Gezim & Osman
[2024] FedCFamC2F 288
•12 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gezim & Osman [2024] FedCFamC2F 288
File number: ADC 2600 of 2021 Judgment of: JUDGE BROWN Date of judgment: 12 March 2024 Catchwords: FAMILY LAW – Children – parenting arrangement for two children aged 11 and 13 – no significant interaction between the children and the father since separation – whether a change in the arrangement would be in the children’s best interest – presumption of equal shared responsibility rebutted – allegations of family violence perpetrated by the father – best interests – matters to be considered.
FAMILY LAW - Property – property settlement – marriage of 24 years – modest asset pool – assessment of financial and non-financial contribution – the need for the financial relationship between the parties to be concluded – after separation the husband has occupied the matrimonial home – assessment of future borrowing capacity of the parties - considerations of just and equity
Legislation: Evidence Act1995 (Cth) s 140
Family Law Act 1975 (Cth) Pts VII, VIII, VIIIB, ss 4AB, 60CA, 60CC, 61DA, 62G, 65DAA, 75(2), 79
Cases cited: Biltoft & Biltoft (1995) 19 Fam LR 82
NHC & RCH (2004) 32 Fam LR 518
Clauson v Clauson (1995) 18 Fam LR 693
Eaby & Speelman (2015) FamCAFC 104
Farnham & Farnham [2022] FedCFamC2F 83
Ferraro v Ferraro (1992) 16 Fam LR 1
Fox v Percy (2003) 214 CLR 118
Hickey & Hickey (2003) 30 Fam LR 355
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Kowaliw (1981) FLC 91-092
In the Marriage of Omacini (2005) 33 Fam LR 134
In the Marriage of Townsend (1994) 18 Fam LR 505
Jurchenko & Foster (2014) 51 Fam LR 588
M & M [1998] FamCA 42
Mazorski v Albright (2007) 37 Fam LR 518
Phillips & Phillips (2002) 168 FLR 438
Russell & Russell (1999) 25 Fam LR 629
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi [2018] FamCAFC 173
Watson & Ling [2013] FamCA 57
Division: Division 2 Family Law Number of paragraphs: 234 Date of hearing: 27 & 28 November 2023 Place: Adelaide Counsel for the Applicant: Mr Nyamirandu Solicitor for the Applicant: Morgan and Freeman Lawyers Counsel for the Respondent: Mr Lipari Solicitor for the Respondent: Matthew Mitchell Solicitors ORDERS
ADC 2600 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GEZIM
Applicant
AND: MR OSMAN
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
12 MARCH 2024
THE COURT ORDERS THAT:
Property
1.Within sixty (60) days of the date of this Order the husband pay to the wife the sum of ONE HUNDRED AND FORTY THOUSAND DOLLARS ($140,000.00).
2.Should the husband default in the cash settlement sum in paragraph 1 herein the property situated at B Street, Suburb C (hereinafter referred to as the Suburb C property) shall be listed for sale and the following shall apply:
(a)the husband and the wife shall do all acts and things and sign all necessary documents to list for sale by private treaty the Suburb C property and for that purpose the following shall apply:
(i)With such real estate agent as agreed between the parties and failing agreement as nominated by the Secretary of the Real Estate Institute of South Australia;
(ii)The list price of the Suburb C property shall be such amount as agreed between the parties and failing agreement within 14 days the list price will be as nominated by the real estate agent;
(iii)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the Suburb C property for sale including making the key readily available, allowing inspection of the Suburb C property at all times reasonably requested by the agent and ensuring that the Suburb C property is clean, neat and in good order at the time of inspection by any prospective buyer;
(iv)The parties shall each pay to the estate agent one half of any sums requested for advertising or sale expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties;
(v)The Contract of Sale shall provide for completion within 30 days after the date of the contract or any other time period as agreed by the parties;
(vi)The proceeds of sale of the Suburb C property shall be paid in the following manner and priority:
A.To discharge any registered mortgage/s against the Suburb C property;
B.Any other encumbrance affecting the property including rates, taxes and other reasonable expenses;
C.To meet all reasonable costs of sale, including payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
D.Payment of the conveyancing costs and outlays relating to the sale, including reimbursement to a party for any advertising or sale expenses as contemplated in these Orders (if applicable);
E.The remaining sale proceeds be paid 60% to the wife and 40% to the husband.
3.Should the husband fail to place the Suburb C property on the market for sale or fails to sign any documents necessary to place the Suburb C property on the market for sale within 14 days of any request in writing from the wife, the wife be at liberty to apply to the Court for enforcement orders on short notice.
4.Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:
(a)Subject to the satisfaction of the payment stipulated in order one hereof the Suburb C property;
(b)His motor vehicle;
(c)His superannuation entitlements standing in his own name;
(d)Any savings standing in his name;
(e)His personal effects and furniture currently in his possession at the Suburb C property.
5.Including but without limiting the effect hereof, the wife shall retain for his sole use and benefit absolutely free from any further claim or demand of the husband:
(a)Her motor vehicle;
(b)Any saving standing in her name;
(c)Her superannuation entitlements standing in her own name;
(d)Her personal effects and all furniture and household effects currently in her possession.
Parenting
6.The mother, Ms Gezim have sole parental responsibility for making decisions concerning the long term care, welfare and development for X born in 2010 and Y born in 2012 (hereinafter referred to as ‘the children’).
7.The father, Mr Osman, spend time with the children each Saturday from 9.00am to 7.00pm.
8.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and the children are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a Specific Issues Report, with such report to be released prior to 30 September 2024.
9.The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
10.Pursuant to order 6 herein, the Family Consultant shall provide a written report to the Court which is to include both interviews and observed interactions and the report shall deal with the following matters:
(a)The children’s views as to overnight and holiday time with their father;
(b)Assessment of the nature of their relationship with their father; and
(c)Any other matter which the Court Child Expert considers important to the best interests of the children.
11.The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Material produced by a Child Protection authority;
(b)Material produced by a Police Service;
(c)Any other relevant material presently before the Court in admissible form.
12.Should the parties remain in dispute following the release of the Specific Issues Report, pursuant to Section 13C(1)(b) of the Family Law Act1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a)Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed, with each party to attend separately at times to be advised; and
(b)Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than seven (7) days after the date referred to in order 10(a).
13.The matter shall be referred to the Executive Director – National Registrar Operations and Practice for allocation and listing of the FDR Conference dates.
Part 1 of the FDR Conference
14.Part 1 of the confidential FDR Conference shall proceed by telephone and each party must, within two (2) days of receiving notification of the dates of each part of the FDR Conference, notify the Court by email of their best contact telephone number (and include details of the file name and Court file number).
15.Unless otherwise directed by the Registrar conducting the FDR Conference, the Independent Children’s Lawyer’s appearance shall be excused from Part 1 of the FDR Conference.
16.Not later than 4.00 pm seven (7) days prior to Part 1 of the FDR Conference, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court by email and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution);
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders; and
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
FDR Conference
17.The parties shall otherwise comply with any other necessary order, direction or request made by the Registrar to facilitate the FDR Conference.
18.The Registrar may vacate the FDR Conference in the event:
(a)of non-attendance by either party at Part 1 of the Conference; or
(b)that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
IT IS NOTED:
A.The dates and times fixed for all parts of the FDR Conference will be emailed to the parties and their legal practitioners at the email address noted on the Court file.
B.Documents required to be provided to the Court pursuant to these orders must be emailed to the Court as set out in the email confirming the FDR Conference dates and times.
C.Not later than 4.00pm seven (7) days before the FDR Conference date, the lawyer for each party must give the party for whom they act a written notice of:
(a)the party's actual costs, both paid and owing, up to and including the Family Dispute Resolution Conference; and
(b)the estimated future costs of the party up to and including each future court event, including trial; and
(c)any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.
D.For the purposes of the Family Dispute Resolution Conference, the parties are referred to s 131 of the Evidence Act 1995 (Cth) and ss 10J and 10H of the Family Law Act1975 (Cth) and to the Court’s Family Dispute Resolution Fact Sheet.
E.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the FDR Conference only. It is not to be filed or relied upon after the conclusion of the conference.
F.Part 1 of the FDR Conference is the first part of the Conference and is confidential. The other party will not be in attendance.
G.The FDR Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.
H.The structure and duration of the FDR Conference will be at the discretion of the Registrar and will vary depending on the nature of the issues for consideration. Unless otherwise advised:
(a)parties and their legal representatives in short (four hour) conferences are expected to be available until at least 1.00pm and at the specific times requested by the Registrar; and
(b)parties and their legal representatives in full day conferences are expected to be available for the entirety of the day and at the specific times requested by the Registrar.
THE COURT FURTHER ORDERS:
19.Further consideration of the matter is adjourned to 24 October 2024 at 9.30am for directions NOTING that if the parties provide consent minutes prior to the adjourned date, orders may be made in chambers and there will be no need for either party to attend on the adjourned date unless otherwise advised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to competing claims for the settlement of matrimonial property and final arrangements for the care of two children, aged 13 and 11 years. The parties to the proceedings are Ms Gezim (‘the wife’) and Mr Osman (‘the husband’).
The Court has designated the proceedings as a Priority Property Pool matter, as the value of the property to be divided between the parties is under $500,000.00 in value. The major item of property, contained in the calculation of this sum, is the parties’ former family home located at B Street, Suburb C.[1] It was formally valued, in mid-2022, at $415,000.00.[2]
[1] Hereinafter referred to as ‘the former family home’.
[2] See Annexure A-G1 to the wife’s affidavit filed 18 January 2023.
The property is subject to two mortgages, in favour of the Commonwealth Bank, in a total amount of $169,028.00. It is jointly owned by each of the parties.[3] Accordingly, there is a joint equity, in the property of approximately $240,000.00.
[3] See Exhibit E.
The proceedings have been vigorously contested. Neither party wishes to sell the Suburb C property to release the equity in it. Rather, whilst acknowledging the impossibility of them sharing the property, due to the difficult circumstance surrounding their final separation, each wishes to retain it, to the exclusion of the other.
This is the central legal issue in the case relating to property. As will be detailed in due course, as these reasons for judgment unfold, both of the parties have worked very hard, since arriving in Australia, as refugees from Country D (via Country E) in 2004. As such, both of the parties can mount a strong claim to retain the property, and each can point to a pressing personal need for secure accommodation.
The parties are the parents of five children aged between 29 and 11 years of age. All these children currently live with the wife in rented accommodation located in Suburb F, a suburb of Adelaide. It is her case that she needs the Suburb C home to accommodate herself and the children, including the three adult ones.
The parties finally separated in August of 2018, when Ms Gezim left the former family home, with the children. In so doing, she was assisted by a domestic violence service. It is her case that she was subject to serious coercive and controlling behaviours, by the husband, during their marriage. Mr Osman denies these claims.
In these circumstances, the husband points to the fact that he has lived in the Suburb C property alone and paid the mortgage on the property unaided for a period of well over five years in duration. As such, it is his case that it would be axiomatically unfair and unjust to him, if he was to be compulsorily ejected from the property after such a long period of time.
Relevant to these proceedings are the parties’ two youngest children, X born in 2010 and Y born in 2012. Following their parents’ separation, neither of these children nor any other of the parties’ other children – Mr G born in 1994, Ms H born in 1999 and Mr J born in 2005 – have spent any time with their father.
For reasons relating to their shared background, as refugees to Australia, both Ms Gezim and Mr Osman face significant disadvantages in applying to the Court for orders. English is not their first language, and, for obvious reasons, Australian court processes are foreign to them.
In this context, it is Mr Osman’s position that he was unaware he could apply to the Court for parenting orders relating to X and Y, until comparatively recently, when these property proceedings had been on foot for a reasonably significant period of time.
In February of 2023, Mr Osman sought orders pursuant to which X and Y would continue to live with their mother, but he would spend time with them, on alternate weekends, from the conclusion of Friday until the conclusion of school the following Monday, as well as on each Wednesday evening after school, during school terms in addition to each half school holiday.
The wife was opposed to such an outcome, primarily on the basis of her concerns relating to family violence. She wished the father to attend a men’s behavioural change program and complete a parenting course. In the meantime, she proposed daytime contact only, with handover to occur at a police station, with X and Y to be delivered, to their father, by one of their older siblings.
In these difficult circumstances, the Court ordered the preparation of a Child Impact Report, which was completed by Court Child Expert Ms K on 23 June 2023.[4] Following the release of this report, on 30 June 2023, the parties agreed that Mr Osman would start to begin spending time, with the children, on each Saturday from midday until 7.00pm.
[4] See Exhibit C.
It is Ms Gezim’s position currently that this represents the upper end of what the children can tolerate, in terms of spending time with their father, as they have each indicated to her that they do not wish to spend time with him.
Ms Gezim commenced these proceedings on 31 May 2021. She applied only for property orders, seeking chiefly that the pool of matrimonial property be divided 70/30% in her favour. At this stage, she estimated the value of the parties’ property to be $292,698.16, including their respective superannuation entitlements.[5]
[5] See wife’s Financial Summary filed 31 May 2021.
For reasons, which are not entirely clear to me, the first return date allocated for the case was 12 October 2021. Mr Osman filed his response and supporting documents on 15 November 2021. At this stage, he estimated the value of the relevant property pool, including superannuation, to be $168,700.00.[6] He proposed a division of property 60/40% in his favour.
[6] See husband’s Financial Summary filed 15 November 2021.
In this context, he also sought that the Court give credit for what he asserted was the wife’s unauthorised withdrawal of the sum of $45,000.00 from joint funds. This sum has subsequently increased to an amount of $153,000.00.
An earlier trial of the matter, listed for February of 2023 was vacated due to the father seeking parenting orders. In addition, following a conciliation conference, it seemed that the parties had been able to resolve the property aspects of the case, but this proved not to be the case. In these circumstances, for a combination of reasons, the resolution of this matter has been much delayed.
In their respective case outline documents, the parties seek the final property orders, which can be summarised as follows:
·The wife seeks the transfer of the former family home to her in order to achieve a 70/30% division of the net non-superannuation assets in her favour. The parties each retain their respective superannuation assets.
·The husband seeks the transfer of the former family home to him on the basis that he will discharge the current liability of the parties to the CBA and pay the wife the sum of $88,188.80. He also proposes that the parties retain their respective superannuation and there be no splitting orders made.
Mr Osman has disclosed superannuation in an amount of $66,762.65 as at 28 January 2023, whilst Ms Gezim has provided a superannuation statement dated 5 September 2023 indicating a balance of $65,614.85.[7]
[7] See Exhibit H.
Mr Osman asserts that the sum of $10,000.00 withdrawn from the account, pursuant to the Commonwealth government pandemic emergency initiatives, should be added back. In general terms the parties’ superannuation accounts are close to equal.
Significantly, Ms Gezim’s documents do not address how her preferred outcome is to be achieved in practical terms, namely what, if any sum, is to be provided to Mr Osman to acquire his interest in the former family home. Rather her case is based on the bald assertion that she needs the home more than Mr Osman because of the children.
In her trial affidavit, she sums up her case as follows:
For the sake of the children, the best solution is for me and the children to move back into the family home and for the Respondent, who is a single man, to find his own accommodation elsewhere.
To this end, I am willing to pay him a reasonable amount which takes into account my contributions during the marriage and the fact that I have the ongoing care and control of the children.[8]
[8] See wife’s Trial Affidavit filed 18 January 2023 at [58]-[59].
EVIDENTIARY CONSIDERATIONS
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[9] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and on the apparent logic of events.[10]
[9] See Evidence Act1995 (Cth) s 140.
[10] See Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ).
In addition, I bear in mind section 140(2) of the Evidence Act 1995 (Cth), which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
Neither party struck me as having any great knowledge about financial matters. In broad terms, Mr Osman seeks to portray Ms Gezim as a financially savvy person, who is good at moving money around. I accept that she is a good saver and a hard worker but do not think that it is likely that she has hidden significant funds.
This issue of Ms Gezim’s financial knowledge or other is significant in this case because the thrust of Mr Osman’s case is that the Court should approach the division of the parties’ assets on the basis that the wife has not been frank in her financial disclosure, particularly in terms of monies withdrawn by her from various accounts and, as a consequence, the Court should divide what assets are clearly identified, in a manner which favours him, in order to guard against the consequences of Ms Gezim’s lack of candour leaving him potentially short changed.
In the alternative, he seeks that the Court should notionally add back into the parties’ pool of assets a sum of approximately $153,000.00 which should be ascribed as a premature distribution of assets made in the wife’s favour. Given that the quantum of actual net non‑superannuation assets identified in net terms comes to somewhere in the vicinity of $170,000, this would be an extreme step indeed.
Ms Gezim filed an affidavit, described as her trial affidavit on 18 January 2023. It is a brief document of some seven or so pages. However, attached to the affidavit is a bundle of documents of some 400 pages, with 200 of them are described as being her trial documents. This includes statements of her personal accounts and what are described as the children’s accounts.
As I understand it, it is as a consequence of his scrutiny of these statements, that Mr Osman has calculated the quantum of the asserted add backs. Accordingly, in my view, there is some tension between his contention that Ms Gezim has not been frank about her financial circumstances and the fact that he relies on her disclosure to find his claim for add backs.
As I understand his case, it would appear to be that the records produced by Ms Gezim are far from complete and therefore the withdrawals which he has been able to identify are likely to be the tip of the iceberg so far as the level of her withdrawals are concerned.
The wife refutes these allegations. She denies that she has misappropriated funds or hidden monies to her exclusive benefit. It is her case that she has only withdrawn monies to pay for family expenses and used accounts in her or the children’s names, only to ensure that the husband did not waste the money.
Essentially, it is her case that there is nothing sinister in the fact that she has used several bank accounts. During the parties’ marriage, she asserts that she did so to protect funds from Mr Osman misapplying them and to ensure social security payments benefitted the family as a whole.
More recently, it is her evidence that she and her female friends in the Country D community, in Adelaide, pool small regular amounts of money, over time, and then allocate the large sum so accumulated to one recipient so that she can have enough money to fund a major purchase. The recipient changes.
This is a traditionally based practice and seems to be a method of communal saving, combined with the excitement of being able to make a big purchase, the pleasure of which is gratuitously shared between members of the group. Ms Gezim has deposed that her bank account has been utilised to store the various contributions raised.
In the context of these competing allegations, I bear in mind that it is not my role to conduct an audit of the parties’ finances over the lengthy period of their marriage and subsequent separation. In the circumstances, this is likely to be close to an impossible task, given the fact that in my estimation, neither of the parties presented as adept or expert financial historian. Rather, I must remain focussed on what is a just and equitable outcome in the circumstances of the case.
What, in my view, is striking in the case, is that Mr Osman has not been able to identify where Ms Gezim has secreted the funds allegedly siphoned off by her. In addition, there is no evidence to indicate that she enjoys an extravagant lifestyle. Rather, as I will expand upon in greater detail in due course, the evidence indicates that she works extremely hard and lives frugally.
When I come to detail the legal principles applicable to add backs, it will become clear that great care is needed before any notional asset, being one that does not actually physically exist, being treated as if it does. In general terms, whether the Court does take the step of adding back such an asset is to be determined whether it is fair to do so.
The most significant evidentiary issues in this case concern, on the one hand:
·the husband’s allegation that the wife has concealed or misappropriate significant amounts of joint funds during the marriage to his financial disadvantage; and
·on the other hand, the wife’s allegation that the husband was financially irresponsible during the marriage and, as a consequence, she was forced to open accounts in her own name to avoid the husband wasting joint funds;
·in addition, the wife alleges that the husband was coercive and controlling towards her during the marriage causing X and Y to have a negative attitude towards him; and
·on the other hand, the husband alleges that the wife has essentially fabricated her claim of family violence and has alienated the children from him, as a means to buttress her claim to the Suburb C property.
Ms Gezim’s affidavit evidence to the Court is extremely concise in nature. Her written allegation of family violence occupying a brief paragraph in the following terms:
On 31/7/2018, I left the matrimonial home with the children, after [Mr Osman] hounded me and the children to move out of the house with daily threats of violence. Often I had to sleep in my car or barricade myself in my children’s room for fear of being verbally and physically abused.[11]
[11] See wife’s affidavit filed 17 November 2023 at [11].
These are difficult issues to resolve in the context of a case in which the parties were the only witnesses called and there is scant, if any, independent corroboration. In my view, there are implicit difficulties arising for the Court attempting to resolve the parties’ diametrically opposing views on the basis of its assessment of their respective levels of credit.
This arises from the fact that although both the husband and wife have relatively good command of English language, it was obvious that neither of them use English as their first tongue and each was unfamiliar with the Court environment.
In addition, each party mistrusts the other to a very significant degree. Necessarily this is likely to result in each party following the natural human tendency, in cases such as these, to emphasise their own personal contribution and diminish those of their former spouse. For obvious reasons, such an environment also provides fertile ground in which the germs of suspected financial impropriety can rapidly propagate.
In all these circumstances, the ultimate ownership of the Suburb C property has assumed great personal importance for each of them. This has made any individual objective reporting of the parties’ financial circumstances to the Court difficult for each of them.
In addition, given the late stage at which parenting issues were introduced into the case, there is not a great deal of expert evidence regarding X and Y and the parties elected not to call Ms K to enlarge up the Child Impact Report prepared by her. From the perspective of Ms Gezim’s counsel, there was nothing to be gained from such an intervention, given the importance to the wife of having the property proceedings finalised as expeditiously as possible.
BACKGROUND
The wife was born sometime in 1975. The husband was born at some time in 1969. Both were born in Country D. I have not been provided with any formal proof of marriage, but it appears to be the case that the parties married, in Country D, at some time in 1994, after the birth of their first child Mr G in 1994.
As a consequence of civil war in Country D, the parties and Mr G fled Country D in 1996, living first in Country L and then in Country E, where Ms H was born in 1999. The family lived in a refugee camp in Country E until they were granted humanitarian visas by the Australian Government, which entitled them to residence in this country. They arrived in Adelaide in 2004.
During the seven years the parties were living as refugees, the husband worked as an educator and the wife worked as an allied health worker. For obvious reasons, when they arrived in Australia, the family had no assets and had to start from scratch in a new country. Ms Gezim began attending English language classes. Mr Osman enrolled to study a trade at TAFE. He completed his course but found it difficult to find employment as an adult apprentice.
In 2005, Ms Gezim commenced a course to qualify her as an allied health worker, which she successfully completed so enabling her to start work at M Company in early 2006. During 2005, the parties’ third child Mr J was born in 2005. In mid-2005, Mr Osman obtained a full-time position, as a factory worker, at N Company. He has retained this position until the present time.
Prior to Mr Osman commencing his employment, the family received social security. Since 2005, both parties have remained in full-time employment apart from, in Ms Gezim’s case, the period between 2009 to 2013, when she took unpaid maternity leave to coincide with the births of first X and then Y. During this period, she received some social security.
Until 2009, the family was living in rented accommodation. However, the landlord decided to sell the property, leaving the parties without a permanent home. In these circumstances, they decided to buy their own property, so that they would not, in future, be subject to the risk of eviction from their home.
It was at this time that the Suburb C property was purchased. The purchase price was $275,000.00 with additional costs in the form of stamp duty and registration fees in an amount of $11,846.00. The Commonwealth Bank, along with a first homeowners grant contributed the sum of $265,500.00[12]
[12] See Annexure O2 to the husband’s affidavit filed 22 November 2023.
It is the wife’s case that she contributed the deposit to enable the purchase of Suburb C from the monies she was able to save from her salary and from social security. It is the tenor of her evidence that she was the more financially responsible and disciplined party during the marriage and was able to live frugally and save, whilst the husband used his wages as he pleased but not always prudently, spending excessive amounts on alcohol and gambling.
She accepts that she did close a joint bank account, into which social security payments were paid and thereafter opened an account, which she controlled. She deposed as follows:
In 2007, I decided to close the joint children’s account because the Respondent was withdrawing money from it, without my knowledge and spending it on alcohol and gambling.[13]
[13] See wife’s affidavit filed 17 November 2023 at [25].
It is also Ms Gezim’s case that, due to her financial discipline, she was able to save enough money to renovate the kitchen at the Suburb C property and replace the flooring. She also transformed an outbuilding into living quarters. This cost her approximately $25,000.00.
Ms Gezim also deposes that she purchased all the furniture and household items in the Suburb C property, which Mr Osman retains. She estimates that the cost of this was around $22,500.00. All in all, it her case that her contributions – both in a financial sense and as a parent and homemaker – are much greater than those of Mr Osman.
It is also her case that she was determined that the younger children should receive a good education in Australia, and it has been she who has paid the children’s private school fees since 2006. Accordingly, Ms Gezim is dismissive of Mr Osman’s financial contributions during the marriage. She deposes as follows:
Whether I was employed or not, I paid for almost of the groceries from my savings or from Centrelink payments. During our marriage, the Respondent never paid for groceries. I continue to do so.[14]
I haven not known the Respondent to pay for necessities for the children, although there may have been the odd occasion.[15]
[14] See wife’s affidavit filed 17 November 2023 at [45].
[15] See wife’s affidavit filed 17 November 2023 at [46].
Ms Gezim accepts that, whilst she was on maternity leave between late 2009 and early 2013, Mr Osman paid the mortgage payments on the Suburb C property. However, it is her case that when she returned to work, she was able to make a salary sacrifice payment, direct to the mortgage, due to the public benevolent status of her employer, in an amount of $300.00 per fortnight until the date of separation.
Ms Gezim has deposed that the marriage between the parties broke down several years before she and the children physically left the home. From her perspective, the catalyst for her leaving the home was the husband taking all the children to the United States of America, without informing her first. She only learnt of the travel when she received an email from Mr J. She was fearful that the children would remain in America. From her perspective, the unilateral nature of the husband’s decision to take the children out of Australia, without her permission, is a prime example of his coercive and controlling nature.
Mr Osman indicated that the trip to the USA was so that the children could interact with some of their Country D relatives who live there. He deposed that he saved for the trip and the children were safely returned to Australia. From the wife’s perspective, this was the final straw and caused her to leave, which was extraordinarily difficult for her as she went with nothing from the Suburb C property and had to fund a bond and rental advances on her new accommodation; purchase bedding for the children and new household items; together with another motor vehicle.
The effect of her evidence overall is that Mr Osman has had a much easier time financially, since she left the home because he has retained all the parties’ furniture and has not had to pay rent – unlike her. She also asserts that he has withdrawn the sum of $35,000.00 from the mortgage account on the Suburb C property, the sum of which he has utilised for his own benefit.
Needless to say, Mr Osman has a different take on how the parties’ finances were managed during their marriage. It is his evidence that the parties had, in effect, three bank accounts. A primary joint account, into which his salary was paid into and which was used to pay first rent and then the necessary mortgage payments.
A further joint bank account, which was used to save any surplus funds, in particular tax refunds. Finally, a bank account in Ms Gezim’s sole name, into which was paid social security entitlements relating to the children and in respect of which he had no access because Ms Gezim regarded it as being her money.
It is the tenor of Mr Osman’s case that Ms Gezim has secreted monies away from him during the parties’ marriage and has not been completely frank with either him, or the Court. He deposes as follows:
When I received my tax refund each year, which was usually relatively significant as we had five children, she would transfer the refund payment into her sole account as soon as it would land in our joint account.
In about 2008 I checked our joint savings account and saw that it was completely empty. I could see from the transactions that [Ms Gezim] had transferred the whole balance into her sole account. I confronted [Ms Gezim] about this and asked why she had transferred all of our savings. She became very angry and refused to explain. For fear of losing our marriage I did not push the issue.
In 2009 we were living in rental accommodation and the homeowner decided to sell the property. [Ms Gezim] and I considered that we should attempt to buy our own property rather than obtaining another rental.
I discussed with [Ms Gezim] that the deposit would need to come from the money she had stored in her sole account as we had no savings left in our joint savings account after the transfer she made and all of my wage was being applied to bills and living expenses.
[Ms Gezim] agreed and paid the deposit of $23,030.00 from her sole account, although this was technically joint funds.[16]
[16] See husband’s affidavit filed 22 November 2023 at [24]-[28].
Mr Osman has deposed that he also made direct financial contributions to the improvement of the Suburb C property, most significantly in the form of fixtures, which he paid to install in 2014, at a cost of $7,000.00.
Ms Gezim has other criticisms of Mr Osman. She asserts that his negligent driving resulted in the writing off of multiple family motor vehicles, which she had to replace from the monies she had saved. It is also her case that Mr Osman was disqualified from driving for a period of time, during which time, she had to drive him to and from work.
It is the effect of Ms Gezim’s evidence that she purchased each of these vehicles, from funds which she had saved and kept protected from Mr Osman, who, if he had known about the money, would have withdrawn it and wasted it.
It is her case that she was compelled to keep a separate account to prevent Mr Osman withdrawing from it to her and the children’s detriment. Accordingly, each of the parties assert that the other was either financially irresponsible or has siphoned off joint funds during their marriage.
Mr Osman has denied that he has ever been a big gambler and has deposed that he was not at fault in all of the car accidents in which he was involved. He asserts that the children’s school fees were paid from the family tax benefit, which the family received, and it is a misnomer to assert that this was Ms Gezim’s money, although she controlled it.
Mr Osman’s alleges that Ms Gezim had sent money to Country D to enable her parents to build a house there. In this context, he has ascertained that Ms Gezim transferred the sum of $4,760.00 to an international money transfer service. He has no other documentary evidence to establish other such transfers.
In his trial affidavit, Mr Osman deposed his belief that Ms Gezim had re-partnered to a person who was working for a government authority in Country D receiving a salary of around US$3,000 per month, part of which he forwards to the wife. There is no evidence to support this allegation.
Also in his trial affidavit, Mr Osman asserts that when he and Ms Gezim were living together, they were not a cash family. Rather their custom was to make payments for their living expenses using debit cards. In this context, he has closely scrutinised the bank accounts provided by Ms Gezim in discovery to identify a number of withdrawals of cash, which he regards as being suspicious.[17] However, he cannot point to any specific asset into which these funds have been translated. Some funds have been sent to Country D, but I do not regard these sums as being significant.
[17] See affidavit of the husband filed 22 November 2023 at [78].
Ms Gezim was a very impressive witness. She described herself as a workaholic, who loved to work. More often than not, she has had two jobs. In addition, it is her preference to work late shifts. As well as her qualifications in allied health, she has obtained qualifications as a health worker. At present she says is working around 62 hours per week, which includes regular night shifts.
On balance, I accept Ms Gezim’s evidence so far as its general import is concerned – namely she was the financially responsible and focussed spouse during the parties’ marriage and did whatever she could to make sure her wages were used responsibly and for the benefit of the family. It is to her great credit that she has taken advantage of all the opportunities for advancement available to her since coming to this country.
In addition, having considered all the evidence available to me, there is, in my view, nothing to indicate that either Mr Osman or Ms Gezim live anything other than frugal lives. I do not disbelieve Ms Gezim’s evidence that she and her friends, from time to time, accumulated monies in Ms Gezim’s account, which were later distributed.
At present, Ms Gezim, Mr G, Ms H, Mr J, X and Y are living in rented accommodation. Ms Gezim has been worried, in the past, that her lease will be terminated – as occurred previously leading to the purchase of Suburb C in 2009. It is my impression that, from each parties’ perspective, the property, as the first home owned by them in Australia, is infused with great emotional significance.
Ms Gezim’s lease is due for renewal in mid-2024. Clearly, it is the preference of Ms Gezim that she and the children live under a roof, which she owns, and have all the security which such ownership entails. This desire for financial security seems also to motivate her extraordinary work ethic.
Currently, Mr G is working, on a part-time basis, but makes limited financial contributions to the household; Ms H is studying; and Mr J is not currently working.
In these circumstances, it is Ms Gezim’s evidence that her income supports the adult children in the family to a very significant degree. She has deposed to be currently earning approximately $4,000.00 gross per fortnight, but her hours are long and arduous. Her income for child support purposes, as assessed by the ATO, is $99,287.00.
Mr Osman has worked at N Company for approximately 19 years and must be regarded as a reliable employer. He earns $1,350.00 per week and lives on his own. He is currently assessed to pay child support for X and Y.
Mr Osman’s adjusted taxable income, as assessed by the ATO, is $62,524.00 per annum. The most recent child support assessment provided to me indicates a monthly liability for Mr Osman of $846.00. Ms Gezim’s adjusted taxable income, by dint of her working multiple jobs and overtime, is assessed to be $88,739.00.
In respect of child support, Ms Gezim deposed that she had not received any payments from Mr Osman between 2018 and 2020 and had not pursued child support because she did not want Mr Osman’s money. The effect of her evidence was that she had only sought a child support assessment because Centrelink was giving her a hard time about it.
It is also her case that it is disingenuous of Mr Osman to assert that he willingly pays child support when the reality of the situation is that his wages are being compulsorily garnished to supply it. In my view, this situation is emblematic of the longstanding mistrust and antipathy between the parties, which must be relevant to the workability of any parenting regime which the Court considers.
It is also Mr Osman’s case that he made significant contributions to the welfare of the family prior to the parties’ separation as he arranged with his employer to start work at 6.00am and finish at 2.30pm so that he could collect the younger children from school and look after them in the afternoon, whilst Ms Gezim was at her work.
Mr Osman has not always enjoyed robust good health. In 2013, he had to undergo surgery for a serious medical condition. Shortly afterwards, he was diagnosed with a chronic health condition. He is now required to take medication daily to manage his condition and must attend regular health checks.
It is his case that he ceased alcohol use when he was diagnosed with a medical condition and has not drunk for over a decade. Necessarily he suggests that Ms Gezim has magnified her concerns, in this regard, as well as having exaggerated her allegations of family violence, to gain a tactical advantage over him in these proceedings.
Mr Osman presented as an honest and straightforward witness. He is deeply suspicious of Ms Gezim and I accept he honestly believes that she took advantage of his trust in her during their marriage to advantage herself financially at his expense. In this context, it is my finding that he viewed transactions in various bank statements provided to him by the wife and imbued them with a significance they do not deserve.
In addition, given his endemic mistrust of Ms Gezim, he does not accept any of the explanations which she has provided as to why monies were moved from one account to another, or various accounts were opened in the children’s names. In my assessment this is not a case involving add backs relating to the premature distribution of assets.
Rather, this is a case concerned with a modest asset pool, which has been created by the combined hard work of each of the parties, neither of whom has ever enjoyed a large wage. In addition, in Ms Gezim’s case, she has, in recent times, made very significant contributions to support each of the parties’ children.
It is common ground between the parties that, following their separation in mid-2018, Mr Osman has paid the mortgage payments and other outgoings on the former family home at Suburb C, whilst Ms Gezim has been paying rent for her accommodation with the children. Her financial statement indicates that the rent is $380.00 per week. From her perspective, this is dead money in the sense that it does not add to her personal capital.
Mr Osman’s financial statement indicates that he pays $295.00 to the Commonwealth Bank each week in respect of the mortgage and approximately $166.00 in respect of rates and other outgoings. Mr Osman has explored the prospect of borrowing monies to acquire Ms Gezim’s interest in the Suburb C property.
The Commonwealth Bank has given approval for a mortgage of $344,000.00 which I take it includes the current advance of approximately $205,000.00. In order for the loan to be approved, the parties’ adult child Ms H must be included as a mortgagor on the basis that she would be transferred a 20% stake in the property as a tenant in common with her father.
As previously indicated, Ms Gezim has not provided any evidence in respect of her borrowing capacity other than that she concedes it will be necessary for her to borrow to achieve her desired outcome in the case.
I mean neither of the parties any disrespect but each of them struck me as being extremely strong minded, particularly Ms Gezim. As is evident, it is not possible that they should share the Suburb C property. Each is firmly convinced of their superior claim to the property over the other. It is extremely regrettable that the Court must make essentially a zero sum game decision which will create a sense that one party has won the case and the other has lost it.
THE CHILD IMPACT REPORT
In the Child Impact Report, Ms K confirmed that there were no family violence orders between the parties and no Child Protection Services involvement with the family. It would also seem to be the case that the police have not been called to the parties’ home prior to their separation. It was common ground between the parties that X and Y had not spent time with their father since 2020 other than at community functions.
To Ms K, Mr Osman expressed a desire to parent the children in a shared care regime, which Ms Gezim indicated she was open to them having a relationship with their father and would be agreeable to them commencing to see him during the day on Saturdays.
X was a couple of months over 13 years of age and Y a couple of months over 11 years of age when they were interviewed by Ms K. Ms K described X as a mature, polite and articulate child, whose church is very important to her. She is close to her older siblings, who care for her, when her mother is working. X was very positive about her mother. She confirmed that she had not seen her father, other than at Country D community events, for a long period of time.
Y was described as serious, quiet and thoughtful. She too was positive about her older siblings and her mother. Of concern was the fact that Y reported struggling at school. It was apparent to Ms K that both children had been exposed to the aftereffects of family violence in the sense that they each remembered their mother crying and coming into their bedroom and this being scary. Neither child had seen actual physical violence between their parents.
In terms of their reported wishes in respect of engaging with their father, Ms K reported as follows:
Looking forward, [X] spoke about commencing to spend time with her father, she said Saturday for the “whole day” would be ok to start with. [X] was not averse to sleeping at her father’s home in the future.
….
Looking forward [Y] could see herself spending time with her father on a Saturday, she thought this would be “exciting”. When asked if she had three wishes what would they be, [Y] wished her family “had better relationships with more talking and a bigger house”.[18]
[18] Child Impact Report dated 23 June 2023 at [23]-[29].
In contrast to her affidavit evidence, Ms Gezim provided extensive details of what she asserted was the family violence to which she had been subjected by Mr Osman in both Country D and Australia. This included physical assault, verbal abuse, spiritual abuse, financial abuse and sexual abuse. She indicated that the physical abuse had ceased when the parties came to Australia as Mr Osman was afraid to hit her and had instead started to use more verbal abuse. She reported this behaviour was exacerbated by Mr Osman’s drinking.
In respect of family violence occurring within Australia, it is noteworthy that Ms Gezim reported issues to do with being shamed in her Country D community and church and that Mr Osman had disrespected her religious views. It is also significant, in the context of the allegations that Ms Gezim had hidden money from him, and she also reported to Ms K that Mr Osman restricted her access to funds. The relevant portions of the report are as follows:
[Ms Gezim] alleged she has been called a “prostitute” at home and in the community and shamed within their culture, she was told she “was no use” and “not a good person” she described this verbal abuse escalating at the time of separation. [Ms Gezim] described herself as a “group wife” where [Mr Osman] would disclose details about their marriage to the community and then this would cause shame for her as a result. She alleged this denigration gave no privacy to their relationship and the community believed her to be behaving disrespectfully. [Ms Gezim] acknowledged her religious beliefs are important to her and she attends church most weekends, she alleged that [Mr Osman] called her a “fanatic, idol worshipper and mad women” regarding her religion and this impacted her emotional wellbeing and sense of self during the relationship.
[Ms Gezim] alleged financial abuse, she claimed to only have access to her own funds and if she asked [Mr Osman] for more money he would say “only a prostitute asks for money” causing her to rely on friends at times. [Ms Gezim] alleged that if there was not adequate food in the home [Mr Osman] “would abuse me” even when he was aware she did not have adequate funds. [Ms Gezim] alleged she did not receive child support from [Mr Osman] until 2021.[19]
[19] Child Impact Report dated 23 June 2023 at [31]-[32].
Mr Osman denied any violence towards Ms Gezim. He conceded having lost his driver’s licence because of a drink driving charge. He reported, consistent with his evidence at trial, that he has not drunk alcohol since his heart valve operation. It was Ms K’s understanding that the parties’ adult children have a fractured relationship with their father – a situation of which Y and X were obviously aware. As such, Y and X were likely to accept the current situation with their father.
In Ms K’s assessment, Ms Gezim had insight into the children’s needs. She considered the mother’s allegations of family violence to be serious but neither malicious nor exaggerated. She was assessed to be supportive of X and Y having some form of relationship with their father but was concerned that he would not be able to maintain it given what she considered to be his limited parenting skills and current lack of relationship with them. Ms Gezim also reported her concern that Mr Osman might utilise any reinstatement of his relationship with the children to shame or embarrass her in the Country D community.
In respect of Mr Osman, Ms K provided the following assessment:
[Mr Osman] demonstrated limited insight into his alleged use of family violence he minimised the concerns and laughed at times when posed with an allegation such as sexual abuse. His understanding of [Ms Gezim] or the children’s experiences seemed limited and he found it difficult to consider how they may have been impacted by his behaviour. [Mr Osman] was not child focused in his proposal and considered shared care to be an appropriate solution. [Mr Osman] would be encouraged to consider the limited time spent with his children over the past few years and focus on reconnecting and demonstrating consistent and reliable parenting before considering such a substantial change to the parenting arrangements.[20]
[20] Child Impact Report dated 23 June 2023 at [45].
As previously indicated, this critical assessment has not been subject to any detailed scrutiny through cross-examination. In the Child Impact Report, Ms K recommended the following:
·X and Y remain in the primary care of their mother;
·Shared care was not recommended;
·Handovers occur in the community;
·Mr Osman attend a parenting course and a men’s behaviour change program; and
·The parents be restrained from denigrating the other to the children.
Specifically, in respect of the viability of shared care for the children, Ms K reported as follows:
Shared care relies on the children having a strong relationship with both parents and a substantial co-parenting relationship Given [X] and [Y]’s limited relationship with their father [Mr Osman] over the past few years it would not be in their best interests for a shared care arrangement to be implemented at this time. [X] and [Y] need to spend short periods initially with their father [Mr Osman] to develop a connection and build trust before moving to any overnights or substantial time spending. [X] and [Y] may benefit from commencing with three hours on a Saturday for four weeks before extending this to a full day to encourage a re-connection and allow [Mr Osman] to demonstrate he is capable of meeting their needs.[21]
[21] Child Impact Report dated 23 June 2023 at [47].
This recommendation was the basis of the consent order of 30 June 2023. It is Mr Osman’s position that his time with the children has gone well and his relationship with them has progressively strengthened. It is his case that the children have frequently asked to spend more time with him and want to go on holidays with him or spend the weekend. He has provided proof of completing a parenting course but has not been able to complete a men’s behaviour change program as the one recommended by Ms K has been discontinued by O Centre.
Ms Gezim deposes that the arrangement envisaged in the order of 30 June 2023 is going well. However, she is opposed to the children spending overnight time with their father. In her trial affidavit, she deposed as follows:
The children would prefer to continue with the arrangement each Saturday from 12 pm to 7 pm and do not wish to spend any more time with the father because it will disrupt their routine, which includes their usual Sunday school services.
The children want to continue living with the mother and see the father only on Saturdays and with sleepovers at the father’s house.[22]
[22] See wife’s affidavit filed 17 November 2023 at [64]-[65].
The difficulty with this evidence is that there is no independent expert evidence directed towards ascertaining how the children feel about overnights, other than X is not averse to it. At the same time, it seems that church is important to both children, particularly X and also to Ms Gezim. The family has a strong sense of connection to the community represented by their church.
In cross-examination during the hearing, Ms Gezim’s personal antipathy for Mr Osman was apparent. The impression given by her evidence was that although she accepted the children loved their dad, they only went to see him because she encouraged them to go because they had to. Her impression was that the children felt their time with their father was boring.
LEGAL CONSIDERATIONS
(a) Property
Part VIII of the Family Law Act 1975 (Cth)[23] deals with financial matters relating to parties who are or have been married to one another. In particular, section 79(1) authorises the Court to alter the property interests of the parties to a marriage. In addition, Part VIIIB provides specific provisions enabling the splitting of superannuation between spouses.
[23] Hereinafter referred to as “the Act”.
The process to be followed for the division of the parties’ property is well-established by law.[24] The relevant legal principles are primarily contained in sections 79 and 75(2) of the Act. I am required to follow a number of specific steps.
[24] See Ferraro v Ferraro (1992) 16 Fam LR 1; Clauson v Clauson (1995) 18 Fam LR 693; Hickey & Hickey (2003) 30 Fam LR 355.
In the first step, I must ascertain what are the parties’ assets and liabilities available to be divided between them. The general rule is that those assets are to be determined as at the date of trial.[25]
[25] See Biltoft & Biltoft (1995) 19 Fam LR 82.
In the second step, I must ascertain the contributions, which each party has made towards the matrimonial pool of assets, as I find them, following the first step. Contributions fall into two broad categories.
The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, 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.[26]
[26] See Family Law Act1975 (Cth) s 79(4)(c).
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
At this second stage, the task set for me requires the balance and comparison of a multiplicity of contributions, many of which are necessarily different in nature, within the framework of a marriage.
Many contributions in a marriage, such as being a homemaker, do not result in the direct acquisition of assets. They are also difficult to value in absolute dollar terms. In contrast, the monies contributed by a wage earner are easier to quantify. However, these difficulties do not absolve the Court of its obligation to undertake the required assessment of contributions.
The Court’s discretion is a wide one but must be exercised judicially. The task conferred is to weigh and assess contributions, which are necessarily disparate in nature. In summary, contributions, within the framework of a marriage, which are different in quality and nature must be compared, in order to achieve a just and equitable division of property. It has been referred to as a holistic exercise.[27] Certainly, it is not to be approached as a simple accounting or arithmetical exercise.
[27] See Watson & Ling [2013] FamCA 57 at [13] (Murphy J).
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 75(2) of the Act. In the present case, the following factors are of crucial importance:
·The age and health of the parties [section 75(2)(a)];
·Income earning capacity [section 75(2)(b)];
·Care and control of children of the marriage aged under 18 [section 75(2)(c)]; and
·Responsibilities to support another person [section 75(2)(e)].
Pursuant to section 75(2)(o), the Court is entitled to take into account any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account. As already indicated, who of the parties should retain Suburb C is at the heart of the controversy thrown up by this case.
It is the wife’s case that given the parties’ adult children, as well as X and Y live with her, this is a factor which needs to be taken into account in favour. It is also her position that her efforts substantially improved the property. On the other hand, the husband points to the fact that he has lived in the property in the almost six years since the parties’ separated, during which time he has paid for it. As such, it would be inequitable and unjust to evict him now. In emotional terms, each party would seem to assert that the property is their respective home.
As will be detailed shortly, this provision may be utilised to deal with controversies arising from what lawyers refer to as add backs, which considerations of justice and equity required be taken into account but it would not necessarily be fair or possible to approach such issues on a dollar for dollar basis. It is Mr Osman’s case that there are significant sums which need to be taken into account in either direct arithmetical terms or by way of a percentage adjustment in his favour in a more general way.
Finally, in determining what order the Court should make under section 79, the Court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the Court must consider.[28]
[28] See Russell & Russell (1999) 25 Fam LR 629, 644 [80] (Ellis, Finn and Mushin JJ).
As I am at pains to point out, it is impossible for both Mr Osman and Ms Gezim to retain the Suburb C property. In Stanford v Stanford[29] the High Court placed significant emphasis on section 79(2), which actively prevents the Court from making an order, in respect of property, unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words “shall not” in the relevant section.
[29] Stanford v Stanford (2012) 247 CLR 108.
The central legal dilemma thrown up by this case is easily encapsulated. The parties jointly own the Suburb C property. As its legal proprietors, each is entitled to occupy it. Clearly, however, for the reasons delineated, they cannot both occupy it at the same time. As such, it seems inevitable that the Court must exercise the discretion conferred upon it by section 79(2) of the Act to alter the parties’ existing legal interests in the property.
Accordingly, in deciding who of the parties should retain Suburb C, I must be guided by what is just and equitable. In colloquial terms, I am not in a position to metaphorically flip a coin in my mind to decide the matter.
In this context, I am aware that an outcome which neither of the parties advocates – namely selling Suburb C and dividing the proceeds between them – might have the appearance of being even-handed in the sense that neither gets the property but rather each gets a share of the capital which it represents.
This might be perceived as being superficially fair but is also likely to be viewed as an act of caprice on the Court’s part. It would also have the invidious consequence of disadvantaging both of the parties vis-à-vis their capacity to be homeowners. I do not propose to follow such a course. Difficult as it is to make a decision, given the strong claims each party has to the Suburb C property, a decision must be made between their competing applications.
In Farnham & Farnham[30] Judge Turnbull helpfully summarised various authorities to provide a non-exhaustive list of considerations relevant to how the discretion regarding who of parties should retain a piece of real property should be exercised. The matters can be summarised as follows:
[30] Farnham & Farnham [2022] FedCFamC2F 83 at [204].
·Who has lived in the property since separation and the consequences for any children if the property is not available?
·What will be the effect, on a party, of, in effect, losing their home?
·Similar considerations arise if the premises have been utilised to operate a business;
·What is the borrowing capacity of the parties seeking to retain the property concerned?
·Where is the property located? Is it close to schools or sources of emotional or familial support?
·Is the property subject to a favourable mortgage, which cannot easily be replicated?
·The outgoings on the property. Essentially, can the party who wishes to retain the property afford to do so and, if necessary, fund necessary repairs or renovations?
·What is the zoning of the property? I take this as a reference to development opportunities and the equity of who should benefit from such opportunities, on the presumption they were aspirations jointly held by the parties concerned prior to their separation;
·What are the costs of alternative accommodation for each of the parties?
·What are the implications of any particular property order, regarding an idiosyncratic piece of property, in respect of care/parenting arrangements for any relevant children?
·The interests of third parties.
In my view, underpinning all of these considerations, is the fundamental concept that, in considering what is a just and equitable outcome vis-à-vis one or other of the parties retaining a piece of real property, the Court must consider the practical effects of the orders for each party concerned and balance the logistical implications for each of them of each possible permutation.[31]
[31] See Phillips & Phillips (2002) 168 FLR 438.
The Full Court of the Family Court has identified three areas where it is appropriate to notionally add back, into a pool of matrimonial property, assets which do not exist or cannot be proved to be still existing.[32] The circumstances are as follows:
·where matrimonial assets have been used to pay the parties’ legal fees, thus diminishing the pool of assets available to be distributed between them and so creating a situation where the normal rule whereby each party should bear his or her own costs is defeated;[33]
·where there has been a premature distribution of matrimonial assets;[34] or
·where one of the parties has embarked on a course of conduct, either recklessly or with the direct intent to reduce or minimise the effective value of some item of matrimonial property.[35]
[32] See In the Marriage of Omacini (2005) 33 Fam LR 134 at 144 (Holden, Warnick and Le Poer Trench JJ).
[33] See In the Marriage of DJM and JLM (1998) 23 Fam LR 396.
[34] See In the Marriage of Townsend (1994) 18 Fam LR 505.
[35] See In the Marriage of Kowaliw (1981) FLC 91-092 at 76,644 (Baker J).
The Court generally eschews the notion of negative contributions. As such, the direct dollar for dollar adjustment for alleged dissipation of funds, should be the exception rather than the rule.[36] Recently, in Trevi & Trevi,[37] the Full Court has reiterated that the Court’s authority to add back is both discretionary and exceptional in nature. It is to be informed by what is just and equitable in the particular circumstances of the case concerned. The Full Court said as follows:
Two fundamental premises emerge from Omacini and the authorities preceding it. First, ‘adding back’ is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not ‘exceptional’ justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is ‘a course which is, perhaps, technically more correct’ than adding back to the list of existing interests in property.
[36] Watson & Ling [2013] FamCA 57 at [33]-[34] (Murphy J).
[37] Trevi & Trevi [2018] FamCAFC 173 at [30] (Alstergren DCJ, Murphy and Kent JJ).
The thrust of the husband’s case is that the wife has distributed assets to herself, during the course of the marriage and afterwards, which can be characterised as a premature distribution of marital assets in her favour, which principles of justice and equity dictate should be taken into account, either in direct dollar terms or by way of a percentage allowance favouring him.
The wife denies these allegations and asserts that whatever monies have been taken from bank accounts have been used by her for legitimate family purposes and no longer exist. As such, it would be both fundamentally unfair to her and extremely artificial to add back the sums of money calculated by the husband, into the pool of the parties’ assets, or take them into account in some other way in Mr Osman’s favour.
In NHC & RCH[38] the Full Court cited the decision of M & M[39] and indicated as follows:
·It is well settled that save in exceptional circumstances a trial Judge should deal with the property as at the date of the hearing and make adjustments taking into account the various matters set out under section 79.
·However, the particular justice of a case may justify the notional add back of assets which have been wasted or prematurely distributed to fund an extravagant lifestyle.
·Living expenses, after separation, are in a different category. Parties are entitled (and indeed must) support themselves financially. They are not required to go into suspended economic animation on separation.
[38] NHC & RCH (2004) 32 Fam LR 518, 532-3 [42].
[39] M & M [1998] FamCA 42.
Applying these considerations to the current matter, in my view, there is no evidence to suggest that Ms Gezim has ever enjoyed an extravagant lifestyle, either before or after the parties separated. In addition, I reject the proposition that there is any acceptable evidence to support the proposition that she has in some way secreted away assets, in the form of cash, in order to frustrate the husband’s claim. Rather, in my view, the available evidence indicates that she is hard working and frugal, utilising her financial resources in the support of herself and the parties’ children.
In these circumstances, in my view, it is just and equitable for the Court to construct an asset pool for division between the parties in respect of property and financial resources which can be identified as at the date of this hearing. Chiefly, this will be the Suburb C property and their respective superannuation holdings, along with their respective motor vehicles. It is to be regarded as a modest asset pool. In my assessment, there would be grave dangers arising, if the Court attempts to extend the asset pool by adding any hypothetical drawings to it. This would be unfair to Ms Gezim.
(b) Children’s Issues
Part VII of the Act deals with orders relating to children. Before making any particular parenting order, the Court must regard the best interests of any child concerned as the paramount consideration.[40]
[40] Family Law Act 1975 (Cth) s 60CA.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and some fourteen additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
As a result of the insertion of section 60CC(2A) into the Act the Court is directed, in applying the primary considerations… to give greater weight to section 60CC(2)(b). This, of course, is the consideration dealing with abuse, neglect, and family violence. These considerations are now to be given priority.
The application of the additional considerations depend on the particular circumstances of the case concerned. In the current matter, the following additional considerations have application:
·The views of the children [section 60CC(3)(a)];
·The nature of the children’s relationship with parents and other relatives, including grandparents [section 60CC(3)(b)];
·The likely effect of change, including being separated from a parent [section 60CC(3)(d)];
·Parental capacity and attitude to the responsibilities of being a parent [section 60CC(3)(f) & (i)];
·The children’s age and background, including aspect of lifestyle, traditions and culture [section 60CC(3)(g)];and
·The desirability of bringing the parenting proceedings to close and avoiding all concerned, including Y and X being exposed to further litigation [section 60CC(3)(l)].
In the present matter, I do not have any extensive evidence regarding the views of the children concerned. When they were each interviewed by Ms K, they had not significantly interacted with their father since their parents separated – only seeing him at community events. In this context, although neither was openly opposed to spending time with their father, they do not have any recent experience of this.
In this context, Ms K did not undertake any objective assessment of the nature of the children’s relationship, with Mr Osman, through some form of observed interaction. In my view, this is a significant deficit in the case, particularly given the controversy between the parties as to how the children have reacted to the June 2023 orders – the mother indicating the children find the time boring; the father indicating that they enjoy it.
The children’s cultural background is a rich and complex one. From the limited evidence I have, it is centred on regular attendance at their church, which members of the Country D community attend. In this context, Ms K reported as follows in respect of her interview with X:
[X] spoke warmly about how important her faith is, she loves going to Church and attends twice a week. [X] spoke about how it was important that she builds a connection with God, she enjoys going on outings with her church group.[41]
I have no reason to consider that church is not equally important to Y. In her oral evidence, one of the reasons Ms Gezim opposed an extension of the children’s time with their father was the possible disruption of their church obligations.
[41] Child Impact Report dated 23 June 2023 at [18].
Accordingly, I am concerned at bringing about a dramatic change in the current parenting arrangements which may be disruptive for the children, contrary to what they want and liable to cause more conflict between the parties concerned.
On the other hand, for obvious reasons, I am also gravely concerned at the implications, including in financial terms, of delaying the proceedings still more, to obtain a more comprehensive report.
X will be 14 years of age soon and Y will be 12. Ms K found X to be mature. She seems to be doing well at school. Her views about what should be the quantity of time and how it should be configured must be regarded as influential. Y is a little younger and does not seem to be as confident at school as her older sister.
Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Pursuant to section 60CC(3)(m) the Court may have regard to any other fact or circumstance which the court considers relevant. This is to ensure that the infinite variety of circumstances, arising in the life of each individual child who will be affected by the Court’s order, may be adequately addressed.
Because of the importance the legislature places on both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child.[42]
[42] Family Law Act 1975 (Cth) s 61DA.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence.[43]
[43] Family Law Act 1975 (Cth) s 61DA(2).
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned.[44]
[44] Family Law Act 1975 (Cth) s 61DA(4).
The application of the presumption requires the Court to consider a child spending equal periods of time with each parent or alternatively substantial and significant periods of time. Both such outcomes depend on the Court being satisfied that either such outcome are both likely to be in the child’s best interests and reasonably practicable to implement.
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
As I understand Mr Osman’s case, it is that Y and X will benefit from having a more meaningful level of relationship with him and, in order to do so, need to spend more time with him, ideally, as he put it to Ms K, equal time.
More recently, he has drawn back from this position and seeks something broadly analogous to substantial and significant time, as defined by section 65DAA(3) which means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
By necessary implication, Ms Gezim’s position is the presumption is rebutted by considerations of family violence and the proposal advocated by Mr Osman is not in the children’s best interests, primarily because the children do not have a strong relationship with their father; he lacks insight as a parent; and because Mr Osman’s proposal may impact upon church arrangements, it is not in accordance with the children’s views. It is also her position that the parties lack the practical skills to implement what she would characterise as Mr Osman’s very ambitious proposal.
(c) Family Violence
Family violence is defined by section 4AB(1) of the Act. It means:
[V]iolent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she sees or hears family violence or otherwise experiences the effects of family violence.
In assessing cases involving family violence, the Court needs to be aware of the nature of family violence, in general terms. Family violence, by definition, occurs most usually within the family and as such is not open to outside scrutiny. Most usually, it occurs behind closed doors within the private confines of a family home.
Its victims may feel a variety of emotions once they have been subject to it. They may feel shame or embarrassment and, as a consequence, feel disinclined to report it or even talk about it to others.
For obvious reasons, its perpetrators are unlikely to disclose their behaviour to others or provide full details of the extent of their conduct. Both the perpetrator of violence and its victim may be inclined to minimise the severity of what has occurred or excuse it in some way.
Accordingly, it is very often difficult, if not impossible, for there to be independent verification that family violence has occurred for protracted periods, during a relationship, if relevant authorities have only been involved in one extreme event, which cannot be concealed. However, the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.[45]
[45] See Eaby & Speelman (2015) FamCAFC 104 at [21] (Ryan J).
The effect of Ms Gezim’s evidence, particularly what she conveyed to Ms K, is that she was physically assaulted by the husband, when the family were living as refugees in Country D. On the family’s arrival in Australia, she indicated that physical abuse stopped but she was subject to verbal abuse and threats, which frightened her.
In addition, from what the children have said to Ms K, I accept that Y and X were exposed to family violence, in the sense envisaged by section 4AB(3). They saw their mother crying and seeking refuge in their room.
CONCLUSIONS IN RESPECT OF PARENTING
In this particular case, I find that the presumption of equal shared responsibility to be rebutted on the basis that I have reasonable grounds to believe family violence has occurred. In any event, in general terms, I do not consider that it would be in Y or X’s best interests for there to be an equal time regime or something proximate to it, at this point of time. In addition, given the long-standing mistrust between the parties, any such regime is likely to be derailed by considerations of overall practicality.
This does not abrogate the Court’s responsibility to consider the benefits likely to flow to the children of having a more meaningful level of relationship with their father. The aspects of a child’s life, in which a parent can be meaningfully involved, are, for obvious reasons, potentially multifarious.
They include engaging in fun activities conducted on holidays and weekends – essentially interacting with their parents in a relaxed setting – as well as the day-to-day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, and collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations.
A relationship does not necessarily become better, if a parent spends more time with a child but, for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain meaningful. Otherwise, there is a risk of a parental relationship becoming token in nature.
In Mazorski v Albright,[46] Brown J indicated that a meaningful parental relationship is one which is important, significant and valuable to the child concerned. In my view, meaningful child/parent relationships have both a quantitative and qualitative aspect to them.
[46] See Mazorski v Albright (2007) 37 Fam LR 518, 526 [26] (Brown J).
However, as the Full Court has also noted:
[H]aving a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.[47]
[47] See Jurchenko & Foster (2014) 51 Fam LR 588, 618 [123] (Bryant CJ, Thackray and Duncanson JJ).
It is Mr Osman’s case that he needs to spend more time with Y and X, in a variety of settings, to increase the sense of warmth and familiarity between him and them and so the children have a sense that he is involved in their lives on a regular basis.
The effect of Ms K’s evidence, when she assessed the relationship between the children and their father, in mid-2023, after several years of limited, if any engagement, was that an incremental approach needed to be engaged before any thought was given to any overnights or substantial time spending. It is also to be noted that this recommendation was made in the context of very significant concerns relating to family violence and in which it was considered Mr Osman needed to demonstrate his capacity to meet the children’s needs.
The difficulty arising at the present stage is that there is no independent expert evidence as to how Y and X have reacted to the gradual approach envisaged in the 30 June 2023 orders and, apart from the fact that he has completed a parenting course, how Mr Osman is currently placed to meet the children’s needs, in both a practical and emotional sense, over a lengthy period of time.
I can understand why both parties, particularly Ms Gezim, wished to avoid further adjourning the case so that a Family Report could be prepared, given the length of time the parties had been separated and the period the proceedings had been on foot. I also agree that the issue of who of them should occupy the Suburb C property needs to be determined.
However, these pragmatic considerations do not negate the fact that there is a limited amount of evidence regarding the views of Y and X and how they have each coped with the regime of time inaugurated in June of 2023 after, in practical terms, not having had a relationship with their father, for around five years. On any view, it is a long period of time.
In addition, I regard the issues of family violence raised in this case to be significant. In my view, in all the circumstances, a cautious approach remains warranted. It remains difficult to assess how the current regime can be extended, given the current quantity of evidence, so that the level of meaning in the children’s relationship with their father can be increased.
In this context, overnight time and any potential implications of this for church attendance on Sundays, are likely to be highly contentious – certainly given the paucity of evidence, an extension of time to include an overnight on Saturday seems to me to have at the least the potential to prove problematic.
For these reasons, balancing the benefits likely to derive to X and Y from extending their relationship with their father against the general uncertainty in the matter, what I propose is to extend the current arrangement from 9.00 am until 7.00 pm each Saturday.
I do not propose to dismiss the parenting aspect of the proceedings but will direct that a Specific Issues Family Report be prepared pursuant to section 62G of the Act directed towards assessing the children’s views as to overnight time and holiday time with their father and an assessment of the nature of their relationship with him, which is to include both interview and observed interaction.
I will direct the report be prepared in the second half of the year and released to the parties prior to 30 September 2024. The aim being to ascertain how the children have adapted to the extended time and what are their views as to further arrangements particularly in respect of holidays and special occasions.
In order to minimise expense and further exposure to legal process, on the release of the report, in the event that they are not able to agree a way forward, I will direct that the parties attend a process of community-based family dispute resolution. In these circumstances, I will list the matter for further directions on 24 October 2024 at 9.30am which date can be vacated if the parties forward an appropriate consent minute to the Court.
PROPERTY ISSUES - DISCUSSION
(a) The pool of property
For reasons already provided, I do not consider that this is a case concerned with add backs. In my view, considerations of justice and equity dictate that the Court should focus on assets/financial resources and liabilities readily identifiable. It is also important to recognise that the parties have been separated for a period approaching six years, during which they have led largely separate financial lives.
In these circumstances, in my view, it does not make sense to include later acquired property, such as motor vehicles, in the pool or modest amounts standing in bank accounts. The only evidence available in respect of the motor vehicles is that which is provided in the parties’ respective financial statements.
The husband has a Motor Vehicle 1, which he has personally valued at $2,000.00. The wife has disclosed a Motor Vehicle 2, which she estimates to be worth $10,000.00. The husband asserts this is undervalued but neither party has provided any independent evidence in respect of the motor vehicles.
In a case like the present one, it is not useful to focus on household contents – essential and as important as these are to the individuals concerned. The husband estimates his contents at $6,800.00; the wife hers at $15,000.00, all of which was acquired post-separation.
Accordingly, I approach the case on the basis that the pool of property available for division between the parties consists of the agreed value of the Suburb C property at $410,000.00 less the money owed on the mortgages to the CBA, which is agreed to be a whisker under $174,000.00,[48] leaving an equity of $236,000.00.
[48] See Case Summary Document of the husband filed 23 November 2023.
This valuation is now somewhat dated. As noted earlier the purchase price was $270,000.00 and the parties’ equity in it was modest, when it was acquired in mid-2009. During the approximately fifteen years since the property was first acquired the amount owing on the property has decreased by $91,000.00 and the value by $135,000.00.
However, neither party has sought a more contemporary valuation and, in my view, it is not in their interests to delay the proceeding to obtain one. More significantly, it would not be fair to put the home on the market to see what price it would command.
(b) Contributions
The relationship and marriage between the parties, which has produced five children, was one of significant length, being around 24 years in duration. During this period, particularly prior to them coming to Australia in 2004, each of them suffered great hardships and endured much.
As such, in my view, it is a remarkable achievement that in the years following their arrival in this country, they have been able to acquire the interest in the Suburb C property. They were able to do so because, due to their standing as citizens and given their stability and employment status they were able to convince the Commonwealth Bank and the SA Government, through the first home owner grant, that they were trustworthy and would maintain the mortgage granted to them.
In my assessment, this was a joint contribution of them both. At the same time, the parties were supporting a family. I accept that Ms Gezim was a dedicated and competent homemaker and as soon as she was able, she returned to the workforce. Mr Osman has also worked during the entirety of the parties’ time in Australia.
The period during which the equity in the Suburb C property has increased spans both nine years of the parties’ cohabitation and approximately six years of separation. This increase is attributable to market forces, which have led to rises in the value of residential property in Australia and the gradual reduction of the mortgage overtime.
In my view, neither party can claim great credit for the increase in the value of the property. I accept both have funded improvements to it – the husband the fixtures; the wife the kitchen and renovated outbuilding.
As previously indicated, it is Mr Osman’s position that he can claim credit for more of the reduction of the mortgage, given the date on which the parties separated. I am at pains to point out that the exercise I must follow is not analogous to an accounting exercise.
In this context, it is important to note that Ms Gezim has continued to contribute to the welfare of the family, in the period of separation, during which she has also had to pay significant sums in rent. In all these circumstances, I assess the parties’ contributions both in terms of family and parenting and towards the acquisition and preservation of the property concerned – although different in nature - to be equal for the purposes of these proceedings.
(c) Prospective Needs – section 75(2)
Mr Osman is aged in his mid-fifties. He faces some health challenges as he progresses towards retirement. It seems likely he will remain secure in his employment with N Company, where he has worked for almost twenty years – an achievement in itself. He is likely to be a secure but modest income earner for the foreseeable future, most probably until he qualifies for some form of aged pension.
It seems unlikely that he will contribute a great deal more to his superannuation in the next decade or so and will be reliant on social security to augment his superannuation. In these circumstances, having secure accommodation is likely to provide him with a significant level of security in his mature years.
Ms Gezim describes herself as a workaholic. This accords with my own impression of her. She has acquired several skills since arriving in Australia and has thrown herself into the workforce, often working arduous shifts in different jobs. She is almost fifty years of age.
Her health is good but whether she can continue to work as hard as she has done for the indefinite future cannot be a given. Given her obvious enthusiasm and pride in what she does, it seems more probable than not that she will keep working at the current levels for the foreseeable future and as such will generate a higher income for herself than that received by Mr Osman.
It has been said by the Full Court that the most valuable asset a party can take out of a marriage is a substantial, reliable income-earning capacity.[49] Due to their mutual hard work and reliability, each party, in this case, has a reliable income-earning capacity, if not one which can easily be described as substantial. Certainly, neither of them have been able to build up any significant nest egg to protect them from unseen financial exigencies.
[49] See Clauson & Clauson (1995) FLC 92-595 at 81,911 (Barblett DCJ, Fogarty & Mushin JJ).
It is in this context that both the emotional and financial significance of owning a piece of real estate arises. Such an asset represents a source of stored wealth, with the potential to increase in value, as well as a protection from the vicissitudes of the private rental market and indeed the inherent vulnerability of being a modest, and in the husband’s case, largely unskilled wage earner.
For each of the parties, the security represented by the bricks and mortar of a home cannot be under-estimated, particularly as each of them grow older and their time in the workforce grows shorter. In my view, neither party can be regarded as currently having an assured financial future.
However, undoubtedly the most significant difference between the two households is the fact that there are many more claims on Ms Gezim’s income than that on Mr Osman. Although Ms Gezim has the adult children at home to help her care for X and Y, the corollary of this is that she also helps support Mr G, Ms H and Mr J to a marked degree. I suspect that this may have some cultural overtones to it.
More significantly, Ms Gezim must financially support and parent X and Y and provide for their education, which is of the greatest importance to her. True it is that she will not bear the financial obligation alone, given Mr Osman has been assessed to pay child support.
In Clauson & Clauson [50] the Full Court said as follows:
The weight to be attached to a child support assessment will vary with the circumstances of each case, including the amount of the assessment, the financial circumstances of the parties, the needs of the children, whether the assessment is being paid regularly, and whether it is likely that it will continue to be paid at a regular and adequate rate in the future.
[50] Clauson & Clauson (1995) FLC 92-595 at 81,911.
Mr Osman is a PAYG taxpayer. I understand child support is deducted automatically from his wages. At the same time, it is likely to be the case that given their ages – 13 and 11 – X and Y will have many needs beyond those supplied by the child support provided by Mr Osman and the shortfall will inevitably fall on Ms Gezim’s shoulders because of the reality that the children are in her household, and she is responsible for them and must satisfy their requirements.
In this context, one of the most significant financial commitments Ms Gezim has is her rent in excess of $320.00 per week compared to Mr Osman’s mortgage payments of $295.00. Ms Gezim’s payment goes to providing accommodation for six members of the family; whilst Mr Osman’s goes only to him.
In addition, for obvious reasons, this represents dead money from Ms Gezim’s perspective, as it does not lead to any accumulation of wealth for her or provide her with long-term accommodation security. It is these factors which underpin her view that it is essentially unfair that Mr Osman should retain the Suburb C property.
Like Mr Osman, she too has a modest amount of superannuation but probably a little longer in the workforce to add to it. She too will most likely be reliant on the aged pension in retirement. I suspect her preference will be to keep working as long as possible. Her enthusiasm for and dedication to her work are admirable.
Bearing in mind, all these factors, I have come to the conclusion that it would be just and equitable to allow Ms Gezim another 10% in respect of the division of the property by reference to section 75(2) factors. The main factor supporting this conclusion being her responsibility to care for Y and X in her household.
CONCLUSION REGARDING PROPERTY ISSUES
I am satisfied that in all the circumstances of this case, it is just and equitable to make orders pursuant to section 79(2) of the Act. The marriage between the parties has clearly ended and the financial relationship between them must be brought to an end. The next issue is what form those orders should take and where individual items of property should lie.
This is the most difficult characteristic of the property aspect of the proceedings. It is the point at which abstract notions of justice and equity must become concrete. This is particularly so in respect of the disposition of the Suburb C property, in which each party has expended a significant level of resources both in financial and indeed emotional terms.
It is all very well to talk in percentage terms but what is important to the parties is what the orders mean in dollars and cents. More significantly, the resolution of the central financial and emotional issue in the case – who of the parties gets to keep Suburb C – is at the centre of deciding what will be a just and equitable outcome in the case from each of their perspectives.
In practical terms, the financial and emotional implications of who of the parties retains the Suburb C property cannot be replicated in percentage terms alone. Rather each will inevitably approach the issue as a matter of all or nothing, which cannot be compensated by a greater distribution of cash.
However, the Court cannot approach the issue on this basis and whilst recognising that it is not possible for both parties to retain the house it must still strive to reach the most just and equitable outcome in what must be regarded as invidious circumstances. Necessarily this must mean that one party will retain the house and the other will receive an amount of cash, calculated by reference to a percentage, which sum must be borrowed, given each party’s lack of liquidity and the absence of other assets.
In this context, in my view, borrowing capacity must be a central consideration in the resolution of the issue. In this respect, Mr Osman has provided evidence of his borrowing capacity, which is posited on the basis of the assistance of Ms H and a net advance, in addition to the current level of exposure to the Commonwealth Bank of around $139,000.00.
On the current valuation, this would leave him with an equity of around 16% in the property and the significant probability that the principal will never be repaid. In addition, his weekly mortgage payments will increase. Presumably, the Bank has considered that he has a capacity to meet the payments or they would not have offered the loan.
In my view, it must be regarded as a very significant matter that Mr Osman has occupied the property in the period approaching seven years since the parties separated. In such circumstances, in my view, it must be regarded as being oppressive to evict him from his home.
In this context, although it is not as secure as Mr Osman’s accommodation, for self-apparent reasons, Ms Gezim does have secure accommodation and, in my estimation, does have a capacity to find other accommodation if it becomes necessary. The major distinction between her and Mr Osman’s circumstances being the security of the accommodation being occupied and its capacity to be a store of wealth and, as such, a bulwark against future financial vicissitudes.
As previously indicated, I have not been provided with any evidence as to how favourably or otherwise a possible lender would look upon Ms Gezim. On the plus side, she would be able to demonstrate a good employment history and a capacity to earn a reasonable wage. She is also likely to have more years in the workforce than Mr Osman.
On the negative side, she would have to find a property in her price bracket, if she wishes to approach a lender and I accept, in general terms, it is harder to obtain a new loan than to re-finance an existing one. In addition, I do not know to what degree others of her adult children would be willing to assist her.
60% of the roughly calculated net equity in the Suburb C property is represented by a sum of $141,600.00, which is slightly beyond the maximum amount likely to be available to Mr Osman and takes no account of any transactional costs involved.
It seems probable that, if she so wishes, Ms Gezim would be able to approach a lender and secure an advance of a similar amount to that proposed for Mr Osman, given her superior salary. However, whether she wishes to investigate such an approach is a matter for her.
The chief advantage of the outcome I propose is that it will liberate the maximum amount of marital capital from the former family home and, I hope, enable each of the spouses concerned to have a stake in the property market, with all the emotional and financial benefits such a stake entails. Given the shared background of the parties, I hope I appreciate how important such a stake is likely to be for each of them.
In all these circumstances, in my view, it would represent a just and equitable outcome in the case if Mr Osman advances to Ms Gezim the sum of $140,000.00 in consideration of the transfer to him of her interest in the Suburb C property. I will allow him a period of sixty days to complete the necessary formalities. However, if he is unable to comply with this regime, the property will have to be sold and the proceeds, after payment of the costs of sale and the discharge of the mortgage divided 60/40% in the wife’s favour.
Given their near parity, each party should retain their respective superannuation balances and the other items of property in their respective control to the exclusion of the other. The outcome I propose would end the parties’ financial relationship with one another.
At the end of the process, I have not found this an easy case to determine. I acknowledge that the process is perhaps not best suited to the needs of the parties themselves and has taken too long to be finalised. Regrettably, there are still some loose ends to follow so far as arrangements for Y and X are concerned.
Although this has been designated a small property pool case, the irony is that cases involving small pools are sometimes more challenging and difficult than cases where there are significant sums available. This is because, in such cases, as in the current matter, scarce assets must be carefully divided between parties in circumstances in which the financial needs of each of the parties concerned are axiomatically far greater than the assets available to supply those needs.
In all these circumstances, I have reached the conclusion that the outcome I propose represents a just and equitable outcome in the case. For all these reasons, the orders in the case will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and thirty-four (234) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 12 March 2024
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