, and relevant percentage of the net proceeds of the former matrimonial home. In relation to the matter of net proceeds, I am only able to proceed on the basis of the value of the former matrimonial home excluding selling costs as there is no evidence of the amounts involved or likely to be involved. That is not an unusual occurrence. Exhibit 9 is conventionally limited to the net property of the parties.
I provided ample time and encouragement for the parties to reach agreement in relation to division of contents of the former matrimonial home, bearing in mind their current and future needs and especially those of the children. Unfortunately, agreement was not reached.
Extensive submissions were made in relation to division of the contents. Limited evidence was given, principally if not exclusively during the course of the husband’s oral evidence. Nonetheless, counsel for the parties quite properly made submissions in relation to the manner in which the contents of the former matrimonial home should be divided and schedules were furnished in that regard. It was not submitted that the “pick a pile” method should be used. There would be a high likelihood of further disputes as to whether one item had greater or lesser value than another, as well as what particular value should be utilised (such as the replacement or second-hand value), let alone the parties being able to determine the appropriate amount.
Current market value on second-hand basis is small. Nonetheless, utilisation of various items is important to the parties and the children. I have, in effect, been left to exercise a wide discretion on a relatively arbitrary basis there not being any other realistic alternative presented to me. Given that the wife will be the primary carer of the children and her financial position being significantly weaker than that of the husband, I have accepted the wife’s proposed division in accordance with the document optimistically described as “proposed terms of settlement regarding contents of matrimonial home”. That document will be annexed to the Orders.
I certify that the preceding one hundred and thirty nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.
Associate:
Date: 31 March 2010
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Family Law
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Property Law
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Civil Procedure
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