Gillies and Victor

[2017] FCCA 605

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILLIES & VICTOR [2017] FCCA 605

Catchwords:
FAMILY LAW – Application for final parenting, property orders and spousal maintenance – contributions in a short marriage – asset-by-asset or global approach – shared care of three year old child.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 61DA(1), 60CC(2), 60CC(3), 65DAA(3), 65DAA(5), 72(1), (2), 75(2), (3), 79

Cases cited:

Stanford & Stanford [2012] HCA 52
Bevan & Bevan (2013) FLC 93-545
Norbis v Norbis (1986) FLC 91-712
McMahon & McMahon (1995) FLC 92-606
Lovine & Connor & Anor (2012) FLC93-515
Fielding & Nichol [2014] FCWA 77 at [42]
Steinbrenner & Steinbrenner [2008] famCAFC 193
Robb v Robb (1995) FLC 92-555

Applicant: MS GILLIES

Respondent: MR VICTOR

File Number: HBC 550 of 2015

Judgment of: Judge McGuire

Hearing dates: 23 & 24 March 2017

Date of Last Submission: 24 March 2017

Delivered at: Launceston

Delivered on: 25 May 2017

REPRESENTATION

Counsel for the Applicant: Mr Trezise

Solicitors for the Applicant: Dobson Mitchell Allport

Counsel for the Respondent: Mr Foster

Solicitors for the Respondent: Murdoch Clarke

ORDERS

Child Orders:

(1)That the parents have equal shared parental responsibility for the child X born (omitted) 2013 (“X”).

(2)That X live with the father as follows:

(a)Until January 2019:

(i)In week one from Friday at 3.00 p.m. until Sunday at 3.00 p.m.;

(ii)In week two from Thursday at 3.00 p.m. until Sunday at 3.00 p.m.;

(iii)On a week about basis during the Tasmanian gazetted summer school holidays in 2017/18; and

(iv)Such other times as may be agreed between the parents from time to time.

(b)From 1 January 2019:

(i)In each second week for 7 days between Friday at the conclusion of school or 3.00 p.m. if not a school day and the following Friday at the conclusion of school or 3.00 p.m. if not a school day; and

(ii)Such variations of the above or other times as agreed between the parents from time to time including on special days with each parent as agreed.

(3)That X live with the mother at all other times and such variations as agreed between the parties from time to time including time on special days with each parent as agreed.

(4)That changeovers for X’s time with her parents that do not occur at school take place at the appointed times at the (omitted) Store or otherwise as agreed between the parties.

(5)That X be enrolled in the (omitted) Primary School for her primary school education or such other school as may be agreed between the parents in writing.

Property Orders:

(6)That within 60 days of the date of these Orders the husband pay to the wife a lump sum of sixteen thousand, five hundred and twenty five ($16,525).

(7)That contemporaneously with the payment in [6] hereof, the husband shall:

(a)Transfer all his right, title and interest in the following to the wife absolutely:

(i)The wife’s land at Property C in Tasmania;

(ii)The wife’s caravan;

(iii)The motor vehicle registered in the name of the wife or in her possession or control as at the date of these Orders;

(iv)The balances of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these Orders;

(v)All personalty and chattels in the possession of or under the control of the wife as at the date of these Orders;

(vi)The wife’s superannuation policies and entitlements.

(b)Be solely responsible for and indemnify the wife in respect of the following:

(i)Any liabilities attaching to any asset retained by the husband pursuant to these Orders;

(ii)Any and all liabilities incurred by the husband since separation either in joint names or in his name alone.

(8)That contemporaneously with the payment in [6] hereof, the wife shall:

(a)Transfer and/or vest all her right, title and interest in the following to the husband absolutely:

(i)The husband’s property at Property S in Tasmania;

(ii)The husband’s boat;

(iii)Any motor vehicle registered in the name of the husband or in his possession or control as at the date of these Orders;

(iv)The husband’s shareholdings;

(v)The balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these Orders;

(vi)All personalty and chattels in the possession of or under the control of the husband as at the date of these Orders;

(vii)Subject to these Orders, any superannuation policies or entitlements of the husband.

(b)Be solely responsible for and indemnify the husband in respect of the following:

(i)Any liabilities attaching to any asset retained by the wife pursuant to these Orders;

(ii)Any and all liabilities incurred by the wife since separation either in joint names or in her name along.

(9)In accordance with paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to the husband from his interest in (omitted) Superannuation (“the fund”), the trustee of the fund pay to the wife an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $20,000 and there be a corresponding reduction in the entitlement of the husband.

(10)The husband be restrained by himself, his servants or agents from making any binding death benefit nomination to the trustees of the fund in favour of any person or doing any act or thing which would render any part of his interest a “non-splittable payment” or in any way diminish the value to the wife of the splitting order made in order 9 hereof.

(11)These orders are binding on the trustee of the fund, it having been accorded procedural fairness.

(12)Order 9 has effect from the operative date.

(13)The operative date for this Order is four working days after the service of a sealed copy of these orders upon the trustee of the fund.

(14)Each party and the trustee of the fund have liberty to apply in relation to the implementation of the orders affecting the superannuation interests of the parties.

(15)That Orders 9 and following above are made conditional upon the husband and wife jointly obtaining the consent of the relevant superannuation fund by way of procedural fairness in respect of the splitting order and in this respect the parties or each of them have liberty to apply.

Spousal Maintenance:

(16)That the wife’s application for spousal maintenance be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gillies & Victor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 550 of 2015

MS GILLIES

Applicant

And

MR VICTOR

Respondent

REASONS FOR JUDGMENT

1.The parties here are in dispute over the parenting arrangements for their one child, X born (omitted) 2013 (aged 3 years) (“X”).

2.The applicant wife also seeks orders altering the parties’ property interests pursuant to s.79 of the Family Law Act 1975 (Cth) (“the Act”) together with a spousal maintenance order of $175.00 per week.

3.The parties commenced cohabitation in 2010 and were married on (omitted) 2011. They separated on 10 March 2014. X was therefore just 6 months old when they separated.

4.X is the only child of the husband. The wife has 3 older children from previous relationships being Ms S who is an adult; A aged 16 years; and B aged 10 years.

5.Interim orders were made by consent on 19 October 2015 whereby X lived with the husband each weekend between 3pm Friday and 3pm Sunday and otherwise lived with the wife.

6.The wife is in receipt of Centrelink benefits and says that she is not currently re-partnered.

7.The husband works as a (occupation omitted) with (employer omitted). He has not re-partnered.

8.The husband lives in the former matrimonial home at Property S which is a property he owned prior to the commencement of the relationship. The wife lives in rented property near (omitted) in Tasmania which is approximately 40 minutes travel from the husband’s home. Surprisingly, however, the parties have agreed in the interim that changeovers for X on Fridays and Sundays take place at the home of the maternal grandparents in (omitted) which is on the (omitted) of Hobart city and not proximate to either parties home. Indeed, it seems to me that the wife must effectively travel past the husband’s home and continue for some 30 minutes or more to deliver and collect X. The rationale of such an unusual arrangement was not fully apparent to me from the evidence although the husband claimed that the use of any other venue, even if a public one, would result in antagonistic behaviour by the wife towards him.

Parenting matters

The wife’s case

9.The wife seeks an order for equal shared parental responsibility but that X live primarily with her. She proposes that X spend each alternate weekend with the husband being from Friday at 4pm until Sunday at 3pm until X commences school and then from the end of school on Friday until the start of school on Monday in one week and overnight on Thursday in the other week. She proposes that term school holidays for X be shared between her parents and that X spend one week from 1 January with the father in each Summer school holidays together with time on special days.

10.The wife proposes that changeovers for X which do not take place on school days will occur at the home of the parent relinquishing X’s care.

11.The wife argues that considerations of equal time are excluded by reason of the parties’ poor personal relationship and poor mutual communication. She says that they have a history of failing to reach any reasonable agreements in respect of X. They continue to argue as to which school she shall attend and this remains a discrete issue for me to determine.  She says that there is angst and conflict between the parents at changeovers. She says that the parties have diverse parenting styles and philosophies and that they lack mutual respect as parents. She says that there are geographical considerations which argue against the practicality of an equal shared time arrangement or even for X to spend more ‘substantial and significant time’ with the husband.

12.The wife argues that she has been the primary carer for X to date. She says that X is progressing well and is forming social attachments.  The wife points to the fact that, despite all of the above, both the husband himself and the family reporter recognise a close and bonded relationship between X and her father.  The wife says that this can be attributed to her insight and understanding that X needs a relationship with the husband and she has contributed to that successful relationship despite her own poor relationship with him.

13.The wife wants X to go to the (omitted) Primary School as from 2019 as this is both proximate to her home and attended by her son B.

The husband’s case

14.Mr Victor proposes an equal time regime for X between her parents.  The husband agrees that the parties have an untrusting, uncommunicative and non-cooperative relationship.  He anticipates, however, improvement in those areas. He agrees that he and X have an established, successful, comfortable and attached relationship as observed by the family reporter. He says this has occurred despite, not because of, the mother’s attitude towards him and his relationship with X.

15.The husband proposes that X attend the (omitted) Primary School. This is approximately 30 minutes travel from his home and only 10 minutes from the wife’s home. He says that he can make practical arrangements for his employment so as to be able to deliver and collect X from school.  The husband concedes that he and the wife have different parenting styles but argues that X will ultimately benefit by that breadth and diversity of style and role model.

Relevant law – parenting

16.Section 61DA(1) of the Act offers a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. ‘Parental responsibility’ is often defined as being the obligation to make longer term decisions for a child in matters such as education, religion, medical procedure and the like as opposed to the more mundane day to day decisions that parents make for children.

17.Each of the parents here argue that there should be an order for equal shared parental responsibility despite their own untrusting and acrimonious relationship.  Notably, this matter does not feature issues of family violence which would render the presumption not applicable.

18.Significantly for the issues now before me, an order for equal shared parental responsibility enlivens in the Court a statutory and intellectual course of consideration as to whether firstly, X’s best interests would be served by an order for her to live in an equal time arrangement between her parents and if such a regime would be reasonably practicable? If the answer to either of those questions is in the negative then the Court must turn to consider whether X living in a ‘substantial and significant time’ regime between her parents is both in her best interests and reasonably practicable.

19.Section 65DAA(3) of the Act defines ‘substantial and significant time’ as:

(a)     the time the child spends with the parent includes both:

(i)days that fall on weekends and holidays; and

(ii)days that do not fall on weekends or holidays; and

(b)the time the child spends with the parent allows the parent to be involved in:

(i)the child's daily routine; and

(ii)occasions and events that are of particular significance to the child; and

(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

20.Section 65DAA(5) assists with the notation of ‘reasonably practicable’ by the Court having regard to:

(a)how far apart the parents live from each other; and

(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

21.X’s best interests are determined by the Court referencing the probative evidence and the parties’ proposals to the numerous considerations set out in ss.60CC(2) and 60CC(3) of the Act. Those considerations stem from the objects and principles of the Act set out in s.60B as follows:

(1)The objects of this Part are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

22.Section 60B(2) set out the principles underlying these objects and that accept when it is or would be contrary to a child’s best interest:

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

The evidence – parenting

The wife

23.The applicant wife relied on her trial affidavit filed on 20 February 2017. She was extensively cross examined.

24.The wife deposes that she has been X’s primary carer. She acknowledges an established and meaningful relationship for X with both parents. She says that she does not have a communicative or trusting relationship with the husband whom she says is heavily focused on criticism of her parenting of X. She says that the orders sought by the husband will impact negatively on X’s relationship with her siblings and, in particular B and A, and says also that the current arrangements whereby X spends no weekend time with her mother also acts against those sibling relationships.

25.The wife proposes X attends the (omitted) Primary School which is close to her home. She says it is a good school and the one currently attended by her son, B. Conversely she argues that the husband’s proposal for equal time is impracticable and not ultimately in X’s best interests where she will shortly be negotiating a transit to attending school.

26.The wife says that she is a demonstrated good and devoted mother who has attended to X’s care despite personal difficulties including her own physical ailments and her daughter A unfortunately suffering a cancer diagnosis. The implication of the wife’s evidence is that X’s acknowledged close and bonded relationship with her father is to be seen as a credit to and result of the wife’s objective and successful primary parenting of X to date.

27.My observations of the wife were generally of a credible and honest witness, albeit sometimes casual in her responses and prone to criticism of the husband’s parenting and motivation for pursuing equal time with X. She suggested financial motives or bitterness towards her rather than a genuine desire to have a relationship with his daughter as grounding the husband’s application. She presented as accepting of the current poor personal relationship between her and the husband and did not show any keenness towards at least a working relationship with him in respect to X’s parenting.

28.I detected the wife having a relaxed, easy-going and uninhibited parenting style and certainly so when seen as against the husband’s more rigid and traditional attitude to parenting. She showed a more rigid and traditional willingness to delegate the actual parenting of some or all of her children and to perhaps render a degree of maturity and self-sufficiency her children beyond their years.

Mr M

29.The wife adduced evidence from her father albeit solely in respect of property matters. Nevertheless Mr M was also cross examined in relation to parenting issues. He confirmed that both X and B spend considerable time staying with he and his wife at (omitted) including for a period of 6 weeks when the wife was with her older daughter A in Melbourne after A’s diagnosis. Mr M confirmed that B spends “3 out of 4 weekends” and sometimes longer weekends with he and his wife at (omitted). Mr M confirmed in cross examination that it was he who insisted that B attend (omitted) Primary School during the mother’s absence in Melbourne with A as against the mother’s proposal that B simply undertake work from his usual school at home.

The husband

30.The husband relied on his affidavit sworn on 8 February 2017. He was cross examined. He deposes to an informal arrangement for he to spend time with X being unilaterally terminated by the wife contemporaneously with the commencement of financial proceedings in this Court. The husband says that the wife leaves X in the care of her parents rather than utilising him as an option including for a period of 6 weeks in July and August 2016 and on another occasion when she went for a holiday with her then boyfriend. He says that the wife has refused to communicate with him in respect of matters concerning X including refusals to attend for formal mediation at a family relationships centre.

31.The husband admits that he and the wife have different parenting styles but argues that X will benefit by greater exposure to his own hands-on and stricter parenting practices. He criticises the wife’s more laissez-faire parenting style and references the fact that she has allowed her daughter A, now aged 16 years, to live with her boyfriend on weekends since she was just 14 years of age. The implication of the husband’s evidence is that the wife prioritises her own interests over those of the children, including his daughter X, and is prepared to delegate care of the children, although not to him.

32.The husband deposes that he has always been a dedicated, keen and active parent for X whilst also being the major financial provider for the family unit including a period as a fly-in/fly-out worker. He says that he can now organise his own work commitments to attend to X’s care on a week-about basis and that the successful and strongly bonded relationship between he and X is a testament to his efforts thus far at parenting his daughter.

33.The husband displayed a very different personality to the wife. Whilst she was more casual in her approach and in her responses, he was more direct, assertive and in a way which perhaps reflected his (occupation omitted) background. Like the wife, he was keen to criticise the other parent. Nevertheless, I found him generally to be a witness of the truth and I accept his bona fides in respect of his application and therefore reject the ulterior motives suggested by the wife. His attempts to convince the Court of his devotion to parenting X at times disclosed a certain naivety or lack of understanding of the practicality of caring for a child on a week about basis. For example, his spontaneous volunteered response at one stage that he would move to part-time employment does not appear to be child focused or properly thought through.  Similarly, whilst professing a child-friendly and flexible work environment, he did not adduce any evidence from his employer to confirm his evidence or to detail how such arrangements might operate.

34.The husband’s evidence demonstrated a certain rigidity in his personality which sits uncomfortably against the more relaxed personality of the wife. Whilst he professed a willingness to achieve a greater degree of co-operation and communication, his steadfast refusal to consider any options outside of the current onerous changeovers for X at (omitted) do not give cause for optimism in this regard.

Ms J, Ms D and Mr D

35.The abovenamed swore affidavits on 10 and 11 May 2016 and in support of the husband’s parenting case. None of the deponents were required for cross examination and accordingly their affidavits were read into evidence. Each of the deponents was generally complimentary of the husband’s skills and commitment to his parenting of X.

Family Report

36.The Court is greatly assisted by the family report dated 6 February 2017 authored by Family Consultant, Ms L. Ms L gave evidence and was cross examined. At paragraph [56] Ms L addresses the father’s application for equal time for X between the parents as follows:

If it were not for the issue of the distance between the parent’s homes, there would be merit in considering that X live in an equal time arrangement. She already has the benefit of solid relationships with each parent, having spent weekends and overnights with her father from a young age. This would provide sufficient foundation for her to live with each of them. If her parents lived close to each other, X could participate in community life and social and sports events in the one location. Changeovers could take place at school to enable X to be protected as much as is possible from her parents’ dislike of each other, and X would experience relationships with her parents in a full weekly routine. It was not canvassed with either parent, with both giving the definite impression that they will not consider moving house, but their living closer to each other would be likely to benefit X.

37.In cross examination from the wife’s counsel, Ms L agreed that important ingredients of a successful equal time regime include a co-operative and communicative relationship; mutual respect as parents, comparable parenting styles and philosophies, comfortable changeovers, and geographical proximity. Ms L agreed that a number of these factors were missing from the relationship between the husband and the wife here but volunteered with some force that her main concern was that of geographical practicality. Ms L noted that, whilst differences between the parents were apparent, it seemed that X had established a successful, loving and bonded relationship with each of her parents at a young age and perhaps contrary to much of the social science which purports to guide trial judges in determining the living arrangements for young children. When put to her by counsel for the husband that the husband’s proposal would have X eventually attending the (omitted) Primary School which would involve 10 minutes travel from the wife’s home and 30 minutes travel from the husband’s home, Ms L agreed that this would be a workable arrangement and would alleviate a major obstacle for her recommendation in respect of equal time sharing.

38.Ms L was also concerned that X be able to develop and maintain valuable relationships with her siblings.  It was put to her, however, the evidence that A spends each weekend at Property C living with her boyfriend and his family whilst B spends the majority of weekends with the maternal grandparents at (omitted). Against this factual platform, Ms L confirmed the importance for X of her relationship with her father. She opines at [57]:

It is suggested that X’s time with Mr Victor not be reduced. One weekend each fortnight is not sufficient for her to maintain a strong well-rounded relationship with Mr Victor and X would very likely experience not seeing him as a significant loss. It is possible that her behaviour when with her mother on return from her father is a reflection of missing him and his close attention or adjusting to the change in environment.

39.Ms L concludes at [59]:

Under the current conditions related to where the parents reside, while not ideal, it is suggested that X live with Ms Gillies and spend the weekends with Mr Victor until she starts full time school, then spend two out of three weekends with Mr Victor (to enable her some alternate weekend time with her siblings and to be involved in local sporting and community activities). If in the future, practical and logistical issues allow, it is suggested that consideration be given to X living in an equal time arrangement once she has moved into early school age. It may be that, as circumstances change and her siblings move beyond the family home, alternative parenting arrangements may be worth considering.

40.In summary, I understood Ms L to be generally supportive of an equal time arrangement for X between her parents given the strong relationships that have fortunately developed for X with each of the parties but with consideration given to geographical logistics and maintaining relationships with the siblings.

Section 60CC factors

Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both the child’s parents.

41.This is, of course, a consideration at the very philosophical basis of the Family Law Act 1975. Whilst there is much social science debate and conjecture as to whether infant and pre-school age children are able to develop multi-attachments including with their separated parents, the factual platform here might present as a case study to put such debate to rest. Despite extreme personality differences and diversity of parenting styles, and to the great credit of these two parents, X has, on everyone’s evidence, managed to establish a comfortable, loving, successful and attached relationship with both her parents at just 3 years of age when she was an infant of 6 months at her parents’ separation. As identified by the family reporter, the task for the Court is to structure orders and a parenting regime which assist X in maintaining those important relationships and assisting them to flourish.

Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

42.Fortunately for X, matters of family violence do not feature in the evidence before me although there is an underlying suggestion from the husband that X might be exposed to conflict between he and the wife should changeovers take place other than in the company of the maternal grandparents at their home at (omitted).

Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

43.X is just 3 years of age and is not capable of forming rational views or preferences. Notable, however, were the observations in the family report of X’s comfortable and warm relationship with each of her parents. Nevertheless, at [40] of the family report Ms L reports:

X delighted in talking about the books her father reads and the special book about a pirate that she received at Christmas time from Santa at her father’s house. X appeared to know that the parenting arrangements are a point of discussion between her parents. She volunteered “I want to stay with Mum”. The family consultant did not ask X questions related to the parenting arrangements, to other contentious issues or what each parent is seeking.

44.The contents of this paragraph of the family report were not pursued by either Counsel in cross examination of Ms L or of the other party and I am unable to determine (and perhaps it is unnecessary) whether either of the parents had attempted to influence X prior to the interviews with Ms L.

Section 60CC(3)(b) - the nature of the relationship of the child with: each of the child's parents; and other persons (including any grandparent or other relative of the child).

45.This consideration can be summarised by observations of Ms L at [47] thus:

X is at a developmental age when she has progressed through the process of attachment to her carers. The information from the interviews and observations suggest that X has developed secure relationships with her parents, able to comfortably be apart from one or other for periods of time, as a result of spending significant amounts of time with each of them and successfully transitioning through infancy and toddlerhood towards increased independence from them. X also appears well attached to her siblings.

Section 60CC(3)(c) - the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time with and communicate with the child

46.The wife has assumed a form of entitlement or “parent has a right” in respect of X. Given the consensus to the established relationship between X and her father, it is unfortunate that the wife chose to utilise the assistance of her own parents rather than the husband to care for X during her absences on the mainland, firstly for 6 weeks when assisting her daughter A through her cancer diagnosis and also when she enjoyed a holiday with her friend. Consistent with some of her criticism of the husband in Court, I can only assume that the wife made these poor choices by reason of her own personal and residual dislikes of the husband rather than some objective focus on the best interests of X.

47.The wife in her evidence in Court volunteered a suggestion that the husband is motivated by child support considerations rather than the best interests of his daughter. The evidence of the husband in Court and the unchallenged evidence of his supporting witnesses satisfies me to the contrary.

Section 60CC(3)(ca) - the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

48.I am satisfied that each parent has properly discharged their obligations to financially support X.

Section 60CC(3)(d) - the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person with whom she has been living.

49.The husband’s proposal would significantly change X’s living regime where she currently lives primarily with her mother and spends two nights each weekend with her father. I note general social science opinion as to the benefits for a young pre-school age child of having a single home base and exposure to a primary parenting style and model as opposed to imposing on a young child a variety of parenting styles and the need to adapt to living in two homes. Nevertheless, there is no evidence before me other than that X transfers between her parents successfully. Again, the force of the evidence is that X has a comfortable and established relationship with her father. The husband’s proposal would, of course, cause X to be away from her mother for a seven day period. Notably however, X has been able to stay with her grandparents successfully for long periods away from her mother. The husband’s proposal would also see only one transition for X each week rather than the current two changeovers.

50.The family reporter placed some weight on the maintaining of X’s relationship with her siblings. They are, of course, much older than X and, in the case of A, are well into the process of independent living. The husband’s proposal would obviously create gaps in these relationships but X has been able to establish and negotiate a number of important relationships with various family members.

Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

51.This is a consideration which troubled the family reporter by reason of geographical distance between the parties.  The wife lives near (omitted).  The husband lives at Property S.  The husband's proposal is that X attend a school between the parties’ two homes but only some 10 minutes from the mother's home.  The mother argues that X attends a school at (omitted).  In my view, neither proposal for X’s schooling creates any practical difficulties.

52.The husband is employed.  He starts work at around 7.00 a.m.  He has every second Friday off work.  He says that his work arrangements are flexible in that he essentially works by himself.  He maintained under cross-examination that he would be able to get X to school and collect her on the four days a fortnight that she would be with him on his work days and where he would not be working on the Friday.

53.The other practical difficulty is the current changeover arrangement which happens at (omitted) on Hobart's (omitted).  For this to occur, the wife must effectively drive past the husband's suburb and continue on for about half an hour.  Frankly, I see little or no utility in this arrangement. 

Section 60CC(3)(f) - the capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs.

54.The wife has been X’s primary carer.   The evidence is that X has met all her milestones and is a socialised little girl who moves easily between the parent’s homes.  This is a credit to the wife in that her daughter has reached such a degree of comfort despite her mother’s overt antagonism towards her father.  These parties are of very different personality and parental model.  The wife has readily enlisted assistance from her family to care for X and her other children.  There appears to have been no deleterious impact for X.  Whilst the wife is very capable in caring for X’s physical needs, she does not always show insight into the need for X to have a full and meaningful relationship with her father.  Again there is no plausible explanation for the wife leaving X with her own parents rather than taking up Mr Victor’s offer to care for her.

55.The husband's willingness to care for X and keenness to be involved in her upbringing is palpable.  There is no doubt that X is comfortable in his care and thus far all indications are of a high capacity of aptitude and insight in him as a parent.  There are, however, some practical considerations.  He works full time on nine days per fortnight. He starts work soon after 7.00 a.m.  He adduced no evidence from any potential support.  He did not to bring corroborative evidence to Court in respect of his claim flexibility in his work hours.  In any event, any flexibility would be severely tested by his work obligations on his proposal to care for X before she commences school in 2019. 

Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents.

56.X is yet very young.  Contemporary social science suggests that pre-school aged children benefit from the stability and routine of one home base with a primary attachment to one parent.  The husband's proposal is far more adventurous.  Nevertheless, all of the indications are of a strong and established relationship for X with each of her parents although, of course, she is not tested in the week-about arrangement proposed by the husband.

Section 60CC(3)(h) - if the child is an aboriginal child or Torres strait Islander child.

57.Not relevant.

Section 60CC(3)(i) - the attitude of the child and responsibilities of parenthood, demonstrated by each of the child's parents.

58.I am satisfied that both parents have a proper and responsible attitude to the parenting of X.  The fact is, however, that they present an often diverse styles and parenting philosophies.  The wife offers a more relaxed attitude.  She is prepared to ask others to care for her children.  The husband is more conservative and rigid in his style and parenting views.  Nevertheless, the observations of the family reporter were of X being comfortable with the each of her parents. 

Section 60CC(3)(j) and (k) - family violence and family violence order.

59.Not relevant.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

60.The ideal is, of course, that separated parents maturely and objectively agree arrangements for their children following separation.  If they cannot do so then the Family Courts offer numerous facilities and forum to assist them to reach consensus.  It is only then and if such agreement as is not reached that there will be litigation and parenting arrangements imposed on the parents and the children.  If this occurs then it is the obligation of the parents to accept the objectivity of Court orders being, on the balance of probabilities, made in the best interests of their children.  To put it bluntly, ongoing litigation is destructive of parental communication and cooperation into the future. 

61.As mentioned above, Ms Gillies and Mr Victor have firm but diverse styles and expectations in respect of X and her parenting.  They have, however, surprisingly achieved a situation where their young daughter is at ease with each of them and apparently benefits by their diversity rather than suffers because of it.  Whatever the regime imposed by these orders, X will continue to enjoy a relationship with the both of the parents and it is for the parents, guided by these orders, to move forward together in the parenting of X.

Findings and Conclusions

62.I am easily able to find that X has an established and meaningful relationship with each of her parents. She transits comfortably between them.  The evidence of the family report suggests that X benefits from the differences in parenting style and personality of her parents.

63.I am satisfied that each of the parents has a capacity to attend to X's needs and each has done so to date albeit consistent with their own personalities and the current regimes only weekend time for X with her father.

64.The husband proposes an immediate move to an equal time arrangement.  The wife argued for a continuation of the each alternate weekend regime until X commences school in 2019 and that the time then extend to Monday morning of the husband's weekend and one night overnight in the other week.  She agrees that term school holidays be shared and that X spend one week with the husband during his summer holiday.  This argument has some merit if only in that X has quite obviously been able to establish, maintain and flourish a relationship with her father by seeing him only on each second weekend.  The wife's argument would essentially therefore preserve a settled and successful status quo with the wife as the primary carer.  It would allow X to spend more time with her siblings.  It would allow easy travel to school whether it be at the wife's or the husband's preferred school location.

65.The husband argues for an equal time arrangement immediately.  He says that this will allow X's relationship with him to properly and fully develop and will give X the benefit of understanding her parents to be equals in taking responsibility for her and being involved in her life.

66.Mr Victor says that he can arrange his work to care for X each second week.   I am not, however, persuaded on the evidence that he has such an immediate capacity.  X is not yet of school age.  The husband's proposal would give him full-time responsibility for her care on seven days per fortnight which would coincide with him working on at least four of those days.  He did not give or adduce evidence to satisfy me that he has any or any proper support or that his claimed flexibility of work arrangements can achieve this adventurous ambition.

67.Nevertheless, his responsibility for the direct care of X will be relieved somewhat when she commences school in 2019.  He would be required to deliver her to and collect her from school during his formal work hours.  His evidence as to the nature of his employment which allows him to work at home and travel away from his work base combine, however, to satisfy me on the balance of probabilities that he could discharge these responsibilities.

68.I am grateful for the family report which was insightful and objective in respect of this particular factual platform and the personalities and child involved.  I might comment that it serves to assist a Court where a family reporter does not feel bound to religiously follow popular social science which in my experience can be a moving feast of subjectivity and critical analysis.

69.Whilst I am unable to find that these parents will easily achieve any high degree of communication, cooperation, trust or respect, it is notable that each of them seeks an order for equal shared parental responsibility which implies a willingness to cooperate at least in the long-term decisions for X.  Logically, there should be no reason why such a willingness should not extend to the daily care of their daughter.

70.I remain surprised but impressed by X’s achievements despite her parent’s animosity, personality differences, and parenting role models.  Notably, these differences were highlighted by the family reporter who nevertheless indicated the benefits for X of an equal time arrangement between her parents if the practical considerations could be alleviated.  In cross examination, Ms L confirmed the benefits to X of spending equal time between her parents. 

71.I am not satisfied that there are any practical considerations that would prevent X living in an equal time arrangement between her parents once the husband's practical obligations are alleviated to a degree by X attending school.  The travel for the husband to take X to and collect her from school is, in my view, not insurmountable on the basis of his evidence as to his commitments and flexibility.  On the other hand, there are obvious benefits that could accrue to X from such a regime.  She would spend more time with her father with whom she has an excellent and loving relationship.  This in turn would give her more time to enjoy the husband's style of parenting and, in my view, fully complement the benefits of the mother’s own parenting style.  Such an arrangement would also give X weekend time with her mother.

72.I am satisfied, therefore, that it would be in X’s best interests and reasonably practicable from the time she commences school in 2019 for her to live in an equal time arrangement between her parents on a week-about basis.  She is a socialised young girl.  She has experienced being separated from her mother for lengthy periods of time and without any evidence of negative impact on her.

73.I am of the view that an equal- time arrangement should occur from 1 January of 2019 so as to allow some time for her to settle into the new arrangement before entering the school system.  X will continue to spend each weekend with her father in the interim.  However, given he has each second Friday off work then on those weeks the time will commence on the Thursday at 4.00 p.m.

Changeovers

74.The husband is steadfast in his resolve that the changeovers for the above orders continue to take place at (omitted).  The wife is more flexible and practical in this regard and suggests a midway point between their two homes.  Although the husband fears exposure for X to her parents’ conflict, both parents now espouse a willingness and ambition to improve their parenting relationship.  Frankly, the travel for X under the current arrangement is both onerous and unnecessary.  I prefer the wife's proposal and will order that changeovers occur at the (omitted) shop or otherwise as agreed between the parties.

X’s school

75.The husband proposes that X attend the (omitted) school which is between the parents’ homes but closer to that of the wife.  Ms Gillies prefers that X attend the (omitted) primary school which is near to where she lives.  A primary reason is that X’s older brother B attends that that school.  Nevertheless, my mathematics suggest that B will have left primary school (or be close to doing so) by the time X commences school in 2019.  The (omitted) primary school is close enough to the mother's home to allow X to engage in extracurricular activities and maintain school friendships but also placed between the homes of her parents and so as to allow each of them to contribute to the travel.  As such, I prefer the husband's suggestion of X attending the (omitted) school.

School Holidays

76.There remains a dispute between the parties as to the time X spends with the husband during school holidays.  This, of course, will be alleviated by the week-about order which will start from 2019.  In the meantime, however, and on the assumption that the husband has limited work holidays and noting that, in any event, the week about arrangement will commence as of 1 January 2019.  I propose that X share her summer holidays in 2017/18 on a week about basis between her parents consistent with the Tasmanian school holidays which are of six weeks duration although, of course, X is not yet of school age.

Property matters

77.The Applicant wife seeks an order whereby she receives 35% of the net tangible assets and the husband receives 65%. She proposes a split from one of the husband’s superannuation entitlements of $50,000 in her favour.

78.The wife says such an adjustment recognises her direct financial contributions via a damages award and instalment compensation payments together with non-financial contributions as a home maker and parent in what is conceded as a relatively short relationship. The wife also argues that there should be an adjustment for her pursuant to s.75(2) of the Act by reason of a discrepancy in current and potential earning capacity and the orders that she seeks giving her primary care of X.

79.The wife says that she suffers some physical injuries which limit her capacity for gainful employment and that her opportunities for employment are limited by reason of her care of the pre-school age child, X.

80.The husband argues that there should be no orders altering the property interests of the parties and as put in his Counsel’s case summary “it would be unjust and inequitable for the husband to be required to sell his home in order to make a payment to the wife.”

81.The husband says that the parties have maintained their finances and assets separately with no relevant intermingling. As such the husband urges the Court to consider the parties assets and the contributions to those assets on an asset-by-asset approach.

82.The husband argues there should be no adjustment or splitting of superannuation entitlements. He says that the wife’s contribution (if any) was minimal towards his superannuation and in any event, it would be set off by the wife having the benefit of her and her children living under his roof and also benefiting from his income during the course of the relationship.

83.The husband similarly counters any argument by the wife in respect of s.75(2) factors.

The issues

84.The parties essentially agree the property pool save and except that the husband argues that two blocks of land at Property C both registered in the name of the wife should be included in the property pool. The wife says that her father, Mr M, is the beneficial owner of one of the blocks at Property C and it should therefore be excluded from the property pool.

85.As mentioned above, the husband argues that the Court should consider the property pool of the parties in respect of contributions on an asset-by-asset approach whereas the wife’s Counsel prefers the consideration to be on a global approach.

86.There is general dispute as to the weight to be afforded the relative contributions to the parties and the s.75(2) adjustments argued by the wife.

Relevant law

87.Matters of property settlement are provided for in s.79 of the Act which states at s.79(1):

(1)In property settlement proceedings, the court may make such order as it considers appropriate:

(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property…

88.Section 79(2) provides:

(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

89.Section 79(4) states:

(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and

(e)the matters referred to in subsection 75(2) so far as they are relevant; and

(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

90.The justice and equity requirements of s.79(2) feature prominently in the matter now before me on the argument of the husband where the question as to whether it is just and equitable to make any orders at all is contentious. In this respect the High Court in Stanford & Stanford[1] stated at [35]-[37]:

35.It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

36.The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules", nevertheless, three fundamental propositions must not be obscured.

37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.

[1] [2012] HCA 52

91.The plurality in Stanford[2] went on at [46] to emphasise:

…the requirements of s.79(2) and s.79(4)are not to be conflated.  In every case in which a property settlement order under s.79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

[2] Ibid

92.At [36] the plurality said:

“just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations.  It does not admit of exhaustive definition.  It is not possible to chart its metes and bounds.

93.The importance here is to understand that findings of contributions by a party pursuant to s.79(4) of the Act does not of itself give rise necessarily to a right to have the parties’ legal and equitable rights in property altered. Such would be to conflate the s.79(4) considerations with the prior question for answer at s.79(2). I am comfortable that the proper marrying of s.79(2) and s.79(4) is well explained by Thackray J in a first instance decision in Fielding and Nichol[3] where his Honour says:

The fact the “two enquiries” under s.79(2) and s.79(4) are “separate” and “not to be merged” also does not mean, as a matter of logic, that matters arising under s.79(4) can be ignored when deciding whether it is just and equitable to make any order adjusting existing interests.  The provisions of s.79(4) encompass what Finn J in Bevan & Bevan described as “the parties’ financial history (i.e. their contributions) and their present circumstances and future prospects” – and her Honour went on to hold that findings of fact about those matters will assist in determining whether it is just and equitable to make any order.

[3] [2014]FCWA 77 at [42]

94.Consequently, I am of the view that it would be to fundamentally misunderstand Stanford to categorically ignore the s.79(4) considerations when determining whether it would be just and equitable to alter parties’ property interests. The point made by their Honours in the High Court is that s.79(4) is neither the sole or necessary determinative.   

95.Prior to Stanford it was generally accepted that trial judges should follow a “four-stage process” although a Full Court post-Stanford in Bevan & Bevan[4] warned against a rigid demarcation of a step-by-step approach whilst clearly noting it’s continuing utility. It is proper therefore, that the Court must first establish the legal and equitable interests of the parties in property and as at the date of the hearing. The Court should attribute value to the property pool where such pool comprises of assets, liabilities and financial resources. For these purposes, superannuation interests are to be “treated as property”.  Should the Court then consider it just and equitable to alter the property interests of the parties, it must consider the contributions of each of them, be they financial, non-financial or indirect contributions. The Court then considers whether any further adjustment is warranted on consideration of the relevant factors under s.75(2) of the Act and then finally to “stand back” and consider whether the proposed orders are in themselves just and equitable in all of the circumstances.

[4](2013) FLC 93-545

The property pool

96.The wife is a registered proprietor of two unimproved blocks of land at Property C. They are each valued at $25,000. The wife says that her father is the beneficial owner of one block. Mr M gave evidence on affidavit affirmed 27 February 2017 and was cross examined. He says that between August and October 2014 he gave his daughter the sum of $28,510 in instalments for the purchase of Property C. He agrees with his daughter’s evidence that he had concerns as to the implications on his pension entitlement should the land be registered in his name although he now understands there would be no such impact. He says it was always the joint intention of himself and his daughter that he would be the beneficial owner of the block.

97.On the balance of probabilities, I accept the evidence of Mr M and the wife. It is not disputed that the money for the purchase of one of the blocks came directly from Mr M. He gives a plausible explanation for the title being registered in the name of his daughter. He maintained his position as the beneficial owner of the land when cross examined. I am satisfied, therefore, that given his beneficial ownership of that block of land then it should not constitute a part of the property pool between the parties.

98.The property pool is, subject to the above, then agreed between the parties. Consequently, I find the pool of property relevant to my determination to be as follows:

Assets

Husband’s property at Property S	$550,000
Wife’s land at Property C	$25,000
Husband’s boat	$20,000
Wife’s car	$3,500
Husband’s car	$2,000
Husband’s 150 (omitted) shares	$750
Husband’s 557 (omitted) Shares	$500
Wife’s caravan	$5,000
Total assets	$606,750.00

Liabilities

Mortgage –Property S	$440,000
Net tangible assets	$166,750

Superannuation

(omitted) Superannuation – husband	$117,136
(omitted) superannuation – husband	$282,918
(omitted) superannuation – husband	$7,625.52
(omitted) Super – wife	$1,547
Superannuation total	$409,226.52

Asset-by-Asset Approach or Global Approach

99.In this relationship of relatively short duration and where the property pool is limited in value, the husband urges that I adopt an asset-by-asset approach rather than the global approach which is preferred by the wife. It is clear that either approach is available and open to the Court. As the High Court observed in Norbis v Norbis:[5]

Which of the two approaches is the convenient would depend on the circumstances of the particular case. However, there is much to be said for the view in most cases that the global approach is more convenient. It follows that the Full Court is quite entitled to proscribe that approach as a guideline to promote uniformity of the approach within the Courts. In saying this we are not to be understood of denying the legitimacy of the trial judge’s ascertainment in the first instance of the financial contributions of the parties by reference to particular assets. It is difficult to conceive how the trial judge in many cases could otherwise take account of such contributions as is required by s79(4) of the Act…

Again it seems to ask that it would depend on the circumstances of the particular case, though in the majority of cases the global approach will be more convenient…

[5] (1986) FLC 91-712

100.In McMahon & McMahon[6] the Full Court favoured an asset-by-asset approach noting that factors such as the short duration of the marriage and its unhappy nature together with strict division of assets and finances and the methods of dealing with finances during the relationship are considerations which might favour an asset-by-asset approach.

[6] (1995) FLC 92-606

101.This is a relationship of short duration of not quite 5 years. The asset pool is limited in its value and dominated by the husband’s equity in the home which he owned prior to the commencement of the relationship. The wife’s major asset is a block of land at (omitted) which is traceable to a damages payment received by her during the relationship. There is no evidence of joint bank accounts or other joint purchases of significant assets. These are considerations which tend towards an asset-by-asset approach.

102.Nevertheless, there are other considerations. Firstly, there is a child of the relationship and it is clear that the wife argues contributions as primary carer of the child both during the relationship when the husband was employed on a fly-in/fly-out basis and post-separation. There is also evidence that the husband was unemployed for a period during the relationship during which time the wife says she contributed disproportionately to the household expenses although the husband claims to have sold some assets at this time. The wife says she contributed a part of her lump sum damages award to the benefit of the family including the husband.

103.On reflection I prefer to proceed by a global approach. There are contributions here of a non-financial kind that are not easily capable of measurement in dollar terms.[7] Further, in considering contributions generally I think it preferable here to take an holistic approach rather than enter into the exercise of attributing non-financial contributions to particular assets where contributions vary and it is not possible to balance “like against like” and as Coleman J observed sitting as a single appellant Judge in Steinbrenner & Steinbrenner[8]:

Given that evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures.  That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.

[7] Lovine & Connor & Anor (2012) FLC93-515 at [42]

[8] Steinbrenner & Steinbrenner [2008] famCAFC 193

104.As the Full Court in Norbis (supra) noted at p 75,168:

One of the reasons why there Honours expressed a preference for the global approach is because it is natural to assess the contribution by a spouse as a homemaker and parent, either by reference to the whole of the parties’ property or to some part of that property as distinct from individual assets.

Section 79(2) – Just and Equitable

105.The High Court in Stanford (supra) at [37] observed, ‘…The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order. It should not be assumed that the parties’ rights or interests in property are or should be different from those that now exist. Nevertheless, and whilst not conflating the contribution considerations in s.79(4) with the consideration in s.79(2), this is a matter where the parties to a marriage have separated. There are contributions to be considered financial and non-financial and also direct and non-direct. There is a child of the relationship. In all of those circumstances, it is just and equitable to determine whether it is appropriate in the discretion of the Court to alter the property interests of the parties.

Contributions

106.At the commencement of the relationship the husband had equity in the home at Property S. The mortgage liability has since increased by $40,000 to accommodate some renovations and a purchase of the boat. The equity now sits at $110,000.

107.The husband was employed or self-employed throughout the relationship save and accept for a period of approximately 6 months. His unchallenged evidence is that he sold some assets to contribute to the family finances during this period. He has otherwise had a superior income to the wife. The wife and her children had the use and benefit of the husband’s home for the duration of the relationship. The husband has paid child support and had the care of X for each weekend since separation.

108.The wife entered the relationship with limited assets being a motor vehicle and some furniture. She received workers compensation payments for the majority of the relationship in the sum of approximately $350 weekly. She then received a $42,000 damages payment in June 2014.  $25,000 of these monies is now evidenced in the block of land at Property C. She has made some gifts of approximately $2,000 to each of her children and the remainder is contributed generally to the family including for a family holiday cruise. There is no evidence of any substantial savings for the wife and I am satisfied that she contributed the greater majority of her payment towards the purchase of the land and to the benefit of the family.

109.The wife has had the primary care of X since separation although she has, of course, had the respite of the husband caring for X on each weekend together with child support. I am satisfied, that the husband made a far superior initial contribution to this short marriage. He also made a greater financial contribution during the relationship but this is set off by the wife’s contributions as home maker and parent of X during that period and made more onerous by the husband working away from the home for considerable periods. I also take into account the post separation contributions to X’s care. On the basis of contributions I would adjust the pool of tangible assets as to 75% to the husband and 25% to the wife.

Section 75(2) considerations

110.The husband is in employment and discloses a gross income from all sources of $1,420 per week or approximately $74,000 per annum. The wife is unemployed and derives a gross income of approximately $1,070.00 per week or approximately $55,500 per annum from a combination of Centrelink benefits and child support for X and A.  That income will likely reduce because of the orders that I have will make in respect of X’s shared care. Further, the wife claims an incapacity or difficulty in obtaining employment due to shoulder and hand injuries. She, however, adduced no medical evidence as to total or partial incapacity and after intrusive cross examination of her as to her capacity to pursue her interest in (omitted), I am not satisfied that she has a physical incapacity for employment. The orders that I have made in respect of X’s care will allow, in my view, the wife seek some remunerative employment albeit only within the limitations of her skills and experience. Nevertheless, there remains a current and likely future discrepancy in the earning capacity of the husband and the wife.

111.My orders in respect of X will obligate the parties equally in respect of their commitment to X at least from the beginning of 2019 although the wife does not have the same current ability of the husband to combine full time work with week-about care of a child.

112.There is a consideration pursuant to s.75(2)(o) of the Act in respect of the husband’s contributions towards the support the wife’s older children. His evidence in this regard was not, or not successfully, challenged. I accept that the wife had an income from her workers compensation for a period of the relationship but I also accept the evidence of the husband as to his contributions generally towards the family unit inclusive of two of the wife’s children and also to his specific evidence as, for example, contributions to A’s school books and school fees[9]. Taking all of these considerations into account and on balance, I am of the view that a further adjustment to the wife of 5% of the property pool is just and equitable.

[9] Robb v Robb (1995) FLC 92-555

Conclusion – property orders

113.Taking into account the contributions of the parties and also the relevant s.75(2) factors, I am satisfied that the tangible assets of the parties should be divided as to 70% to the husband and 30% to the wife. The tangible property pool, leaving aside superannuation, has a value of $166,750 net. The wife will receive 30% or value of $50,025. She will retain her land at Property C ($25,000), her motor vehicle ($3,500) and caravan ($5,000) totalling $33,500 necessitating a cash settlement on her from the husband of $16,525.

Superannuation

114.The combined superannuation entitlements for the parties are $409,226.52. Of this amount the wife’s superannuation entitlement sits at $1,547. She argues for a split of $50,000 from one of the husband’s entitlements. Counsel in his final submissions calculated that such a split would approximate one half of the accrued value of the husband’s entitlements from the date of cohabitation to the present.

115.Counsel for the husband argues for no splitting order in favour of the wife and that each party keep his or her superannuation entitlements. Counsel urges the Court to note that the husband’s (omitted) superannuation was all accrued prior to the commencement of the relationship with the wife and that his (omitted) Superannuation superannuation includes significant roll overs from pre-existing funds noting its value as of 30 June 2015 at approximately $90,000 and current value of $117,136.

116.Further, Counsel for the husband argues that any ‘entitlement’ of the wife to a splitting order from the husband’s superannuation should be ‘set off’ by reason of the wife having the benefit of the husband’s income during the course of the relationship and a ‘roof over hers and her children’s heads’.

117.I am not persuaded by the husband’s Counsel’s argument. It is clear that there are substantial discrepancies in the parties’ current superannuation entitlements. The relationship endured for some four years during which and since which the husband has accrued superannuation whereas the wife has not been working. The considerations from s.79(4) as to indirect, homemaker and parent contributions, both during and post separation, are as relevant to the accruing of superannuation entitlements as to tangible assets. However, it is the husband who has contributed the injections into the fund in the three years since separation.

118.On consideration, therefore, I propose to make a splitting order in favour of the wife of $20,000 which acknowledges the contributions made both during and post the relationship together with the wife’s indirect contributions.  Such an order also gives weight to the husband’s pre-cohabitation contributions to his superannuation.

Spousal maintenance

119.The wife seeks spousal maintenance to be paid to her by the husband in the sum of $175 per week. The terms of her application would make such an order ongoing. However, the inference from her Counsel’s final submissions is that the wife asks for such an order at least until such time as X is of school age.

120.The husband argues that there should be no order for spousal maintenance.

121.Section 72(1) of the Act provides:

(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c)for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

122.Section 75(3) of the Act states:

(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

123.It is generally accepted, therefore, that there is an onus on a party seeking spousal maintenance to prove, on the balance of probabilities, the threshold issues of firstly, whether they have a need for spousal maintenance and, secondly, if there is such a need then, that the applicant is not capable of attending to those needs. It is then, and only then, upon crossing that evidentiary threshold, that consideration is given to the capacity of the other party to contribute to the applicant’s needs.

124.The wife here is currently in receipt of Centrelink benefits of various status. She receives a family assistance pension of $171.94 per week together with pension carers allowance(s) of $315.25 and $162.35 per week. She receives total child support for X and A of $421.00 per week. Her income into the household from all sources is $1,070.54. Nevertheless, Counsel agree that the s.75(3) considerations are relevant at least, in part. Further, I take the common sense view that the child support is payable directly for support of the children.

125.The wife deposes that her personal expenditure and, hence, her needs are $1,009 per week. She attributes a sum of $225 to her personal needs at Part N of her sworn financial statement. In addition, there are necessary expenses of rent ($270 per week), rates, unit levies ($10 per week), and motor vehicle registration ($9 per week).

126.The wife in her affidavit at paragraph [26] says:

26.In summary, my income is completely dependent on that which I receive from Government benefits and child support. I am the full time carer of my infant daughter and I have no capacity for re-employment as a result of my shoulder injury. I am unable to support myself with my current income. I am therefore seeking spousal maintenance Orders.

127.In her affidavit at [23] the wife deposes:

23.As a result of the shoulder injury I suffered in 2010 I cannot lift my arm higher than my shoulder. I cannot bear any weight with that arm, nor can I lift anything. The injured arm is my right arm, which is my dominant side. My shoulder injury also means that either sitting or standing for a prolonged period of time becomes painful.

128.I am satisfied given the s.75(3) limitations that the applicant’s expenditure exceeds her permissible income by at least the $175 per week she seeks. Nevertheless, such a finding does not of itself, in my view, satisfy the threshold requirements of s.72(1) of the Act. It is true I have made orders that would leave X’s primary care with the mother until at least the start of 2019. I am mindful, of course, of the authorities which recognise (as does the Act) that the need to provide care and control of the child may be a priority over gaining remunerative employment as a general proposition. I also accept the time lapsed since her last gainful employment and the nature of her employment history.

129.Further, the wife gives evidence herself as to receiving workers compensation damages payment resulting from a shoulder injury in her previous employment. She says that she continues to have shoulder and finger injuries which she says precludes her from obtaining any remunerative employment. On consideration, however, I find this evidence to be unsatisfactory. I accept the wife has endured injuries. I do not have, however, evidence in proper probative form as to such injuries impeding the wife from obtaining any gainful employment whatsoever. Significantly, it was exposed in cross examination that she has not made any application for any employment in any field whether that be permanent, casual or part-time employment since separation from the husband. She also conceded in cross examination that she has not prepared a fresh resume since she was 18 years of age and she is now 41 years old. The wife says that she last ‘updated’ her resume when she applied for the job during which she suffered her injuries. Without detailed evidence, I can assume that this was sometime prior to 2010. In any event, she has not updated her resume since separation. Further, the wife conceded in cross examination that she is a talented (occupation omitted) who has at times accepted commissions for her work with not inconsiderable financial outlay by her for materials. The force of this evidence is twofold. Firstly, her evidence that she at times spends two or more days on a particular (omitted) work argues against a general incapacity for employment of all types. Secondly, that disclosure suggests a capacity for some employment albeit part-time, casual or self-employment in this field in order to contribute herself to her needs or, at the very least, the capacity to attempt some self-sufficiency.

130.On reflection, and without any evidence or any attempt by the wife to obtain any employment whether that be on weekends when X is with her father or otherwise, I cannot be satisfied that she does indeed have no capacity for gainful employment. By way of comment, I do not consider the authorities in respect of the obligations to care for a child to be a broad unequivocal statement that a person necessarily has no ‘capacity for gainful employment’ by reason of the care of a young child.  Rather, it is proper to consider each matter on its facts and to take into account the nature and regime of the care of a child including whether that time is shared where in this matter the husband has historically cared for X each weekend and where my interim orders will have him caring for her on five days and nights per fortnight.

131.Further, there is evidence before that the mother has readily delegated her care of X to her parents in order to pursue leisure pursuits or to at least free her from her child care responsibilities. Indeed, the evidence of the wife’s father is that they have readily accepted the responsibility for the care of B and X on a level more onerous than that usually taken on by grandparents. There is also evidence that the husband has sought more time with X than that has voluntarily been given by the wife. I infer, therefore, that he would readily assist the wife should she be able to obtain some part time or casual employment.

132.In summary, therefore, I am not satisfied that the wife in this matter has discharged her onus of proof in respect of her inability to contribute to her own needs.  She has not adduced evidence to persuade me that she is disabled from all employment.  I am not satisfied that she has properly attempted to “mitigate her damages” in respect of attempts to obtain gainful employment.

133.If, however, I am incorrect on this conclusion, then I am also not satisfied that the husband has the capacity to contribute to the wife’s financial needs in the amount sought or at all. His sworn financial statement discloses a total weekly income of $1,420 and total weekly expenditure of $2,123. He was cross examined in respect of that document and conceded that his payment of $175 per week to superannuation is in fact the employer contribution. He was not successfully challenged in respect of any of his other claimed expenditures. In any event, a perusal of that document does not readily disclose any unusually high expenditure or unnecessary expenditures.  I generally accept his evidence and find that it was not successfully challenged save and accept for the sum of $175.00. This being the case, the husband’s income still exceeds his expenditure.

134.Taking all of these matters into account the wife’s application for spousal maintenance is dismissed.

I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  25 May 2017