GAULTON & GAULTON
[2018] FCCA 737
•11 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAULTON & GAULTON | [2018] FCCA 737 |
| Catchwords: PROPERTY – How a sole beneficiary superannuation fund established entirely with a Total and Permanent Disability payment ought to be considered – how to consider a jointly held self-managed superannuation fund. |
| Legislation: Family Law Act 1975, ss.64B, 60CA, 60CC, 75, 79, 90MC, 90MT(1)(a), 106A Family Law (Superannuation) Regulations 2001, Part IV, reg.13 |
| Cases cited: Stanford v Stanford (2012) FLC 93-318 Bevan & Bevan [2013] FamCAFC 116 |
| Applicant: | MR GAULTON |
| Respondent: | MS GAULTON |
| File Number: | DGC 2926 of 2015 |
| Judgment of: | Judge Small |
| Hearing dates: | 30 & 31 October 2017 |
| Date of Last Submission: | 31 October 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 11 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Puckey |
| Solicitors for the Applicant: | Barry Nilsson Lawyers |
| Counsel for the Respondent: | Mr Weil |
| Solicitors for the Respondent: | MDL Law |
ORDERS
Parenting
The husband be and is hereby restrained by injunction from consuming alcohol during any time that the children [X] born (omitted) 2002 (“[X]”) and [Y] born (omitted) 2005 (“[Y]”) are in his care, and for six hours prior to the commencement of such time.
Property
Within 14 days of these orders (“the due date”):
(a)The monies held on trust for the parties in the trust account of Barry Nilsson Lawyers shall be divided such that the wife shall receive the sum of $505,203 and the husband the sum of $126,326. If there are any trust monies remaining after that division, they shall be divided in the proportions of 35% to the husband and 65% to the wife;
(b)The husband, in his capacity as Director of (business omitted) Pty Ltd, trustee of the Gaulton Superannuation Fund, shall do all such acts and things and sign all such documents as may be necessary to give effect to Orders 5 to 9 hereof; and
(c)The parties shall do all acts and things and sign all documents as might be necessary to remove the wife as a director and/or shareholder of the following entities:
(i)(business omitted) Pty Ltd as trustee for the Gaulton Family Trust;
(ii)(business omitted) Pty Ltd as trustee for the Gaulton Trust;
(iii)(business omitted) Pty Ltd as trustee for the Gaulton Investment Trust;
(iv)(business omitted) Pty Ltd as trustee for the Gaulton Trust; and
(v)(business omitted) Pty Ltd; and
(d)The parties shall do all acts and things and sign all documents as might be necessary to transfer to the husband, at the expense, if any, of the husband, the balance of the (omitted) Bank Account No. (omitted).
Within 14 days of the date of these orders, the parties shall do all such acts and things and sign all such documents as might be necessary to:
(a)transfer the 235 (omitted) shares and the 425 (omitted) shares shares (“the shares”) to the wife to be held on trust for the children [X] and [Y];
(b)transfer (omitted) Bank Account No. (omitted) to the wife to be held on trust for the child [Y]; and
(c)transfer (omitted) Bank Account No. (omitted) to the wife to be held on trust for the child [X].
Within seven days of the wife forming an intention to deal with the shares or the bank accounts specified in paragraph 3 hereof in any way, she shall contact the husband and inform him of how she intends to deal with the shares and/or the bank accounts and how she intends to apply any monies deriving from such dealings.
In accordance with s.90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of the husband Mr Gaulton in the Gaulton Superannuation Fund (“the fund”), the wife Ms Gaulton will be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base amount of $259,824 and there will be a corresponding reduction in the entitlement of the husband.
The trustee of the fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Act and the Family Law (Superannuation) Regulations 2001.
The husband is hereby restrained by himself, his servants and agents from making any binding death benefit nomination to the trustee of the fund in favour of any person who is an eligible beneficiary within the meaning of reg.13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the wife of the splitting Order made in paragraph 5 hereof.
Paragraphs 5 and 6 of these Orders bind the trustee of the fund when these paragraphs take effect from the operative time, being the fourth business day after the date of these Orders.
The wife and the husband shall do all such things and execute all such documents as are necessary to facilitate the rollover by the trustee of the fund of the wife’s entitlements pursuant to paragraph 5 of these Orders to another regulated superannuation fund, an approved deposit fund, or a retirement savings account or other such applicable fund or account at the sole nomination of the wife as soon as that is practicably possible after the operative time.
Should either party refuse or fail to sign any document required by these orders, then pursuant to s.106A of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit Court of Australia at Dandenong shall be appointed to sign any and all such documents on his or her behalf as may be necessary to give effect to these orders, and the Registrar shall be satisfied as to his or her authority under this order upon the complying party or his/her legal representative filing an Affidavit setting out the defaulting party’s failure to comply.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any joint bank account are to be divided between the parties in the proportion of 35 per cent to the husband and 65 per cent to the wife;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)each party forgoes any claim they may have to any inheritances to which the other party is entitled, either presently or in the future; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Gaulton & Gaulton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2926 of 2015
| MR GAULTON |
Applicant
And
| MS GAULTON |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property proceedings arising from the breakdown of the marriage between Mr Gaulton (“the husband” or “Mr Gaulton” and Ms Gaulton (“the wife” or “Ms Gaulton”).
Parenting matters in relation to the parties’ two children, [X] born (omitted) 2002 (“[X]”) and [Y] born (omitted) 2005 (“[Y]”) (collectively “the children”), resolved by agreement on the first day of trial save for one discrete issue.
That issue is whether the husband continues to be restrained by injunction from consuming any alcohol while the children are in his care, an obligation imposed on him by court order on 20 July 2016, albeit that order was made by consent.
The wife wishes for the injunction to continue indefinitely, while the husband wishes to be relieved of the restraint altogether.
Property matters took up the majority of the time at trial.
Therefore, the issues to be decided in this case are as follows:
A.Whether the injunction requiring the husband to refrain from drinking alcohol while the children are in his care should remain in place
B.Whether it is just and equitable to alter the property interests of the parties
C.If it is just and equitable, what are the property interests of the parties and what is their value?
D.What were the parties’ contributions to the property?
E.Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
F.In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
Background
Mr Gaulton was born on (omitted) 1965 and is therefore almost 53 years old. He is a (occupation omitted) by occupation. However, at the time of trial he was in receipt of income replacement insurance payments as a result of injuries sustained in an accident in (omitted) 2014, when he fractured both his shoulders.
Ms Gaulton was born on (omitted) 1966 and is 52 years old. Her current occupation is home duties. She previously worked as an (occupation omitted), but now lives with Crohn’s Disease. As a result of this condition, she received just over $800,000 in a total and permanent disability (“TPD”) insurance payment in 2016.
The parties were married on (omitted) 1991 and separated under the same roof either in February 2014 (on the wife’s evidence) or in September 2014 (on the husband’s evidence). Their relationship for the purposes of these proceedings thus lasted for almost 23 years. They separated physically when the husband vacated the family home in March 2015. They were divorced on 12 June 2016.
The parties’ son [X] lives with a moderate intellectual disability[1] and attends (omitted) Special School. Their daughter [Y] attends (omitted) High School.
[1] I note that what is clinically called a “moderate” disability is actually quite a serious disability in functional terms.
The husband lives in a rented apartment in (omitted), having vacated living quarters attached to the factory owned by the parties’ joint superannuation fund where he had been living since vacating the family home.
The wife lives in rented accommodation with the children close to their schools.
Procedural History
The proceedings commenced in the Family Court of Australia with the husband filing an Initiating Application and sworn Financial Statement on 17 September 2015.
The matter came before Registrar Kaur on 29 October 2015, when orders for the sale of the family home were made by consent.
Those orders provided for the net sale proceeds to be placed in an interest-bearing account in the joint names of the parties in the trust account of the husband’s lawyers.
The wife filed a Response and Financial Statement which was sealed on the Court Portal on 22 December 2015 but stamped as filed on 23 December 2015.
The parties attended a Conciliation Conference before Registrar Kaur on 5 February 2016, but the matter could not be finalised because the wife’s TPD payment had not yet been made and its actual amount was uncertain.
On 8 March 2016 the wife filed an Application in a Case seeking orders for urgent spousal maintenance, reimbursement of certain expenses for telephone and internet installation charges, and an amount of $50,000 to be released to the wife from the family home’s sale proceeds to the wife, with that payment to be characterised at trial.
That Application came before Justice Johns on 3 May 2016 and was struck out. The order states that there was no appearance by either party at that hearing.
The parties’ Divorce Order was made by Registrar Riddiford on 11 May 2016, that order becoming final one month later.
The matter was transferred to the Federal Circuit Court on 20 July 2016 after Senior Registrar FitzGibbon made orders by consent which provided for the family home’s sale proceeds of $842,906.72 to be transferred to the trust account of the husband’s new lawyers.
Those Orders also provided for the sum of $100,000 to be distributed to the husband and $25,000 to be distributed to the wife, those sums to be released from the funds in trust and characterised at trial.
The matter first came before me in the Duty List on 4 October 2016. I made procedural orders by consent and set the matter down for trial on 30 October 2017.
The parties also signed a Minute of Consent Orders on that day which provided for them to attend a private mediation with Mr Wood of counsel.
The husband filed an Amended Initiating Application, sworn Financial Statement and Affidavit in Support on 2 October 2017.
The wife filed an Amended Response, Affidavit and Financial Statement on 10 October 2017. She filed a further Amended Response on 19 October 2017.
The matter came before me for trial on 30 October 2017 and proceeded for 2 days. On 31 October 2017 I made final parenting orders by consent, covering all parenting matters but the issue of the husband’s alcohol consumption.
The only witnesses were the parties, both of whom underwent cross-examination by counsel.
At the conclusion of trial I reserved my decision.
Issues and Evidence
It should not be assumed that I have not considered a piece of evidence if it is not specifically mentioned in this judgment. I have read all affidavit material filed in this matter, and in addition to the impressions I gained of the parties at trial, I have had the benefit of reading the entire transcript of the proceedings.
A. Whether the injunction requiring the husband to refrain from drinking alcohol while the children are in his care should remain in place
The wife’s evidence is that Mr Gaulton drank increasingly heavily towards the end of their marriage, that he reported to his general practitioner that he had concerns about his drinking as early as 2007, and that she fears that the children are at risk in his care if he consumes alcohol at all during their time with him.
An Order restraining the husband from consuming alcohol while the children are in his care was made by consent before Senior Registrar FitzGibbon in the Family Court on 20 June 2016, and that Order currently remains in force.
The husband seeks that it be discharged and the wife seeks that it remain in force indefinitely.
The wife adduced evidence of Mr Gaulton’s expenditure at a “(omitted)” outlet of $3700 in the period 1 January to 20 August 2017, and she notes that some of the dates on which he had purchased alcohol at that outlet were days on which he had the children in his care, which Mr Gaulton did not deny.
However, he categorically denied having breached Senior Registrar FitzGibbon’s order by drinking when the children were in his care, saying that the fact that he had purchased alcohol while the children were in his care did not mean that he had consumed it during that time.
Mr Gaulton impressed as being somewhat defensive in answering questions about his level of alcohol use. For instance, he refused to answer a question about the level of his drinking in the period immediately before and after the date of separation, saying only that it had been “a very bad patch” in his relationship with his wife.
Under cross-examination from counsel for the wife, he accepted that he had had a drinking problem in the past, but asserted that he had decided in about May 2017 that he had been drinking too much and that he had “cut back” since that time. He also stated that he often “had friends around”, and that he had not drunk all the alcohol purchased on his own.
It was his evidence that his favourite drink was whiskey and Coke, and that he buys that in six-can packages costing $25.
I note that the evidence presented by the wife shows that Mr Gaulton bought alcohol at “(omitted)” on 73 of the 232 days between 1 January and 20 August 2017, on average every three days or so, and that he spent an average of just over $50 on each occasion.
In light of all the above evidence, it appears clear that Mr Gaulton drinks at a consistently high level.
An order restraining a parent from consuming alcohol while children are in his or her care is a parenting order under s.64B of the Family Law Act 1975 (Cth) (“the Act”).
When a court makes a parenting order it must take the best interests of the children as its “paramount consideration”[2].
[2] See s.60CA of the Act
The Act sets out 16 separate issues that the court must consider when deciding what orders might be in a child’s best interest in s.60CC, and I have considered each of them in coming to this decision.
The primary considerations, set out in s.60CC(2), require the court to balance the benefit a child might derive from having a meaningful relationship with both parents with the need to keep a child safe from harm, whether physical or psychological.
There is little doubt that if a parent is intoxicated while caring for children, he or she will be unable to have a particularly meaningful relationship with the children, and indeed such intoxication is likely to pose both a physical and psychological risk to children who are exposed to it.
In circumstances where, based on the evidence above, it is more likely than not that Mr Gaulton drinks very heavily, it cannot be in the children’s best interests for him to be drinking when he is caring for them. That is especially so when I consider that [X] has a significant intellectual disability and is therefore less able to protect himself than might otherwise be the case.
I will therefore continue the order made by consent before Senior Registrar Fitzgibbon in June 2016 so that Mr Gaulton is restrained from consuming alcohol while he has the children in his care and for several hours prior to that time. That order will ensure that Mr Gaulton is always entirely sober and alert while the children are in his care, provided, of course, that Mr Gaulton complies with it.
B. Whether it is just and equitable to alter the property interests of the parties
This question arises from the operation of s.79(2) of the Act, which states that a Court may only make orders adjusting the property interests of married parties if it is just and equitable to do so.
In Stanford v Stanford[3] the High Court of Australia stated, at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.
[3] Stanford v Stanford (2012) FLC 93-518.
In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia said that the circumstances described in that passage of the Stanford judgment “encapsulate the vast majority of cases”[4] .
[4] Bevan & Bevan [2013] FamCAFC 116 paragraph 70.
In this case, the parties were married and acquired property which, because of their separation, can no longer be jointly enjoyed. There is nothing in the circumstances of the present case which would remove it from the category of “the vast majority of cases” coming before this Court, and therefore I find that it is just and equitable to alter the parties’ property interests.
C. If it is just and equitable, what are the property interests of the parties and what is their value?
The property interests of the parties at the time of trial, including both those that are and are not in dispute, can be set out as follows:
Asset
Ownership
Value
Proceeds of sale of Property A
Joint (held in trust by Barry Nilsson Lawyers)
$631,169
(business omitted) Pty Ltd as trustee for the Gaulton Family Trust
Joint
$9,150[5]
(business omitted) Pty Ltd as trustee for the Gaulton Trust
Joint
NIL
(business omitted) Pty Ltd as trustee for the Gaulton Investment Trust
Joint
NIL
(business omitted) Pty Ltd as trustee for the Gaulton Trust
Joint
NIL
(business omitted) Pty Ltd
Joint
NIL
235 (omitted) shares
Joint (held on trust for the children)
$17,486
425 (omitted) shares
Joint (held on trust for the children)
$11,679
(vehicle omitted)
Wife
$30,000
(omitted) Bank Account No. (omitted)
Joint
$4,397
(omitted) Bank Account No. (omitted)
Joint as trustees for the child [Y]
$5,041
(omitted) Bank Account No. (omitted)
Joint as trustees for the child [X]
$996
(omitted) Bank Account No. (omitted)
Wife
$2,552
(omitted) Bank Account
Husband
$6,188
Part property settlement
Wife
Husband
$45,000[6]
$180,000[7]
Total non-superannuation Assets
$943,658
Superannuation Entitlements
Gaulton Superannuation Fund
Joint
$824,908
Ms Gaulton Super Fund
Wife
$789,619
Total superannuation
Entitlements
$1,614,527
Liabilities
(omitted) Bank Credit card (omitted)
Wife
$574
[ATO debt (actual)
[ATO debt (anticipated)]
ATO debt to be considered a marital debt
Husband
Husband
Husband
[$37,331
[$38,453]
$ 9473
ASIC fees
Husband
$2,746
Total liabilities
[$88,577]
$12,793
Total nett assets not including superannuation
$943,658 - $12,793
$930,865
Total nett assets including superannuation
($943,658 + $1,614,527) - $12,793
$2,545,392
[5] In his affidavit of 2 October 2017, the husband sets out a table of assets and liabilities of (business omitted) Pty Ltd, showing that the company's net assets are $9150. The gross assets of the company include a bank account containing $50, sale proceeds of two vehicles worth $72,000 and trade debtors of $11,254, a total of $83,304, while the liabilities, including trade creditors, accounting fees, credit card and hire purchase debts, provision for GST, and “unexpired charges” totalling $74,154. I note that the wife does not disagree with those figures.
[6] I note that the Orders of 20 July 2016 provide for a payment of $25,000 to the wife from the family home’s sale proceeds, and there does not appear to be any subsequent Order providing for a further distribution to her from the monies held in trust by the husband’s lawyers. Nevertheless, the parties were agreed at trial that the wife had received $45,000 from those monies.
[7] Similarly, the Orders of 20 July 2016 provided for a payment to the husband of $100,000 from the same monies but the parties were agreed at trial that he had received $180,000.
There is a dispute between the parties about the debts the husband owes to the Australian Tax Office (“the tax debts”), fees the husband owes to the Australian Securities and Investment Commission (“ASIC”) and the value of the wife’s motor vehicle. The parties were also in dispute about whether the wife’s superannuation fund ought to be included in the property pool.
The tax debts and the ASIC fees
The wife says that both the tax debts and the ASIC fees are the responsibility of the husband alone as they relate to the years 2014-2015, 2015-2016 and 2016-2017, which, she says, means they were incurred post-separation.
The husband says all his tax and ASIC debts ought to be included in the property pool.
It was the husband’s evidence at trial that he had paid the sum of $34,500 to the Australian Tax Office (“the ATO”) from the $180,000 he had received from the sale proceeds from the sale of the family home[8]. He said he had not made any other lump sum payments to the ATO in relation to the tax debts, but that he had come to an arrangement with that office to make periodic payments of $2000 per month until all debts were paid.
[8] I note that the husband’s Trial Affidavit states that he applied $50,000 of that sum to his ATO debts.
That means he has remaining debts of $37,331 and $38,453[9], although it is unclear which amount relates to which year. However, I do not think anything turns on that.
[9] Total tax debt = $75,784
It was his evidence that despite receiving the sum of about $13,000 per month in Income Protection Insurance payments since about August 2014, he “runs short every month”. He said he did not make payments to the ATO at the time the tax was being incurred because he did not have funds to do so.
He denied that had not paid his tax debts because of his drinking problem, saying that he did not think his drinking had much effect on the family finances.
The tax debts relate to the years ending 30 June 2015, 30 June 2016 and 30 June 2017.
The parties separated in February or September 2014, although Mr Gaulton did not leave the family home until March 2015.
His tax debts relating to the years 2015-2016 and 2016-2017 are therefore not effectively joint debts as they were not incurred during the marriage. While I must include them in the current assets and liabilities of the parties, the husband will retain them in the final settlement.
The debt from the 2014-2015 year is slightly different.
There was no specific evidence given about how that debt was incurred other than that it was from the 2014-2015 year. Mr Gaulton continued to live at the family home until March 2015, but the parties had separated under the same roof at least six months before that date.
In those circumstances, I find that the parties jointly contributed to only one quarter of the 2014-2015 tax debt – that is, using a broad brush, to that tax incurred between 1 July 2014 and 30 September 2014. Therefore, only the tax debt of $9473[10] will be counted as a joint debt of the parties for the purposes of these proceedings.
[10] ($37,331 + $38,453) ÷2 = $37,892 ÷ 4 = $9473. I have added the tax debts together and divided by 2 to get an average for each of the 2 years and then divided by 4 to get an average debt for each quarter.
The ASIC fees amount to $2746. The husband appears to say they were incurred by entities of which he or both parties were directors in the period before the husband ceased work because of his injuries. That is, during the marriage.
I can find no direct Affidavit evidence about that and neither party appears to have been asked about the ASIC debt at trial.
In those circumstances, I will include it in the property pool as a joint liability because I think it more probable than not that it was incurred while the husband was still working and therefore during the marriage.
The value of the wife’s motor vehicle.
The wife values her motor vehicle at $30,000 and the husband values it at $40,000. There do not appear to be any Redbook or other valuations for the vehicle in any documents annexed to Affidavits or tendered at trial.
In those circumstances, I am bound by authority to choose a value for the vehicle, and am not permitted to simply say that it is worth $35,000 or indeed any value other than $30,000 or $40,000.
For reasons which will become clear later in these Reasons, I find that the wife is the more reliable witness and therefore I value the (vehicle omitted) at her estimated value of $30,000.
The wife’s superannuation fund
The wife says I should not include her superannuation fund in the pool of property to be divided between the parties because its assets consist entirely of her Total and Permanent Disability (“TPD”) payment, to which, she says, the husband has made no contribution.
However, there is ample authority for the proposition that a court must include in any property pool to be divided between the parties to a marriage all items of property in which those parties hold a legal or equitable interest[11].
[11] See Stanford supra and Holland & Holland [2017] Fam CAFC 166
I will therefore include the Ms Gaulton Superannuation Fund in the property pool in this case.
The contributions made to that fund may not have been equal, but I will deal with that matter under Issue D below.
Conclusion Issue C
On the basis of the above evidence and findings, I find that the total value of the parties’ property to be divided in these proceedings is $2,545,392.
D. What were the parties’ contributions to the property?
This question arises from the requirements of s.79(4) of the Act which states as follows:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Initial contributions
In his trial affidavit sworn and filed on 2 October 2017, the husband states that he and the wife made “comparable initial contributions” to their property. He says that neither he nor the wife had any significant assets at the commencement of their relationship and that the entirety of their assets was accumulated either during the marriage or since separation.
In her trial affidavit sworn and filed on 10 October 2017, Ms Gaulton agrees that neither party had any significant assets at the commencement of their relationship.
Therefore, I find that the parties’ initial contributions to the property of their marriage were equal.
Contributions during the marriage
The husband’s evidence is that he worked as a (occupation omitted) from the beginning of the marriage until he suffered a workplace injury in July 2014 in which he fractured both his shoulders.
Since that time, he has been in receipt of significant income protection insurance payments.
In his trial affidavit, he deposes that his income “was applied to the benefit of the family and towards the acquisition of our assets.”
He acknowledges that the wife, too, either worked outside the home, or stayed at home looking after the household and the children throughout the marriage.
Mr Gaulton says that the parties obtained various insurance policies which, in retrospect, have significantly contributed to the parties’ present income. Those policies were:
· a life insurance and total and permanent disability insurance policy obtained for the husband in December 1999;
· a total and permanent disability and trauma insurance policy for the wife in February 2007;
· an income protection insurance policy for the husband in February 2007; and
· a total and permanent disability insurance policy for the husband in February 2011.
There is no dispute that the policy premiums on those insurance policies were met from joint funds during most of the marriage.
The wife contends that she made 100% of the contributions to her own superannuation fund as only she has deposited any monies to it, and that therefore, she should receive the entirety of that fund. Indeed, she sought to have her fund excluded from the property pool for that reason, and I have dealt with that matter under Issue C above.
Ms Gaulton established the Ms Gaulton Superannuation Fund, of which she is the sole trustee and beneficiary, after she received her TPD payment of more than $800,000 in 2016.
The TPD payment was received under an insurance policy which was maintained by joint funds until late in the marriage, after which Mr Gaulton paid for the policy premiums.
It is Mr Gaulton’s evidence that prior to separation, when the wife’s illness began to affect her working capacity, she had suggested that they cancel their life insurance and total and permanent disability insurance policies in order to minimise expenses. He says that he had declined to do so and that he had told Ms Gaulton that he would continue to pay for the premiums as he considered them valuable.
He says that because of that fact, he made not only a direct financial contribution to the wife’s TPD payment through the joint funds used to pay for the insurance policy, but that he made a significant indirect contribution to the TPD payment by insisting that the policy which led to it continued. There is certainly some force in that argument.
The corollary is that Ms Gaulton made a significant contribution to his income protection payments as the insurance premiums for that policy were also paid from joint funds.
There is no doubt that the continuation of those policies has been of enormous benefit to the parties, given Ms Gaulton's TPD payment in 2016 and Mr Gaulton’s significant income protection payments since 2014.
I will allow the husband a small credit for his indirect contribution to those payments by continuing to pay for them when the wife wanted to allow the policies to expire.
The parties are agreed that they both contributed to their joint superannuation fund during the marriage as its assets were purchased with joint funds.
Mr Gaulton also asserts that he made “the greater non-financial contributions during the marriage” as he had “utilised my trade as a (occupation omitted) to improve our various real properties.” Those contributions included “a substantial renovation” to the first property purchased by the parties in (omitted) in 1991, “a significant renovation” to the second property purchased by the parties in (omitted) in 1995, “small renovation works” to a property in (omitted) purchased by the parties in 2009 as a holiday house, and ongoing repairs and maintenance to the Property A property which was purchased in 2006 and was the family home at the date of separation.
He acknowledges, in his trial affidavit, that Ms Gaulton also made non-financial contributions to the parties’ property during the marriage by way of assisting him in renovations “where possible”, and that she “made the greater homemaker and parenting contributions”. Nevertheless, at trial, the husband’s counsel stated that the parties were agreed that the wife’s illness had made her contributions as homemaker and parent more difficult towards the later stages of the marriage, and that the husband had “stepped up” to assist her in that area. The wife stated under cross-examination that her illness had been diagnosed in about 2006 or 2007 and that she ceased work in about 2010 or 2012.
In her trial affidavit, sworn and filed on 10 October 2017 (“the wife’s trial affidavit”), Ms Gaulton acknowledges that the husband was the primary income earner throughout the marriage, although she, too, contributed to the family’s income by way of her work as an (occupation omitted).
In addition, Ms Gaulton deposes that she made a lump sum payment of $85,237.73 to pay out the mortgage on the parties’ property in (omitted) after inheriting those monies from her father’s estate.
She agrees that the parties both made non-financial contributions to the acquisition and maintenance of their properties, and that she was the primary homemaker and parent. In her affidavit material, Ms Gaulton states that the husband “was forced” to assist her when she became ill, but she gives him little or no credit for that assistance.
At trial she was at pains to ensure that the Court understood that she was not saying that the husband had contributed to the children’s care in any meaningful way, saying that he had either been fishing or working on weekends and fishing “a lot” of the time while the family was on holidays.
It is her evidence that in or about 2006, the husband began to drink heavily, which meant that thereafter she had to “share a greater burden” in relation to contributions to the welfare of the family.
I have already found that the husband has a drinking problem severe enough for me to continue the restriction on his drinking while the children are in his care and for six hours prior to that time.
I note that the wife took every possible opportunity during the trial to emphasise what she called the husband’s “alcoholism”.
However, there is very little evidence either in the wife’s affidavit material or in her oral evidence given at trial, to support the assertion that the fact of the husband’s excessive drinking affected his or indeed her contributions to the acquisition, maintenance or improvement to the parties’ property.
The wife also makes the claim that the husband has had the benefit of the sum of $38,260 which was derived from the deposit taken for the sale of the (omitted) property in April 2015.
It is her evidence that the (omitted) property was registered in her sole name, and its mortgage was secured against both that property and the Property A property. The husband does not dispute those facts.
Ms Gaulton says that when the property was sold for $480,000 in April 2015, the sum of $225,409.21, being the net proceeds after sale costs and the mortgage were deducted, was transferred to the (omitted) Bank account in the name of (business omitted) Pty Ltd as trustee for the Gaulton Family Trust. It is her evidence that deposit brought the balance of that account to $925.67.
That is, before that transfer, the (business omitted) Pty Ltd account had been in debit to the extent of $224,483.54. Again, the husband does not dispute those facts.
However, it is the wife’s evidence that a separate payment of $38,260, being the deposit paid by the purchasers of the (omitted) property, was received from the real estate agent who sold the property by way of a cheque.
She said at trial, after much to-ing and fro-ing under cross-examination, that that money was deposited into the parties’ mortgage over the Property A property and then withdrawn from the redraw on that facility and paid to Mr Gaulton to pay business debts.
The husband concedes that the proceeds of sale of the (omitted) property were used to extinguish joint debt, but it was his evidence at trial that he was unaware of any separate cheque being received from the real estate agent, and he denied that he had retained any personal benefit from it.
As far as he was concerned, he had had no involvement in the sale of the (omitted) property because it had been registered in the wife’s sole name, and while his answers to most questions in relation to that issue fell into the “I can’t recall” or “I can’t answer” category, he was adamant that all the sale proceeds from the (omitted) property had been “used to pay debt, house debt and whatever else. And for an accurate thing you would have to get someone to look at it, the books. I know I didn’t take any of that money for personal means.”
He conceded that after reading Ms Gaulton’s affidavit evidence about the sale of the (omitted) property, he had not approached the parties’ accountant to enquire whether what she had said was correct.
Given that Mr Gaulton is the sole director of (business omitted) Pty Ltd, the trustee for the family’s joint superannuation fund, his answers in relation to what happened to the sale proceeds from the (omitted) property seemed evasive and highly unreliable.
If he genuinely does not know any of the details in relation to how the (business omitted) Pty Ltd overdraft was extinguished, his diligence as a company director must be called into question.
Nevertheless, I cannot be satisfied, on the balance of probabilities, that Mr Gaulton personally retained the benefit of the $38,260 cheque received from the real estate agent.
It would appear, from Ms Gaulton’s extremely confusing evidence at trial, that those monies were indirectly applied to the business debts of the husband, and I find that those business debts were joint debts, having been incurred during the marriage.
Overall therefore, I assess the parties’ contributions to the acquisition, maintenance and improvement of their property during the marriage to have been equal.
That is because the wife’s more significant homemaker and parent contributions balance, the husband’s more significant financial contributions, and because the application of her inheritance to the parties’ mortgage which extinguished that debt at that time is balanced by the husband’s insistence that the insurance policies were maintained, and by his non-financial contributions through his skills as a (occupation omitted).
Post-separation contributions
It is the husband’s evidence that in the months after separation in 2014, the wife had requested him to sell his boat, and that he had sold the boat to his brother for $12,000 which, he says, he “deposited […] equally into [X] and [Y]'s (omitted) Bank accounts. I am unsure how the proceeds have been applied. Ms Gaulton has had full access to them.”
His evidence at trial was that the boat was kept at his property because works would need to be done to accommodate it at his brother’s property, that he used it from time to time, and that he would like to buy it back from his brother at the conclusion of these proceedings for about the same price.
When shown a tax invoice for purchases he had made for boating equipment in December 2012, he conceded that he had spent considerable monies on the boat at that time – a little over $13,000. As was pointed out to him at trial, that is more than the whole value of the boat and equipment sold to his brother some two years later.
The inference counsel for the wife implicitly invites me to take from that evidence is that Mr Gaulton sold the boat to his brother for significantly less than it was worth, and that he and his brother have an arrangement whereby the boat will be sold back to Mr Gaulton after these proceedings are concluded for the same or a similar price. The effect of that inference is that the boat will have been effectively quarantined from the parties’ property pool for the purposes of these proceedings.
That argument might have had more force if there had been a current valuation of the boat, or if Mr Gaulton had not immediately deposited the monies given to him by his brother into the children’s respective trust accounts.
As the issue was taken no further I cannot be satisfied, on the balance of probabilities, that there was anything untoward about the sale of the boat to Mr Gaulton’s brother in late 2014.
Under cross-examination, the husband was asked about his evidence that he had paid for the bills of the joint superannuation fund since the date of separation by personally paying the expenses of the factory owned by the fund.
In his evidence-in-chief at trial, Mr Gaulton stated that he had paid the council rates and utilities for the factory, and car loan repayments for a vehicle owned by the trustee company, from 2014, when his business had ceased trading.
He could not quantify those payments until shown a document he had provided to his solicitors in relation to them, and he could not explain, under cross-examination, why the joint superannuation fund, which had a cash balance of about $125,000 in it, had not been making those payments rather than him personally.
Under cross-examination, Mr Gaulton seemed confused about the operation of the joint superannuation fund, and was unable to say whether the payments that he had made to the factory expenses had been entered into the books of the superannuation fund in the form of a loan account, or whether he had claimed them as a tax deduction in the form of contributions to his superannuation.
It is not in dispute that from the date of final separation in 2015 to at least mid-2017, the husband lived in premises above the factory owned by the joint superannuation fund. It was his evidence at trial that he had not paid rent to the superannuation fund for that accommodation, and he appeared unaware of the consequences of any potential non-compliance with superannuation legislation or regulations in having occupied premises owned by the superannuation fund of which he was effectively the sole trustee and a beneficiary.
In any event, for the purposes of these proceedings, I find that any expenses paid privately by Mr Gaulton towards the factory are balanced by the free accommodation he enjoyed at the factory for more than two years.
In those circumstances, I find that the parties’ post-separation contributions to their property have been equal.
Conclusion Issue D
I find, therefore, that the overall contributions of the parties to their property were equal in proportion although different in kind.
E. Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
Section 75(2) of the Act sets out the factors the Court must take into consideration when making orders for the maintenance of a party to a marriage.
The inclusion of this exercise in property proceedings is required by s.79(4)(e) (see paragraph 77 above).
Section 75(2) states that the court must consider the following matters[12]:
[12] I have omitted sub-sections which do not apply to these parties
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
In this case, the parties are of similar age, and both have medical conditions which affect their ability to work.
The wife has Crohn’s Disease, which is a chronic and incurable condition, and her evidence is that she will never be able to work again. I note that she received a TPD payment of about $800,000 in 2016, and that she invested that sum in a self-managed superannuation fund, from which she derives a tax-free pension of about $58,500 per year.
Ms Gaulton also receives about $20,000 per year by way of Centrelink benefits in the form of a Disability Support Pension and carer’s allowance, and about $20,000 per year in the form of child support from the husband. That takes her current total annual income to a little over $98,000[13].
[13] These figures are taken from the wife’s Financial Statement sworn 8 September 2017 and filed 10 October 2017
The husband disputes that the wife can never work again, citing the fact that she has enrolled in a (omitted) course. The wife’s evidence is that she is completing that course because she enjoys (omitted) and wishes to learn more about it. She is adamant that her illness means she does not have the capacity to work in any meaningful sense.
There is evidence from the husband that he does not see his current physical disability as permanent, and that he intends to return to work at some stage, but it was clear from evidence he gave under cross-examination at trial that he will not be able to engage in the heavy physical labour that he performed before his accident.
He currently receives about $162,000 per year in taxable income insurance payments.
On balance, given the TPD evidence, I find that the wife is not able to engage in employment, either now or in the future, whereas it is possible that the husband will be able to engage in full time work, albeit at a different intensity than he was able to before his accident.
The wife argues that the husband’s financial future is secure, because if he remains unable to work, he will receive his current income protection payments of $13,500 gross per month until he is 65 years old or he goes back to work, and if he is ever declared totally and permanently unable to work, he will be eligible to apply for a lump sum TPD payment similar to her own.
It would seem, therefore, that while both parties can be said to have some security in relation to their future financial circumstances, the husband has a secure, substantial and regular income for the next 13 years[14], together with any funds he retains as a result of these proceedings, while the wife is unlikely to receive any regular payments beyond her current interest in her self-managed superannuation fund and any funds she retains as a result of these proceedings.
[14] An amount by my calculations of more than $2 million before tax ($160,000 x 13)
The parties have a child with a significant intellectual disability which, the evidence shows, means that it is highly unlikely that he will ever be able to live independently.
While both parties loved and cared for [X] during the marriage, and [X] spends regular and consistent time with his father, it is clear that most of the responsibility for [X]’s care, both now and as he grows into adulthood and beyond, will lie with his mother.
Ms Gaulton also has the majority care of [Y], who is now 12 years old.
The husband pays child support as assessed by the Department of Human Services (Child Support), although it was the wife’s opinion at trial that he does so “very grudgingly”.
When I consider all the matters set out in s.75(2) as they are relevant to this case, I find that it is appropriate to adjust the parties’ contribution-based entitlements 15% to the wife because of her less secure financial future, and the fact that she will have the primary care of and responsibility for both children of the marriage well into the future.
That means that overall, the husband will receive 35% of the parties’ property and the wife 65%.
F. In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
The children’s trust accounts
As a preliminary matter at this stage of my deliberations, I need to construct a mechanism for the way in which the parties are to hold shares and two bank accounts in trust for the children.
The simple reason for that is that while the parties agree that those shares and bank accounts should continue to be held in trust for the children, they cannot decide who should hold those monies and on what terms.
That fact alone speaks volumes about these parties and their mistrust of each other.
The children live primarily with the wife and will continue to do so pursuant to the Final Orders made by consent on 31 October 2017.
That fact, combined with the Court’s concerns about the husband’s drinking, and his lack of insight into the possible connection between his drinking and financial consequences for his family, leads me to the conclusion that it is appropriate for the children’s trust accounts, and the shares held on their behalf by the parties, to be held and operated by the wife.
However, I further find that it is appropriate for the husband to be informed whenever monies are withdrawn from those accounts, or the shares are sold, for the children’s benefit or otherwise, and I will make Orders to that effect.
The superannuation entitlements
The wife submits that she should retain all of her self-managed superannuation fund worth $789,619 and 70% of the parties’ joint self-managed fund, or $577,435[15].
[15] $824,908 x 70% = $577,435
That would mean that she would retain superannuation entitlements worth $1,367,085, (about 85% of the party’s overall superannuation entitlements) while the husband would retain entitlements worth $247,472, or about 15%. It is difficult to see how that would be a just and equitable settlement under s79 of the Act.
The husband seeks an equalization of the parties’ total superannuation entitlements, which would mean that each would leave these proceedings with $807,264 in superannuation[16].
[16] ($824,908+ $789,619) ÷ 2 = $807,264
The wife bases her claim on the fact that her superannuation fund consists of monies paid to her in compensation for her inability to work, that she made 100% of the contributions to it, and that therefore she should retain it in its entirety.
I do not agree with that submission. I have already found that the husband made direct financial contributions to the wife’s TPD payment because the policy payments which led to that sum being realised were paid from joint funds, and that he made an indirect contribution to it because he insisted on continuing to pay the premiums when the wife wished to allow the policy to expire.
In addition, I have accounted for the wife’s inability to work in applying a 15% adjustment in her favour to the parties’ contribution-based entitlements under s.75(2) of the Act.
There are two main ways that a court may consider superannuation entitlements when making orders altering the property interests of parties to a marriage.
The first is by simply adding their value to the value of real property, chattels, and other items of value, and dividing that total sum in proportions based on findings of the court in relation to the requirements of s79(4) of the Act.
The second method is to separate superannuation entitlements from other items of property on the basis that the Act refers to superannuation as being treated as property[17] rather than as being property in its own right.
[17] Family Law Act 1975 (Cth), s.90MC.
When that method is applied, the Court may, by way of a splitting order, either equalise the parties’ entitlements, or divide them in such proportions as are appropriate having regard to orders the Court proposes to make under Part VIII of the Act.
In marriages where contributions are equal, and there are no particular s.75(2) factors that would mean there should not be an equal division of the total property of the parties, it is usually appropriate to include the superannuation entitlements in the total property pool as set out on paragraph 166 above.
If, however, s.79(4) requirements, together with s75(2) factors as they are incorporated in s.79(4), require the court to make other than an equal division of property between the parties, it may be more appropriate to treat the superannuation entitlements as a separate entity.
In this case, I find it more appropriate to separate the superannuation entitlements of the parties from other items of property, both real and personal, and to deal with those entitlements as set out in paragraph 168 above.
That is, the wife should receive 65% of the parties’ total superannuation entitlements and the husband 35%.
The Gaulton Superannuation Fund (“the GSF”), which has the parties as its only members, was established by the parties at some unspecified time before they had children.
The (omitted) owns a factory in Property B which is valued at $675,000[18]. The GSF also has other net assets worth about $9150.
[18] Affidavit of Mr P, single expert, sworn and filed 26 October 2017.
The factory was on the market for sale at the time of trial, although there were no prospective purchasers at that time. No orders have been made in relation to how the sale proceeds should be applied if/when it sells.
The Ms Gaulton Superannuation Fund (“the GSF”) has cash assets only and its only member is the wife.
I have already stated that the GSF was established in 2016 when the wife deposited funds received by way of a TPD payment in compensation for her inability to work.
At the time of trial, the value of the total superannuation entitlements in the two superannuation funds amounted to $1,614,527 .
65% of that sum is $1,049,443 and 35% is $565,084.
The wife’s superannuation entitlements at the time of trial were worth $789,619.
In order for her to retain entitlements worth $1,049,443, entitlements worth $259,824[19] will need to be rolled over from the GSF to the GSF, and I will make a superannuation splitting order to account for that transfer.
[19] $1,049,443 - $789,619 = $259,824
Otherwise the funds in the (business omitted) Pty Ltd bank account of $9150 and the remainder of the GSF assets will be retained by the husband as trustee and sole beneficiary.
The net non-superannuation assets of the parties
At the time of trial, the wife’s solicitors held the sum of $631,169 in their trust account on trust for the parties, and the total net value of the non-superannuation assets was $930,865[20].
[20] $943,658 - $12,793 = $930,865
In dividing that property between the parties, I will not count the following items in the division, because, while they will be held by the wife, they will be so held on trust for the children, and it would not be just and equitable to ascribe their value to the wife as part of this settlement:
(i)the (omitted) shares worth $17,486;
(ii)the (omitted) shares worth $11,679;
(iii)(omitted) Bank Account No. (omitted) worth $5041; and
(iv)(omitted) Bank Account No. (omitted) worth $996.
The total of those sums, being $35,202, should therefore be deducted from the net assets of the parties before the 65/35 division is made.
Therefore the value of the net non-superannuation assets of the parties to be divided is $895,663[21].
[21] $930,865 - $35,202 = $895,663
For the wife to receive 65% of that sum, she should retain assets valued at $582,181, and the husband should receive assets worth $313,482.
The husband already retains the $180,000 he has received by way of partial property settlement.
If he retains his (omitted) Bank Account, whose balance at time of trial was $6188, together with the balance of the parties’ joint (omitted) Bank Account at $4397 and the (business omitted) Pty Ltd monies of $9150, he will have received assets worth $199,375 before the monies held on trust are divided.
He will take responsibility for the joint $9473 debt to the ATO and the outstanding ASIC fees of $2746. That will leave him with assets with a net worth of $187,156.
For the husband to receive assets worth $313,482, he should receive a further sum of $126,326 [22] from the monies held on trust by the wife’s solicitors.
[22] $313,482- $187,156= $126,326
The wife already retains her (omitted) motor vehicle worth $30,000, and the $45,000 she has received by way of partial property settlement, assets worth a total of $75,000, and she should retain her (omitted) Bank Account No. (omitted) worth $2552. The total value of those assets is $77,552.
She will also retain responsibility for her credit card debt of $574, leaving her with net assets worth $76,978.
For the wife to receive assets worth $582,181, she should receive the sum of $505,203 from the monies held in trust[23].
[23] $582,005 - $76,978 = $505,027
Thus the settlement will be, in table form:
Asset Husband
Value
Asset Wife
Value
Cash already received
$180,000
Cash already received
$45,000
Cash from monies in trust
$126,326
Cash from monies in trust
$505,203
(business omitted) Pty Ltd
$9150
(vehicle omitted) motor vehicle
$30,000
(omitted) Bank Account (H)
$6188
(omitted) Bank Account (W)
$2552
Joint (omitted) Bank Account
$4397
TOTAL ASSETS
$326,061
$582,755
Liabilities - Husband
Liabilities -Wife
ASIC fees debt
$2746
Credit card
$574
ATO debts
$9473
TOTAL LIABILITIES
$12,219
$574
NET ASSETS
$313,842
$582,181
Conclusion
These parties impressed as volatile and somewhat immature, with the Court having to direct Ms Gaulton in particular to answer the question asked, and not to speak over me or counsel on multiple occasions.
Her manner was hostile, defensive, and belligerent, and at times I found her argumentative, non-responsive, and even petulant when under cross-examination. She appeared simply unable to give Mr Gaulton credit for any contributions he had made to the marriage overall, and also to give clear answers to simple questions.
On the other hand, I found Mr Gaulton’s evidence equivocal and at times evasive in relation to what had happened to certain funds, and naive at best in relation to the rules and regulations governing self-managed superannuation funds. He would do well to educate himself about those rules and regulations lest he fall foul of them, as if he were to do so, there would inevitably be significant financial consequences for him.
The animus between the parties was palpable in the courtroom, although it is to their credit that they were able to resolve the parenting dispute between them almost entirely by consent.
It is to be hoped that the resolution of these proceedings with the making of final orders will allow them to leave behind the hostility arising from their relationship breakdown and co-operate as parents for the sake of the children.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 11 April 2018
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Injunction
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Remedies
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Statutory Construction
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