Grant and WILLIAMS
[2010] FamCA 1074
•26 November 2010
FAMILY COURT OF AUSTRALIA
| GRANT & WILLIAMS | [2010] FamCA 1074 |
| FAMILY LAW – CHILDREN – with whom a child lives – relocation – whether the husband should be permitted to relocate with the child – where the child has been in a shared care arrangement since shortly after separation – best interests – where little weight was attached to the family consultant’s recommendation due to a failure to take into account all relevant issues – consideration of s 60CC factors – where it is in the child’s best interests for the parties to have equal shared parental responsibility – whether spending equal time with each parent is in the child’s best interests and reasonably practicable – relocation not permitted – child to spend equal time with each parent – child to live with the wife and spend time with the husband in the event the husband relocates FAMILY LAW – PROPERTY – assets and liabilities to be included in the pool – whether certain debts should be treated as joint liabilities – where the wife had incurred significant credit card debts – whether there should be further notional add backs on account of amounts expended by the husband – where there had been a lack of full and frank disclosure by the wife and a failure to comply with orders FAMILY LAW – PROPERTY SETTLEMENT – alteration of property interests – contributions – where the contributions of the wife outweighed the contributions of the husband – where an adjustment of 10% in favour of the husband on account of s 75(2) factors is appropriate – net asset pool to be divided 60%/40% in favour of the wife |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 75(2) & 79 |
| Coghlan and Coghlan (2005) FLC 93-220 Hayne and Hayne (1977) FLC 90-265 |
| APPLICANT: | Mr Grant |
| RESPONDENT: | Ms Williams |
| FILE NUMBER: | DNC | 348 | of | 2008 |
| DATE DELIVERED: | 26 November 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 3 February 2010 15 – 18 March 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Brasch |
| SOLICITOR FOR THE APPLICANT: | Ward Keller Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hodgson |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
Parenting Orders
That the parties have equal shared parental responsibility for the child H born on … October 2004.
That the said child not be permitted to relocate to Darwin.
That in the event and for so long as the husband remains residing full time in E (south of Kadadu):
(a)during each school term the child live with the parties on a week and week about basis with handover occurring immediately prior to the commencement of school on each Tuesday;
(b)the said child live with each party for one half of each school holiday period, as agreed between the parties, and in default of agreement with the husband for the first half in even numbered years and the second odd numbered years, and with the wife for the first half in odd numbered years and for the second half in even numbered years.
That in the event and for so long as the husband resides full time in Darwin the child live with the wife and spend time with the husband as follows:
(a)during each school term on each alternate weekend from the conclusion of school on the Friday or as agreed between the parties, until 7:00pm on the Sunday with handovers to take place as agreed between the parties and in default of agreement at a point midway between E and Darwin, such point to be as agreed between the parties;
(b)for one half of each school holiday period as agreed between the parties, and in default of agreement for the first half in even numbered years and for the second half in odd numbered years, with handovers to take place as agreed between the parties and in default of agreement at a point midway between E and Darwin, such point to be as agreed between the parties;
(c)at such other times as may be agreed between the parties when the husband is in E or when the child is in Darwin.
That each party facilitate the said child communicating with the other party by telephone and by other electronic means on a regular and frequent basis.
That in any event, the said child spend such time as may be agreed between the parties with the wife on Mother’s Day and with the husband on Father’s Day.
Property Settlement Orders
That within ninety [90] days of the date hereof the husband pay to the wife the sum of TWO HUNDRED AND THIRTY THREE THOUSAND THREE HUNDRED AND THIRTY ONE DOLLARS [$233,331.00].
That forthwith the parties arrange for the sale of all items of plant and equipment from the wife’s businesses, including two bicycles, comprised in the list of plant and equipment utilised by the wife’s accountant Z Accountants of New South Wales to enable the accountant to prepare the depreciation schedule attached to the financial statements for B Williams trading as BH Business for the period 1 July 2008 to 31 December 2008, upon the following conditions:
(a)the terms of sale shall be as agreed between the parties, but in default of agreement as determined by the husband;
(b)the agent/auctioneer to conduct the sale shall be appointed by agreement between the parties but in default of agreement as nominated by the husband;
(c)each party has the ability to bid at an auction for any item of plant and equipment, save and except that the wife is not permitted to bid for either of the two bicycles.
That the net proceeds of sale of the items of plant and equipment after deducting all selling costs be divided between the parties 60% to the wife and 40% to the husband.
That in relation to the husband’s ANZ frequent flyer visa gold credit card number … the wife forthwith pay and discharge all but FIFTEEN THOUSAND FOUR HUNDRED AND TEN DOLLARS [$15,410.00] of the outstanding balance (including interest) and the husband assume sole responsibility for the repayment of the said amount of FIFTEEN THOUSAND FOUR HUNDRED AND TEN DOLLARS [$15,410.00], and indemnify the wife and keep her indemnified against payment of the same.
That in the event that the wife fails to comply with paragraph (10) hereof the amount required to be paid by the wife (together with interest thereon calculated in accordance with the prevailing interest rate applied to the said credit card) be deducted from the amount required to be paid by the husband to the wife pursuant to paragraph (7) hereof, and the husband thereafter be responsible for paying the outstanding balance on this credit card.
That the wife pay and discharge as and when they fall due all amounts required to be paid pursuant to any mortgage registered on the title to the property at G Street, E, and indemnify the husband and keep him indemnified against all such payments.
That apart from the husband’s said ANZ frequent flyer visa gold credit card, the husband be responsible for EIGHTEEN THOUSAND FIVE HUNDRED DOLLARS [$18,500.00] of the total amount outstanding on all other credit cards of the parties as at the date of separation, and the wife likewise be responsible for EIGHTEEN THOUSAND FIVE HUNDRED DOLLARS [$18,500.00] of the said outstanding total amount.
That the husband forthwith transfer or assign to the wife all of his interest in the jointly owned AMP shares.
That the wife retain as her sole property absolutely free of any claim, right, interest, demand, or entitlement of the husband the following:
(a)her property at G Street, E;
(b)her Telstra shares;
(c)the jointly owned Telstra shares referred to in paragraph (14) above;
(d)her motor vehicle;
(e)her interest in the business D Business;
(f)the dividends received by the wife from her Telstra shares;
(g)her superannuation entitlements in Uni Super and Q Super;
(h)and all other assets in her possession or control.
That the husband retain as his sole property absolutely free of any claim, right, interest, demand, or entitlement of the wife the following;
(a)subject to paragraph (18) hereof, his property at M;
(b)his AMP shares;
(c)his motor vehicle;
(d)his sporting memorabilia;
(e)his motor bike;
(f)the proceeds of sale of his AMP shares;
(g)the proceeds of a draw down by him on the mortgage secured over the M property in August 2007;
(h)his superannuation entitlements in NTGPASS and NTSSS;
(i)and all other assets in his possession or control.
That the husband pay and discharge as and when they fall due all amounts required to be paid pursuant to any mortgage registered on the title to the property at M, and indemnify the wife and keep her indemnified against all such payments.
That in the event of the husband failing to comply with paragraph (7) hereof the said property at M be sold upon such terms and conditions as the parties may agree, and from the net proceeds of sale the wife receive such sum as shall be outstanding pursuant to paragraph (7) hereof together with interest thereon calculated at the rate fixed by the Family Law Rules 2004, and the husband receive the balance.
That each party have liberty to apply for consequential orders in relation to property settlement.
That all applications be dismissed and removed from the active pending cases list.
That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.
IT IS NOTED that publication of this judgment under the pseudonym Grant & Williams is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT DARWIN |
FILE NUMBER: DNC 348 of 2008
| MR GRANT |
Applicant
And
| MS WILLIAMS |
Respondent
REASONS FOR JUDGMENT
Introduction
I have before me for determination competing applications for parenting orders and property settlement. The parenting orders relate to the parties’ child H born in October 2004 and now aged 6 years.
The husband filed an Application seeking final orders on 1 December 2008. At trial he sought the following orders:
1. That the father and mother have equal shared parental responsibility for the child: [H] (born […] October 2004) (“[the child]”).
2. That [the child] live with his father.
3. That the father be permitted to relocate with [the child] to Darwin.
4. That [the child] spend time with his mother every second weekend and for half of school holidays.
5. That the wife do all things necessry [sic] to discharge the ANZ credit card in the husband’s name.
6. That each party otherwise retain any property registered in their name or in their possession or control.
On 30 January 2009 the wife filed an Amended Response to an Initiating Application. At trial she sought the following orders:
Parenting Orders
1. That the Mother and Father have equal shared parental responsibility for the child, [H] (“[the child]”) born […] October 2004.
2. That in the event the Father does not relocate to Darwin that [the child] live with the Mother in alternate weeks from Tuesday after work until Tuesday before work and with the Father in alternate weeks from Tuesday after work until Tuesday before work.
3. That in the event the Father does not relocate to Darwin, that [the child] spend one half of each of his school holiday periods with the Mother and Father, such half as agreed between the parties or in the event of no agreement, the first half of the even numbered years commencing 2010 with the Father and the second half of odd numbered years commencing in 2011 with the Father.
4. That in the event the Father relocates to Darwin, that [the child] live with the Mother and that the Father spend time with him as follows:-
(i)On alternate weekends from after school on Friday until 7pm on Sunday.
(ii)For one (1) week in the school holidays at the conclusion of Term 1.
(iii)For four (4) weeks in the school holidays at the conclusion of Term 2.
(iv)For one (1) week in the school holidays at the conclusion of Term 3.
(v)For one half of Christmas school holidays, as agreed between the parties and in the event of no agreement, for the first half of even numbered years commencing 2010 and the second half of odd numbered years commencing 2011.
5. That in the event the Father relocates interstate, that [the child] live with the Mother and that the Father spend time with him as follows:-
(i)For one (1) week in the school holidays at the conclusion of Term 1.
(ii)For four (4) weeks in the school holidays at the conclusion of Term 2.
(iii)For one (1) week in the school holidays at the conclusion of Term 3.
(iv)For one half of Christmas school holidays, as agreed between the parties and in the event of no agreement, for the first half of even numbered years commencing 2010 and the second half of odd numbered years commencing 2011.
Property Orders
1. That the Father do all acts and things and sign and execute all documents necessary to cause the property situated at [M] to be sold and that after payment of costs of the same and discharge of the mortgage, the net proceeds of sale be divided in proportions as 90% to the Mother and 10% to the Father.
2. That the Father do all acts and things and sign and execute all documents necessary to transfer to the Mother all of his right, title and interest in the jointly owned Telstra shares.
3. That subject to these orders, the Mother do all acts and things necessary to assign to the Father any interest which she may have in any property registered in his name, in his possession or under his control, including his entitlement to superannuation.
4. That the Father do all acts and things necessary to assign to the Mother any interest which he may have in any property registered in her name, in her possession or under her control, including her entitlement to superannuation.
5. That the Father indemnify and keep indemnified the Mother in relation to any credit card liability in respect of any credit cards in the Father’s sole name, including those credit cards in respect of which the Mother held a supplementary card of which she had the use.
6. That the Father pay the Mother’s costs of and incidental to these proceedings.
Factual background
The husband was born in 1965 and is now aged 45 years.
The wife was born in 1970 and is now aged 40 years.
In June 1995 the wife purchased a business in E known as “BT Business” from her employer. The business subsequently changed its name to “BH Business”.
The parties commenced their relationship in E, south of Kakadu, in 1997. They commenced cohabitation in late 1997 or early 1998, when the husband moved into the property the wife was renting in E. At this time the wife was working in her business and the husband was employed as a teacher.
In 1997 the wife purchased a 50% interest a business, P Business.
The parties married in Perth in 1999. Following their marriage the parties continued to reside in the rental property in E.
In March 2001 the husband relocated to Darwin for his employment. The wife remained in E, moving into an alternative rental property, and commuting between E and Darwin regularly.
On 16 May 2001 the parties purchased a property at M in Darwin. The property was purchased in the name of the husband for $195,000. The wife contributed $25,000 towards the deposit on the property and a mortgage was taken out for the balance of the purchase price and the associated costs. The husband commenced residing in the property. The wife remained living and working in E and commuting on weekends.
In July 2004 the wife’s mother died.
In October 2004 the parties’ child H was born and is now aged 6 years.
The wife returned to full time work in January 2005. According to the wife, the child lived with her in E and she continued to commute to Darwin on weekends.
From June to December 2005 the child was enrolled full time at a Child Care Centre in Darwin. The wife remained working in E at this time and she paid all of the childcare fees. She also continued to commute to and from Darwin.
The parties separated briefly in October 2005, but subsequently reconciled.
In November 2005 the husband refinanced the mortgage over the M property borrowing a further $30,000 approximately. This money was used to fund the cost of renovations to that property.
The parties finally separated in February 2006. The husband remained living in Darwin following separation.
The husband says that between February and July 2006 the child alternately spent two weeks with him in Darwin and two weeks with the wife in E. According to the wife, the child lived with her in E and spent time with the husband “from time to time”.
In April 2006 the husband commenced proceedings for parenting orders in the Federal Magistrates Court. The wife filed a Response. Both parties subsequently filed Notices of Discontinuance and the proceedings were formally dismissed by the Federal Magistrates Court on 23 May 2006.
In June 2006 the husband refinanced the mortgage over the M property borrowing a further $10,000, and utilising those funds to purchase a motor vehicle.
In July 2006 the husband relocated to E. An arrangement was thereafter reached between the parties whereby they were to share the care of the child H on a week about basis. The M property was subsequently rented out, with the husband receiving the rental income.
On 20 July 2006 the wife purchased a property at G Street, E, for $235,000 with the assistance of her father. The wife says she made a single payment to her father of $16,237.50 and made repayments of $500 per week until her father’s death in May 2008. The husband asserts the wife used a credit card in his name to assist with the purchase.
In approximately March 2007 the wife commenced a relationship with her current partner Mr W.
In July 2007 the wife formed a new company with Mr DA, D Business Pty Ltd, investing $55,000.
In August 2007 the husband again refinanced the mortgage over the M property.
In September 2007 the husband commenced a relationship with his current partner Ms G.
The husband alleges that in November 2007 the wife stole his diary in which he had recorded the times he had spent with the child since 2006. The husband reported the alleged theft to the police.
In May 2008 the wife’s father died. The wife travelled to Sydney with the child for the funeral. According to the husband, when the wife did not return with the child to E or advise him as to when she would do so, he travelled to Sydney in July to collect the child before travelling to Townsville to attend a family wedding. The wife says that the parties had agreed that the husband would travel to collect the child from Sydney.
The parties’ divorce became final on 23 October 2008.
In October 2008 the husband says he became aware that the wife had been applying online for finance in his name. The husband says he reported the wife’s actions to the police and the financial institutions involved.
In November 2008 probate of the wife’s father’s will was granted in the Supreme Court of New South Wales, of which the wife was a named beneficiary. Pursuant to her father’s will, the wife was to receive her father’s investment in the C Trust (at clause 3(e)) and an equal share of the residue of her father’s Estate, along with her siblings. However, the will also provided:
6.IT IS MY WISH that my executors have the power to deduct from my said gift to [THE WIFE] in Clause 3(e) the regular loan repayment of $500.00 per week in relation to the mortgage to the Commonwealth Bank of Australia for my property situated at […] NSW which was a loan to enable my daughter [THE WIFE] to purchase [G Street, E].
In November 2008 the child was enrolled at the Early Learning Centre at S School. According to the husband the child was enrolled at the centre unilaterally by the wife without his consent. In the enrolment documents the wife recorded that the husband was not able to drop off or collect the child from school until a parenting agreement had been reached. On 11 November 2008 the school refused to allow the husband to collect the child from school and the police were called to attend the incident.
On 1 December 2008 the husband commenced proceedings in the Federal Magistrates Court seeking final parenting orders and orders for property settlement.
In December 2008 probate of the wife’s mother’s will was granted in the Supreme Court of New South Wales, of which the wife was a named beneficiary. In a memorandum to the will, however, the Trustees of the Estate were directed to withhold any beneficial entitlement from the wife until she had returned specified items of jewellery. If the items were not returned within 28 days of her mother’s death, the wife forfeited her whole entitlement to any benefit from the Estate and the wife’s interest was to be distributed amongst the remaining beneficiaries. At the time of trial neither of the wife’s parents’ wills had been administered and the wife had made a family provision claim in the Supreme Court of New South Wales against the Estate of her late father.
On 31 December 2008 the wife’s business, registered as BH Business and trading as BH Business, ceased trading. The wife subsequently obtained full time employment with another company.
On 16 January 2009 the wife filed a Response to an Initiating Application.
On 20 January 2009 Federal Magistrate Terry made interim orders by consent, inter alia, that the parties have equal shared parental responsibility for the child, that the child spend equal time with each parent during the school term on a week about basis and equal time with each parent during school holidays, other than the Easter holidays. Orders were also made with respect to each parent’s time with the child on his birthday and during the Easter period, and for the child to have regular telephone communication with each parent whilst living with the other parent. Interim orders were also made by consent restraining the husband from selling, disposing of or encumbering the property at M and restraining the wife from selling, disposing of or encumbering the property at G Street, E. The husband was restrained from using the rental income received from the M property save to pay rates, repairs and other expenses in relation to the property.
On 30 January 2009 the wife filed an Amended Response to an Initiating Application.
On 30 January 2009 Federal Magistrate Terry made interim orders by consent permitting the wife to travel with the child overseas from 1 to 22 March 2009. Orders were also made providing for the husband to spend make up time with the child upon his return to Australia and for the husband to be able to communicate with the child by telephone whilst he was overseas.
On 8 May 2009 the husband issued a trespass notice to the wife requiring that she not approach his residence.
On 2 June 2009 Federal Magistrate Terry ordered the preparation of a Family Assessment Report.
On 3 September 2009 a Family Assessment Report prepared by Mr V, Family Consultant, was released, in which Mr V made the following recommendations:
74.I recommend to the court that [the child] relocate to Darwin with his father in time for commencement of the school year in 2010.
75.I recommend that [the child] would spend alternate weekends and at least half of the school holiday periods with his mother.
76.If the mother chooses to relocate to Darwin as well, then the court might give consideration to establishment of a week about arrangement for [the child].
77.The current parenting arrangement for [the child] would continue until relocation occurs late this year or early next year.
78.I recommend both parents be restrained from talking negatively or in a derogatory manner to [the child] about each other.
On 10 September 2009 the final hearing, which was listed on 17 and 18 September 2009, was vacated and the matter was transferred to the Family Court.
On 1 December 2009 I made orders with respect to the parties providing further discovery.
In December 2009 the wife obtained a mortgage over the G Street property in the amount of $256,000. The wife utilised the funds to pay out the existing mortgage and to repay the outstanding balances on her American Express and Westpac credit cards. Following the repayment of these outstanding balances, the wife had available to her funds of $165,320.15.
On 3 February 2010 a first day of a less adversarial trial pursuant to Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) was held before me. I confirmed with the parties on that occasion that they both consented to the less adversarial process also applying to the property settlement proceedings. Both parties were sworn in and spoke to me directly, clarifying the issues in dispute. Mr V, Family Consultant, was also sworn in and he gave evidence.
The conclusion of the trial was heard from 15 to 18 March 2010, when judgment was reserved.
The current circumstances of the parties
The wife
The wife resides in the G Street property. That property is a three bedroom home and the child has his own bedroom there.
The wife maintains a relationship with Mr W who resides in his own home in E.
The child continues to spend time week about with each parent, with handovers occurring each Tuesday at the child’s school.
The wife is employed in personal services and at the time of trial she was employed full time at a business in E. Her hours of work are generally 9:00am to 2:00pm Monday to Friday. Mr W is a public servant.
In 2010 the child H commenced school at S School, a Catholic school in E. The parties pay the child’s school fees in equal shares.
According to the wife’s financial statement filed on 1 March 2010 her average weekly income is $709.24 and her total personal expenditure is $823.57 per week.
The husband
The husband lives in a rented two bedroom unit in E. The child has his own bedroom there.
The husband is a school teacher. At the time of trial he was employed full time in E.
The husband has been in a relationship with Ms G for three years. They do not live together but regularly spend time at each other’s home. Ms G has four children of her own, three of whom live with her (aged 18, 14 and 11 years at the time of trial), with her other child (aged 16 years) living with his father in Melbourne. Ms G is a public servant.
The husband pays child support to the wife. The husband says he pays $312.25 per month, as assessed by the Child Support Agency.
According to the husband’s financial statement filed on 10 March 2010 the husband’s average weekly income is $2300 [amended to $2045] and his expenses are $1593 per week [amended to $1613].
The issues in dispute
Parenting
The principal issues for determination are with whom the child should live and in that context whether the husband should be permitted to relocate with the child to Darwin.
The wife indicated that she probably would not move to Darwin if the child lived there with the husband. In turn the husband said that he would not move to Darwin if the child was not permitted to relocate there. It was common ground between the parties that if they were both living in the same place then the current shared care arrangement would continue. Also, if they were living in separate places then certainly the husband’s position, and probably the wife’s, was that the child could only spend time with the non-resident parent on alternate weekends and for half school holidays.
Financial
In relation to the asset pool there were a number of issues in dispute between the parties, namely as follows:
62.1The value of the plant and equipment of the wife’s previous business.
62.2Whether the wife’s property at G Street, E, should be included in the asset pool.
62.3What liabilities should be included in the asset pool.
62.4The wife’s use of the husband’s ANZ credit card before and after separation.
62.5The wife’s use of other credit cards both before and after separation.
62.6The wife initially claimed that the amounts obtained by refinancing the mortgage over the M property should be notionally added back to the asset pool as well as the rent received by the husband from the M property and the paid legal costs.
62.7The wife’s failure to provide full and frank disclosure including as to the funds obtained from the mortgage taken out over her property after separation.
62.8The cost of the renovations to the M property and who paid for them.
62.9The wife’s ultimate entitlement from the Estates of her late parents.
The husband alleged that the wife had fraudulently applied for finance on line in his name. However, because he had reported this to the police and to the banks concerned, and there was apparently an investigation underway, this issue was not pursued, although there was some oral evidence adduced in examination in chief and cross examination.
The husband alleged that the wife had debited his credit card to assist in the purchase of the property at G Street. The evidence revealed that the wife did debit amounts at or about the time of the purchase but these amounts were then repaid by her from income from her business.
I observe that both parties submit that their respective superannuation entitlements should be included in the one asset pool with the non-superannuation assets.
In relation to the respective contributions of the parties, as at separation the wife says that they should be assessed at 55%/45% in her favour because of her greater initial and subsequent contributions, and the husband says that they should be assessed as being equal.
The wife’s counsel submits that an adjustment should be made in the wife’s favour of 15% to 20% to take account of the post-separation contributions if the G Street property is included in the asset pool. The husband says that if the G Street property is included in the asset pool, then there should be an adjustment of 10% in the wife’s favour because of the husband’s contributions to his superannuation entitlements.
I note that one issue that occupied a significant amount of time during the hearing was what renovations were undertaken to the property at M in Darwin, and who paid for them. The wife had failed to provide discovery in relation to her claims in that regard until the third day of the hearing.
With the relevant s 75(2) factors, there was some confusion during final submissions by the wife’s counsel, and this was supposed to be clarified in a further schedule from him, but that did not eventuate. In any event it seems that his submission was that if there is no relocation and the husband stays in E, and if the G Street property is included in the asset pool then there should be no further adjustment. However, if the G Street property is not included then there should be an adjustment of 5% in the wife’s favour, and if the husband moves to Darwin without the child then there should be a 10% adjustment in the wife’s favour.
The husband submits that there should be no adjustment as a result of any s 75(2) factor, but if the child is able to relocate to Darwin with him then there should be an adjustment of 10% in his favour.
The principles to be applied to the matters before the Court
Parenting
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth). The objects of those provisions of the Act relating to children are:
(a)to ensure 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 children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the 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; 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. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, the Court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of s 60CC, in determining what is in the best interests of the child, the Court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))
Additional considerations
(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;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))
The Court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the Court. (Section 61C)
Under the provisions of s 61DA(1) when making a parenting order the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))
If the Court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the Court does not make an order for the child to spend equal time with each of the parents the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))
Property Settlement
The provisions of s 79 of the Family Law Act define the Court’s power and obligations in determining applications for property settlement. The Court has a discretion to make orders altering the interests of parties in property, provided the Court is satisfied that such orders are appropriate, just and equitable.
The Court is obliged by the provisions of s 79(4) of the Act to take into account the following matters:
82.1The financial and non-financial contributions 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 (sub-paragraph (a) and (b));
82.2The contribution made by a party to the marriage to the welfare of the family, including any contribution made in the capacity of homemaker or parent (sub-paragraph (c));
82.3The effect of any proposed order upon the earning capacity of either party to the marriage (sub-paragraph (d));
82.4The matters referred to in s 75(2) so far as they are relevant (sub-paragraph (e));
82.5Any other order made under the Act affecting a party to a marriage or a child of the marriage (sub-paragraph (f));
82.6Any child support payable (sub-paragraph (g)).
Accordingly, in assessing the entitlement of each of the parties for property settlement, there is both a retrospective element relating to the contributions of each of the parties and a prospective element relating to matters referred to in s 75(2).
According to guidelines established through a series of leading decisions, the Court should determine the following matters on the evidence, that is:
84.1Firstly, the Court must determine the assets, liabilities and financial resources of the parties to the marriage.
84.2Secondly, the Court must consider all relevant contributions of each of the parties, and, where possible, the Court should assign an entitlement of each of the parties arising as a result of those contributions.
84.3Thirdly, the Court should then consider the prospective components of the claims of each of the parties arising as a result of the provisions of s 75(2). The Court should then identify what alteration, if any, should be made to the entitlement of each of the parties earlier assessed on account of contributions having regard to the relevant s 75(2) factors.
84.4Fourthly, the Court takes a step back and considers whether the proposed orders are just and equitable.
The evidence
The husband was represented by Ms Brasch of counsel. The husband relied on his affidavit filed on 9 March 2010, his financial questionnaire filed on 26 November 2009 and his parenting questionnaire filed on 5 January 2010. The husband also relied on his financial statement filed on 10 March 2010. He gave evidence and was cross examined.
In addition, the husband relied on affidavits of his partner, Ms G, and Ms ON, the Assistant Principal of the school where he teaches, both filed on 9 March 2010. They both gave evidence and were cross examined.
The wife was represented by Mr Hodgson of counsel. She relied on her affidavit filed on 1 March 2010, her parenting questionnaire filed on 18 December 2009 and her financial questionnaire filed on 30 November 2009. The wife also relied on her financial statement filed on 1 March 2010. She gave evidence and was cross examined.
The wife also relied on the affidavits of her employer Ms HT, and her partner Mr W, both filed on 10 September 2009. Neither of these witnesses were required for cross examination.
Also before me was the family report prepared by Mr V in September 2009. He was called by the Court as a witness to enable both counsel to cross examine him.
The husband was a poor witness. Although I find that he mostly did his best to assist the Court, his recollection of detail was almost non-existent, his standard response to difficult questions was that he did not know or he did not know how to answer the question, he was evasive about his litigation funding and about two expensive bicycles that were shown as part of the plant and equipment of the wife’s former business, and he was reluctant to make obvious concessions. I also note that there were a number of errors in his affidavit, some minor, but a number where he made general statements that were simply not correct. For example, he alleged that “the wife did not have any assets of substantial value” at the commencement of the relationship, when it was clear that she did have significant business interests. Further he alleged that all of the ANZ credit card statements were sent to the wife’s post office box when in fact only a couple were.
However, that said, the wife was a far worse witness than the husband ever was. She was manipulative, self-centred, and generally lacking in credit. Indeed, wherever there is conflict between her evidence and the evidence of the husband I have no hesitation in accepting his evidence.
The wife also acted as her own solicitor briefing her barrister direct. As a result she prepared her own documents and those of her witnesses, she dealt with the husband’s solicitor, and she prepared her case herself.
I refused to accept her first set of affidavits of evidence in chief. Even without the need to comply with all of the rules of evidence because Division 12A applied, those affidavits comprised narrative which was argumentative, based almost entirely on assertions, and in many respects irrelevant. She then prepared a second set of affidavits which were better, but they still comprised significant irrelevant material and material to which no or little weight could be attached. She also annexed confidential documents, pages and pages of diary entries, statutory declarations and statements and references from third parties not being called as witnesses.
All these things caused significant difficulties in the preparation of the case for hearing, but even more concerning was the wife’s failure to comply with orders, her failure to provide full and frank disclosure, and her failure to ensure a valuation of her plant and equipment was available. For example, on the first day of trial, I was informed that from some recent discovery provided by the wife it appeared that what I had been told previously by her was incorrect, namely that she had used the proceeds of a mortgage to pay out all outstanding credit card liabilities. In fact she had only paid out two, and there was $165,000 of the mortgage funds unaccounted for. I was then told by the wife’s counsel that an affidavit would be filed by the wife explaining all this. However, no such affidavit was ever filed despite the wife filing subsequently her substitute affidavit of evidence in chief and her updated financial statement. The Court was then informed for the first time on day three of the trial that the wife had deposited $120,000 in the bank account of her partner Mr W. This was not revealed in her affidavit of evidence in chief or in Mr W’s affidavit of evidence in chief, or in the wife’s financial statement. Further, she put “nil” against the item “cash” in the joint balance sheet dated 3 March 2010.
It is also instructive to note that the wife’s partner, Mr W, who is a Justice of the Peace, took her signature on her documents.
Another example of the wife’s failure to disclose occurred during her counsel’s cross examination of the husband on the topic of the renovations to the M property. A bundle of undiscovered invoices were presented to the husband for the first time (Exhibit W3). Then, in opening the wife’s case her counsel indicated that he wished to lead evidence from the wife as to the renovations. This was objected to, and in submissions it was alleged by counsel for the wife that the wife had previously provided a list of the invoices to the husband’s solicitor. The husband’s solicitor denied this. An adjournment of the case was then sought to allow the husband and his solicitor and counsel to deal with this late production of documents, but I only allowed an adjournment to the next day. When the hearing resumed no further adjournment was sought. The husband’s counsel subsequently cross examined the wife on the bundle of invoices which she alleged substantiated that $90,000 had been spent including $67,000 by her on the renovations. It readily became apparent that these documents did not substantiate this claim. The “meticulously collated” bundle included invoices that had nothing to do with renovations but revealed that the majority of payments for the relevant invoices were paid by the husband from his credit card.
I observe that a further by product of acting for herself was that the wife adopted a strict accounting approach to her claim for property settlement without appreciating how flawed such an approach is. That has been recognised from the earliest jurisprudence in this Court (eg. See Hayne and Hayne (1977) FLC 90-265, Garrett and Garrett (1984) FLC 91-539 and Norbis v Norbis (1986) 161 CLR 513, at 521-523). This difficulty was saved somewhat by her counsel taking a more conventional approach at trial, but it did not assist in the lead up to the hearing.
With the husband’s witnesses, I was impressed with both of them. Ms G was refreshingly frank and honest in her oral evidence, and she was prepared to concede the difficulties that the child would face with a move to Darwin and the uncertainties associated with the merging of two families.
With Ms ON, there was nothing particularly controversial about her evidence. It primarily related to her knowledge of the child, the husband’s relationship with him, and the abilities of the husband as a teacher.
In relation to the affidavits of Mr W and Ms HT, the two witnesses on which the wife relied, the less said the better. The affidavit of Mr W comprised very little reliable information. A good deal of it was simply a repeat of what Mr W deposed that he was told by the wife and others, and there was also unsubstantiated opinion and irrelevant material. It was of no assistance to me whatsoever.
The affidavit of Ms HT was better prepared, and it did corroborate a good deal of what the wife was saying to this Court in relation to parenting issues, but it did not assist me in determining the crucial issues in dispute.
Mr V, the family consultant, gave his evidence well. He is an experienced family consultant and his written report and his oral evidence were helpful to me. However, try as he might I do not consider that he was able to justify his recommendation that the child be permitted to relocate to Darwin with the husband.
He latched on to what I consider to be ambiguous comments made by the wife about her employment, describing them as disingenuous. He then wondered whether that approach was “fairly typical of the manner in which she deals with situations, particularly the future of parenting arrangements for [the child]”, and suggested that they “might impact other parts of her reasoning about the relocation” [my emphasis].
Mr V also took the wife’s description of the husband as generally “highly volatile” and compared that with how the husband presented to him at his interview, finding no evidence of “tenseness” or “unpredictability”. Thus he doubted the wife’s criticism, and indeed suggested that “perhaps” the wife had “displayed more propensity to less than predictable behaviour” with limited if any basis.
How Mr V applied these ruminations in arriving at his recommendation is not spelt out in his report, or in his oral evidence, but clearly he took a set against the wife. This is unfortunate given of course his only exposure to her was at one face-to-face interview and during one telephone conversation. Indeed, in his report he made the obvious point that “[t]he family report represents a snapshot of the families’ functioning, relationships and issues” and “[i]t is to be understood in that light.” It seems to me though that Mr V disregarded his own warning.
It is apparent to me that Mr V was clutching at straws in attempting to justify his recommendation. For example, in paragraph 60 of his report he comments that “[the child] could happily continue in [E] in my assessment, but he might be happier engaging in Darwin schooling and lifestyle” [my emphasis]. However, Mr V at no point explains the basis of this assessment. Then, out of the blue, in paragraph 72 of his report he says this:
On balance, [the child’s] relocation with his father to Darwin appears to be an option that would not harm him emotionally and would not impair his attachment and bond with his mother, which is clearly healthily developed and durably strong (as it is with his father). It would have the potential to expose him to a greater range of educational opportunities, which appears to be a particular challenge for someone with his undoubted intellectual curiosity and evidently keen interest in matters scientific. As for the outdoor lifestyle trumpeted by [the mother], there would appear to be ample opportunities for [the child] to engage in that on the weekends and holiday times with his mother. Darwin is not a too difficult place for a child to engage in an outdoor lifestyle either ….
In examination in chief I asked Mr V what was the primary reason for his recommendation, and he said this:
My impression was that the boy was more slightly – on balance, slightly more strongly attached to his father, and I also gauged that the boy has a very outgoing, bubbly, engaging personality, that he would have little difficulty establishing a new range of friends and routine away from [E], but it was on balance. It was not, you know, a clear-cut ‘definitely, it must happen’ or ‘it must not happen,’ but on balance, yes.
However, it is significant that Mr V did not specifically mention anything about attachment in his report. If anything though the impression gained from his report is that the child is equally attached to both parties.
As to the second issue mentioned, like in paragraph 72 of the report, the focus is on how there would be few if any difficulties for the child in settling in in Darwin, but there is no suggestion in Mr V’s report or oral evidence that he is anything but settled in E, or that he is experiencing any difficulties with life in that town.
Mr V’s cross examination at the final hearing demonstrated even more pointedly the inadequate consideration that he gave not only to the settled nature of the child’s life in E, but to the difficulties that would be associated with a move to Darwin. It would involve regular and frequent travel between Darwin and E, living in an unfamiliar house, attending a new school, establishing new friendships, and living in a new family environment where he was not the only child. The evidence revealed significant uncertainties as to where the husband would live in Darwin, where he would be employed, when his partner would join him, where she would be employed, where the child would go to school, and most importantly how he would react to the changes in his life. Mr V’s response to what I find will be major adjustments in the child’s life was that the child would cope very well. Indeed he made the extraordinary statement based on his limited exposure to the husband, the wife and the child that the child “would adjust like a duck to water”, and he further opined that the child thrives on change! The only rational comment that he made was that with a move to Darwin there would be a “period of adjustment” and it needed to be “handled appropriately”. He then concluded by commenting that the child will do well wherever he lives.
It is clear to me that Mr V has failed to take into account all relevant issues and I attach little weight to his recommendation.
Children’s issues
The proposals of the parties
The husband
The husband proposes that the child live with him in Darwin. He would look to obtain a position as a teacher and depending upon the level of that employment he may be entitled to accommodation. However, subject to the outcome of the respective property settlement applications of the parties the husband may have the opportunity to retain and reside in his property at M in Darwin.
In relation to education the husband proposes to enrol the child in a small Catholic school in the suburbs of Darwin.
On the basis of the child living with him in Darwin the husband proposes that the child spend every second weekend and half of the school holidays with the wife. He envisages the parties sharing the travel and meeting at a half way point between E and Darwin each Friday afternoon or Saturday morning if the wife’s work does not permit a Friday changeover. The handover at the conclusion of the weekend would also take place at a half way point between E and Darwin but on the Sunday afternoon to allow the child to settle in before school on Monday. In addition, the husband would try to ensure that whenever the wife was in Darwin the child would be able to see her during that time.
The husband also envisages that his current partner Ms G would relocate to Darwin where they would live together with at least her two youngest children, and maybe her adult child. Apparently Ms G is able to transfer in her employment to Darwin but the timing of that is somewhat uncertain.
Pending the outcome of these proceedings neither the husband nor Ms G have made any applications for positions in Darwin, nor have they investigated alternative accommodation or enrolled any of the children including the subject child in any school.
Significantly, the evidence of the husband is that if the child is not permitted to relocate to Darwin with him then he would remain living in E and look to continue the current shared care arrangement. I observe that from a practical point of view there would be little difficulty with that. The husband would still have his employment and his accommodation, and he could maintain his relationship with his current partner.
The wife
The wife proposes that the child live with her if the husband relocated to Darwin, but if the husband remains within a 50 kilometre radius of E then like the husband she would propose that the existing shared care arrangement continue.
The wife’s position is that for financial reasons she is not able to move to Darwin, and in any event she does not wish to. She says that the opportunity for her to move has long gone. She concedes that she could obtain employment in Darwin but she claims that she would not be able to commence a business there.
The wife’s clear position is that if the child were to relocate with the husband she would not follow.
It is perhaps somewhat academic given the husband’s expressed position, but in the event that the husband did relocate to Darwin without the child then the wife would propose that the child spend time with him on each alternate weekend and during school holidays. She has concerns though about the impact on the child of the travel that would be involved with that proposal.
Section 60CC of the Family Law Act
I now turn to the factors that I must take into account in determining what is in the best interests of the child.
The primary considerations
(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
There is no question that the child currently has a meaningful relationship with both parents. There is also no question that the child benefits greatly from that circumstance. Further, both parties and Mr V agree that a significant reason for not only there being meaningful relationships but also for the child benefitting from those relationships is the existence of a shared care arrangement. The unknown question then is what impact there would be on that positive position if the child relocates to Darwin. Mr V considered that the strength of the relationship that has already been established would ensure that the bond between the child and the non-resident parent will not be affected by the proposed relocation. In cross examination he also indirectly suggested that “managed appropriately” there will be no negative impact arising from the change of circumstances, including to the child’s wellbeing, but to repeat, I do not consider that Mr V has adequately taken into account all of the adjustments required and all of the uncertainties involved with the proposed relocation.
Despite the evidence of the strength of the bond between the child and both of his parents, the evidence before me leaves open the prospect of a negative impact to the wellbeing of the child if a change is made from the current shared care arrangement which provides the basis for the meaningful relationships between the child and his parents to an arrangement where the child is living primarily with one parent and spending alternate weekends and part of the school holidays with the other parent.
(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;
Whilst the wife raised in her affidavit an allegation that the husband had pushed her, this was not pursued in cross examination or at all at the final hearing and therefore I disregard it. In the end result then there was no suggestion by either party that there was a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(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;
The child is too young to express a view about the issue in dispute and he was not interviewed by Mr V. Thus there is nothing to take account of in this regard.
(3)(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Each party conceded on the first day of the trial that they both have a close and loving relationship with the child. This was also confirmed on the first day by Mr V in his evidence. In his report he observes that “[b]oth parents interacted with [the child] in a very warm and affectionate manner” and “[the child] was completely at ease with each of them.” Further, in his evaluation, Mr V concluded:
59.[The child] has parents who adore him and exude immense pride in his obvious intelligence. He displays a wonderfully contented personality with each parent.
Significantly, and to repeat, both parents accept that the strength of the child’s relationship with each of them is because of the shared care arrangement that has been in existence for some time. Indeed in cross examination the husband agreed that the reason why he does not want to move to Darwin without the child is because there will be a detrimental impact on the child as a result. Disingenuously though he suggested that that would not apply in relation to the wife and the child if his proposal was accepted.
I also make the point again that I do not accept Mr V’s assessment that the child is slightly more attached to the husband than the wife. There is no qualitative or quantitative evidence to support that view.
As to the child’s relationship with other persons, the only relevant evidence was the wife’s concession in cross examination that the child has a good relationship with the husband’s partner, Ms G, and her children. There was nothing about the relationship between the child and the wife’s partner, Mr W, but importantly the husband did not suggest that there were any problems with that relationship. Any relatives of the parties live either interstate or overseas, and obviously the child’s friends and other relevant adult figures all reside in E. Neither party nor the child have any family ties in Darwin or any significant friends there.
(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
There is ample evidence that the husband will be positive in this regard in relation to the ongoing relationship between the child and the wife, but I agree with the husband’s counsel that I cannot be as confident about the wife’s position. She has shown a “disregard” for the husband and his role in his son’s life. I will elaborate on this later in these reasons, but for now I briefly mention the following:
131.1Enrolling the child in an early learning centre despite the husband’s objection and without informing the husband.
131.2Describing herself in the application for enrolment as the “primary carer” and indicating in that application that the husband was not to collect the child until he agreed to a parenting plan.
131.3Telling the husband that he would have supervised time unless he undertook to agree to her shared care times and dates.
131.4Withholding the child until the husband agreed to her going overseas.
131.5Proposing in her affidavit of evidence in chief that even if the husband remained living within a 50 kilometre radius of E that she should now have sole parental responsibility rather than continue the agreed position of equal shared parental responsibility. I observe of course that at the final hearing the wife changed her mind about this and sought that there be equal shared parental responsibility regardless of the outcome.
131.6Informing the child that the husband would not let her collect him from the husband’s house rather than explaining it in more neutral terms.
If it were the case that the husband moved to Darwin without the child then I would be quite concerned about whether the mother would at all times facilitate and encourage a close and continuing relationship between the husband and the child. However, with a shared care arrangement the opportunities for this to occur are few and the impact on the relationship would be minimal, as history has shown.
(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of the parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom she has been living;
This is an highly relevant factor in this case. The husband is looking to significantly change the child’s circumstances and in particular move from a shared care arrangement in E to an arrangement where the child will primarily live with him in Darwin and spend time on alternate weekends and school holidays with the wife in E. Although Mr V does not seem to recognise the major adjustments that the child will need to cope with as a result of such a change, I certainly see this as particularly problematic.
Mr V’s assessment in his report was as follows:
59.… One could argue reasonably that whichever arrangement [the child] ends up in (be it residing with his mother, residing with his father in Darwin or an equal time one in either location) he will be very well cared for and will, in most part, continue to thrive emotionally and intellectually.
However, when confronted with the adjustments that the child would have to cope with he conceded that his optimism can only be maintained if the change is appropriately managed. Now, that in itself involves an element of uncertainty.
I consider that the risks associated with the proposed change are significant. To repeat, there would be a new home, a new school, new friends, and a new family for the child to cope with in a scenario where his mother’s presence in his life is substantially reduced.
It is telling that the husband does not consider that to change the shared care arrangement is risk free. To repeat, if he cannot relocate with the child he will stay in E because of the advantages of the existing shared care arrangement.
I observe that in her final submission the husband’s counsel suggested that if relocation was permitted that change would not be significant because the parties had “organised their lives when together to live the same distance apart as the husband now proposes”. However, this overlooks that the circumstances have changed dramatically since then. The parties are now separated and their lives are no longer inter-twined as they were. Indeed, this is highlighted by the husband’s proposal for the time spent if he and the child were to move to Darwin and the wife remain in E.
(3)(e) the practical difficulty and expense of the 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;
This is also a relevant factor here. The effect of the husband’s proposal will be an inevitable reduction in the time the child can spend with the wife. To travel between Darwin and E takes approximately 3 hours, and with the child attending school it is only weekends and school holidays that he can realistically travel between the two places. They are also sufficiently apart for it to be impractical for the child to travel each weekend, and thus the proposal is for that to occur each alternate weekend. Even then it will involve a three hour road trip on the Friday and then another three hour road trip on the Sunday, and this will be undoubtedly tiring for the child.
The important issue here though is the impact of this proposal on the child’s right to maintain his relationship with the wife and enjoy direct contact with her on a regular basis. Consistent with my findings to date I am satisfied that the husband’s proposal will have a significant negative impact in this regard. The obvious comparison is with the option of maintaining the status quo, an arrangement which has served the child so well.
Again the husband’s counsel submitted that given how the parties had previously organised their lives living in the same two towns relocation to Darwin would not “substantially effect the child’s right to maintain time with both parents on a regular basis”. However, I reject this submission for the same reason as set out above.
(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to meet the needs of the child, including emotional and intellectual needs.
In relation to the physical needs of the child the wife did not challenge the capacity of the husband currently to meet the same, and save in one respect, neither did the husband in relation to the wife. The issue that he did raise was the allegation that the wife worked long hours and either took the child to her work, left him with the husband or kept him in child care for lengthy periods. Now that may have been the case at times in the past, but it is not a feature of the wife’s current work arrangements. In any event, and despite this, the husband deposed in his affidavit that “the mother provides good care for [the child]”, and at the first day of the trial both parties indicated that there were no current issues about the other’s physical care of the child that they wished to promote. Thus I propose to proceed on that basis.
With the child’s emotional needs, again neither party has directly put the capacity of the other of them to meet these needs in issue, but I consider that it is a matter that has to be addressed in assessing the proposal of the husband. In other words, the issue is the ability of the husband to handle the major adjustments for the child that will result from a move to Darwin, coping with a new home, new school, new friends, new family and most significantly reduced time with his mother. To repeat, Mr V opined that how this was handled could determine the success or otherwise of the move. To be fair, there is no evidence to suggest that the husband does not have the ability to deal with this, but again it is the element of uncertainty that is the concern.
Nor should the role of the wife in all this be forgotten. She will need to be supportive of the move and be able to handle any emotional fallout from the child. In this regard the husband himself has pointed to the wife’s failings in the past in maintaining his relationship with the child, and thus again a query is raised over the entire proposal.
Turning to the wife’s proposal of maintaining the status quo it might be thought that the emotional needs of the child could also become important. In other words, the husband suggested in his evidence that he was unhappy living and working in E, that there was “gossip” which he had to deal with, and negative comments from the wife. Thus, if the husband remains living in E there was the prospect of these issues impacting on the child and causing emotional difficulties. However, as the wife’s counsel correctly pointed out, during the hearing these concerns were not promoted by the husband as major issues. Nevertheless, it is still a consideration and introduces an element of uncertainty as to the future in the event that the husband does not relocate.
In relation to the child’s intellectual needs, this is a significant issue for the husband in proposing a move to Darwin. He suggests that there are “a wider variety of schools to choose from for [the child] in Darwin”. However, the wife says that the schooling available in E is more than adequate and caters for all of the child’s needs now and into the future.
This issue was a matter referred to in Mr V’s report, but again his treatment of this reveals a lack of adequate consideration and frankly an inconsistent approach. As referred to above, in paragraph 72 of his report Mr V states that a move to Darwin “would have the potential to expose him to a greater range of educational opportunities, which appears to be a particular challenge for someone with his undoubted intellectual curiosity and evidently keen interest in matters scientific.” In the search for some justification for this conclusion, there is paragraph 64 of his report where he says as follows:
[The mother] advances particular schooling in [E] as most advantageous for [the child]. [The father] advances the greater variety and quality of schooling in Darwin as a fine reason for [the child’s] relocation. One would understand that [the father] as a schoolteacher with considerable employment experience in the Darwin and [E] school systems would have accurate knowledge about the relative merits of schools in each location. It would appear from the interaction with each parent available to me as part of the report process that neither parent has made enough effort to explore with each other the schooling options for [the child] comprehensively. Rather it seems to have been swept aside by the tug-of-war about relocation in general.
Then in the opening paragraph of his evaluation Mr V said this:
One could argue reasonably that whichever arrangement [the child] ends up in… he’ll be very well cared for and will, in most part, continue to thrive emotionally and intellectually.
Then finally there are his observations of the interaction between each parent and the child as follows:
56.Both parents interacted with [the child] in a very warm and affectionate manner. [The child] was completely at ease with each of them. [The mother] had brought along an anatomy cube, which [the child] played with and asked questions about. The cube was typical, she said, of the educative toys she had at home for [the child]. She responded using the long technical words, commenting to me what a wonderful memory [the child] had for these scientific details. Each parent commented about [the child’s] curiosity, question asking and high intelligence. They were both clearly inordinately proud of their son and his talents.
57.While [the mother] paid close attention to [the child\ and to answering his questions, [the father] adopted a different approach, attempting to engage [the child] in dialogue about his questions. One might portray his approach as a teaching approach, hoping to draw out his son’s knowledge, rather than just giving him the answer. [The child] reacted most positively to each parent’s approach. His keenness to know seemed to be insatiable. I was particularly taken with his bright, bubbly personality, full of smiles and grins in between his questioning.
58.[The father] spoke about the scientific posters at home and how [the child] absorbed the knowledge on them…
The fact of the matter is that the child currently attends a “small Catholic school” in E and the husband proposes that he will attend a similar school in Darwin. Thus, where is the difference in terms of his immediate education? I also observe that the husband has not yet made any enquiries of any of the likely schools in Darwin, and thus there is no basis for any comparative assessment of schools or the type of education that the child will be exposed to. This also again highlights the lack of foundation to Mr V’s comments in paragraph 72 that a move to Darwin “would have the potential to expose him to a greater range of educational opportunities.”
In any event, it is quite apparent from the evidence and in particular the observations of Mr V of how each parent interacted with the child that despite the different approaches, they each have the capacity to adequately meet the intellectual needs of the child. I observe though that no consideration was given to the impact upon the child’s progress at school in the event of him relocating to Darwin and there being a consequent significant reduction in the time that he spends with his mother. In other words, on that basis the wife would no longer have the direct input that she currently has, along with the husband, to the education of the child.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part would have on that right;
The wife says that she is one eighth Aboriginal and the child is therefore one sixteenth Aboriginal, and she submits that it is important to be able to “continue the connection with (her) traditional indigenous culture”. Now, it is certainly important for the wife and the child to know of, to learn about and to enjoy their culture, but I fail to see how any parenting order that is proposed will impact in any way on this. Indeed, it became apparent that the wife has yet to attend the lands in northwest Victoria where her great-grandfather lived and she is yet to research any of the culture that she says she needs to expose the child to.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
At different times each parent has demonstrated positive and negative attitudes towards the child, and to the responsibilities of parenthood. On the positive side both parties can be justly proud of their child and they can each take credit for how he presents. Mr V described him in this way:
[The child] reacted most positively to each parent’s approach. His keenness to know seemed to be insatiable. I was particularly taken with his bright, bubbly personality, full of smiles and grins in between his questioning.
The parties have also recognised the advantages of having a shared care arrangement and in general terms they have each been positive in attempting to ensure that such an arrangement has benefitted their child.
However, there has been a negative side and in that regard I highlight the following:
The wife
152.1On 2 November 2008 the wife enrolled the child in S Early Learning Centre to start on 3 November 2008 despite being aware of the husband’s objection to that and without telling him.
152.2On 11 November 2008 the wife amended the enrolment form at S Centre to describe herself as the “primary carer” and to record that the husband was not to drop off or collect the child from the centre until a parenting agreement had been reached. As a result of these false statements, when the husband found out from the day carer where the child was and went to collect him on 12 November 2008, he was not allowed to and the police were called. This was eventually resolved and the child returned to the care of the husband, but this demonstrates a failure by the wife to appreciate the role that the husband in the child’s life and her preparedness to put the child’s interests aside.
152.3In May 2008 the wife took the child to Sydney to attend her father’s funeral. Prior to this the parties had reached an agreement that the husband could take the child to Townsville in July to attend a family wedding. However, the wife kept the child in Sydney and when the husband contacted her as to when the child would be returning she responded to the effect that she would let him know when she was ready. When still nothing had happened by July the husband travelled to Sydney himself and collected the child. Again, this demonstrates a failure to appreciate the husband’s role in the life of the child.
152.4On 22 August 2008 the wife dropped the child off at the conclusion of his time with her. However, what she did not tell the husband was that she was travelling overseas and that she expected the husband to look after the child for an extended period of time. She eventually returned from overseas on 6 September 2008.
152.5On 28 October 2008 the parties arranged a birthday party for the child and following the same the child was to return to the husband’s care for fourteen days while the wife travelled into the country for work. Despite this the wife put all of the child’s birthday presents in her car and took them home with her. This caused the child great distress and demonstrates a poor attitude to the child and his needs on the part of the wife.
152.6The child was due to be handed over to the husband on 9 December 2008 but the wife kept the child until 16 December 2008. She did this without any forewarning and without any real explanation. Again, this reveals a failure to recognise the child’s need to have regular and frequent contact with his father, and is typical of her high-handed selfish manner.
152.7The husband alleged that the wife removed his diary from his home, and thereafter he forbad her from attending there, even taking out a trespass notice. As a result, when asked by the child why she could not pick him up from his father’s home, the wife told the child that the husband would not allow her to do it. I consider that to be an inappropriate comment by the wife and again fails to appreciate the needs of the child. She could have been quite neutral in what she told the child about this but she chose to do otherwise in order to promote her own interests.
152.8In her affidavit of evidence in chief [paragraph 36] the wife proposed that if the husband moved to outside a 50 kilometre radius from E but the child remained living with her then she should have “sole parenting responsibility” for the child and she would “inform the husband of all proposals and decisions made by … [her] which affect the child’s long term care, welfare development”. She confirmed this in her oral evidence, but when asked if the reverse should apply if she was in E and the husband and the child were in Darwin, she replied in the negative.
In cross examination she attempted to avoid the plain meaning of this proposal, but it became an exercise in obfuscation by her.
Given the relationship that the child has with his father the suggestion that the wife have sole parental responsibility under any circumstances is extraordinary and demonstrates a poor attitude on the part of the wife. That is highlighted by her evidence that the reverse should not apply.
Fortunately though, in the end result, the wife’s proposal became that there should be equal shared parental responsibility regardless of where the child and the parents were living.
152.9It was suggested to Mr V by the husband that the wife makes negative and denigratory comments about him to and in front of the child. However, this was not explored in cross examination, and I am not able to make any finding about this one way or the other. It is apparent though that the child is aware of the parents’ differences and of their conflict. The wife reported to Mr V the child asking “why can’t you two get along?” Now, unless both parties address this it may have serious consequences for the child. As Mr V said in paragraph 70 of his report:
Commentary on their relationship and how they see each other as personalities serves to underline the emotional predicament facing [the child] wherever he ends up living. I doubt that his parents will easily give up frustration with each other or readily give up attempting to get their own way with each other. Over the longer term, [the child] could face increasingly significant emotional and psychological strains in his attempt to balance his loyalties and feelings for his parents.
This is of course an issue for both parties.
152.10The wife sent a letter to the husband’s solicitors dated 4 November 2008 suggesting without any foundation whatsoever that he had a mental illness, that she holds “genuine concerns” for the child’s safety, and that unless he agreed to her demands for contact time and handovers she would not allow the child to be with the husband without supervision or until there is a parenting agreement. Ultimately these issues were sorted out but this was extraordinary conduct on the part of the wife, although typical of how she has acted on occasions in the past.
The husband
152.11In cross examination the husband agreed that he did not want to move to Darwin without the child because the reduction in time that the child would have with him would have an adverse effect on the child. However, he suggested that it would be different vis-à-vis the wife if the child did move to Darwin with him. In other words he considered that the child would adjust, and thus there would be no adverse impact. Now, in the context of this case I find this to be an extraordinary proposition, and one that does the husband no credit. It demonstrates a failure to appreciate the role that the wife plays in the child’s life.
Contributions
I now turn to the respective contributions of the parties under s 79(4) of the Family Law Act.
Section 79(4)(a) and (b)
Given the state of the evidence it is difficult to assess whether one party made a greater initial contribution than the other. However, it would seem that the wife has brought more assets into the relationship than the husband, and although I cannot be precise about it, I propose to take that into account when weighing the respective contributions over time.
Following the commencement of cohabitation the husband made the following contributions:
179.1The husband was in full time employment as a teacher and I find that he applied his income to the benefit of the family comprising initially himself and the wife and then including the child after his birth in October 2004. I note of course that for a substantial period (March 2001 to July 2006) the husband lived in Darwin and the wife lived in E, but that was solely for work purposes and that does not detract from this finding. They still continued as a family unit and also spent as much time together as they could.
179.2In relation to the purchase of the property at M, the payment for it, the cost of subsequent renovations, and the purchase and sale of motor vehicles I will address those issues when I consider the wife’s contributions.
The wife’s contributions under this heading are as follows:
180.1The wife operated her two businesses in which she had interests. Although there is no evidence as to the precise income that she received from these enterprises, save and except in relation to one issue it is not in dispute that, like the husband, the income she did receive benefitted the family up to the time of separation. In this regard it is important to note that over a 5-6 year period the wife paid to the husband an average of $200 per week from her businesses, and she paid the rent for the husband’s accommodation in Darwin before the property at M was purchased. Further, her business sponsored his attendance at and involvement in interstate and international cycling meets, and at least one of the bicycles was purchased by the business. There was also no issue that the husband did not contribute to the operation of the wife’s businesses in any significant way. He says that he assisted with cleaning and other tasks maybe once per month, but that is the extent of it.
However, the one issue that I want to highlight is the mystery surrounding the wife’s use of credit cards. The husband had little idea of how the wife managed her finances, those of the businesses, and those of the family. However, when discovery was made by the wife for the purposes of the proceedings (albeit incomplete) it became apparent that the wife had a substantial number of credit cards primarily subsequent to separation but apparently also prior to separation. There is inadequate evidence as to what was owing on these credit cards at separation, but as at December 2009 they apparently totalled approximately $146,300. In addition, as referred to already, the wife claimed to have trading debts of $167,300 and a tax debt of $46,000. Further, the wife had access to the husband’s ANZ credit card via a supplementary card both before and after separation. The amount outstanding at separation on this card was approximately $30,000, and at the time of the hearing was approximately $46,000, albeit the account was closed by the husband in October 2008. The husband did not use this credit card after separation.
The point here is that the wife has been secretive about her expenditure both before and after separation, and specifically in relation to her use of credit cards, and that raises an element of doubt as to whether in fact all of her income was used for the benefit of the family. Indeed, I must say that there was still a mystery surrounding the wife’s finances even by the time of the conclusion of the hearing. I also observe that she was not truthful in her affidavit material as to her use of the husband’s credit cards for the purposes of her business. In other words she denied using them, but the documentary evidence indicated otherwise.
Finally, I note that although the husband did not greatly assist the wife physically in the operation of her business, the fact that he allowed her to use credit cards in his name for the purposes of the businesses when she needed credit facilities should be taken into account as a contribution on his part.
180.2In May 2001 the property at M was purchased in the sole name of the husband. The purchase price was $195,000 plus expenses and statutory charges. A loan of $175,500 was obtained from St George Bank in the husband’s name, and the wife contributed $25,000 from her savings/income for the deposit. Thereafter, the husband primarily lived in that property and he paid the majority of the mortgage repayments, the majority of the rates and taxes and the insurance premiums. However, the wife who lived there with the husband when she came to Darwin, also “paid” some of the mortgage repayments and the rates and taxes by depositing money from time to time into the account from which the husband made these payments. I observe though that her claims in this regard did not entirely come up to proof.
180.3Renovations were undertaken at the M property from September 2001 until June 2005. The wife’s case was that $97,660 was spent in total on these renovations, comprising $30,000 obtained by refinancing the mortgage secured over the title to the property, and $67,660 in cash from her. The husband disagreed with this but he was not able to be precise about how much was spent because he did not have any of the documents. Despite requests of the wife to discover and produce the relevant documents, only one document was produced until during the husband’s cross examination a folder allegedly containing the relevant documents was produced and presented (see Exhibit W3). I have already referred to this issue and I will not repeat what I have said. Suffice to say that in the end result and after a significant amount of time was spent on this topic in cross examination of the wife it became apparent that the documents in the folder simply did not support the wife’s case. Many of the documents had nothing whatsoever to do with any renovations and those that did indicated that only approximately $12,000 of expenditure could be referred back to the wife, and the majority of the expenditure was met from the husband’s credit cards.
180.4During cohabitation there were a number of motor vehicles purchased and sold by the parties, and various loans taken out in relation thereto. It is not possible on the evidence before me to determine the respective financial contributions of the parties to these motor vehicles, despite that being part of the wife’s accounting approach to the issue of property settlement. To repeat, such an approach is inappropriate and against authority and I do not propose to take this issue any further.
Section 79(4)(c)
The wife claims to have made far greater contributions under this heading than the husband. She claims that she paid for and met all of the needs of the child prior to separation, including paying the child care expenses. She claims to have been the child’s primary caregiver save and except over a four month period from July to December 2005. She also claims that she contributed far more than the husband to the “upkeep” of the household in E given that for a significant period of time he was primarily living in Darwin. She says that he did nothing by way of household chores when he did come to E. The wife further says that she was the one to undertake the travelling to visit the husband when he was living in Darwin, and she undertook household duties when there each weekend.
The wife says that she attended to the management of the financial affairs of the family, and she claims that she assisted in the maintenance and improvement of the home in Darwin.
The husband did not seriously challenge any of these claims save and except perhaps in relation to the care of the child. He certainly played a significant role in caring for the child and attending to the household chores, particularly when he took four to five weeks long leave after the child was born to help the wife and later when the wife was working long hours in her business. Indeed I consider that the wife exaggerated her claims of being the primary caregiver. The husband also clearly attended to the maintenance and improvement of the M property. However, overall it is apparent that the wife’s parent and homemaker contributions were greater than the husband’s prior to separation.
The wife also attempted to claim credit for the assistance that her father provided during the period of cohabitation. For example, apparently he voluntarily undertook all accounting and taxation work for the parties from 1998 to 2005. In particular, he assisted the wife in the running of her businesses with financial advice and bookkeeping. He also assisted in maintaining and improving the home in E. However, there is no evidence to indicate that these contributions were made on behalf of the wife solely. Indeed, the nature of the contributions would indicate that they were made to jointly benefit the husband and the wife, and that is how I propose to treat them.
The wife took time off work to care for her terminally ill mother and her elderly father, and she received financial support from her father at these times. She sought to have this taken into account in her favour in assessing her contributions under this heading, but she is misguided in this regard and I note that her counsel did not specifically pursue that at trial. There is no basis for treating her contributions in that regard as contributions to the welfare of the family.
Post-separation
In relation to the financial contributions of the parties after separation the mystery surrounding the wife’s financial arrangements not only continued but became even more mysterious.
From the husband’s point of view, he remained living in the M property until he moved back to E in July 2006. Since then he has lived in rented accommodation subsidised by the Education Department. He has rented out the M property meeting the mortgage repayments, the rates and taxes and insurance premiums, and all other associated costs from the rental received.
As referred to already, post-separation the husband refinanced the mortgage secured over the title to the M property. In June 2006 he borrowed a further $10,000 which he put towards the purchase price of a motor vehicle. Then in August 2007 he borrowed a further $13,304, but the husband was unable to recall the circumstances of this or what the money was used for.
Significantly, as a result of the husband’s continuing employment as a teacher his superannuation entitlements in NTGPASS has increased since separation. However, it must be remembered that that has in effect built on his entitlement as at separation, an entitlement to which the wife made an indirect contribution.
With the wife, she continued to operate her businesses until her principal business, BH Business, ceased trading in December 2008. Thereafter her evidence is that she has been employed with the business that in effect took over her business.
On 20 July 2006 the wife purchased the property at G Street, E, for $235,000 with her father providing the bulk of the funds required. She contributed $16,237.50, and then made payments of $500 per week to her father until her father’s death in May 2008. The wife has lived in this property meeting all the outgoings and associated costs. As I have referred to earlier, either her indebtedness to her late father’s Estate will be offset against her entitlement to the Estate or she will pay it once she receives her entitlement.
I note that the husband’s case is that the wife used his credit card to make payments towards the purchase of the G Street property. He is able to point to debits on the card at about the time of purchase, but there is no evidence that the wife used that money towards the purchase price. For my part that is the end of this submission.
As at December 2009, separate to the amount that the wife says she still owes the Estate of her father, there was a mortgage to ANZ secured over the title to the property with an outstanding balance of $43,844. There was no evidence as to how this arose, but I assume that it represents the balance outstanding from the amount of $55,000 borrowed by the wife to start up a new business via a company known as D Business Pty Ltd. This business has not yet commenced to trade.
As referred to already, in December 2009 the wife borrowed $256,000 from Westpac secured over the title to the G Street property ostensibly to pay out the mortgage to the ANZ Bank, to pay out all of the wife’s outstanding credit card debts, and to pay other liabilities such as her income tax. However, in direct contradiction of her own evidence, and without disclosing this until well into the trial, the wife did not in fact pay out all of her credit card debts but deposited $120,000 into the account of her partner Mr W.
The wife’s use of credit cards both before and after separation has been a significant issue in this case, and the wife’s failure to provide full and frank disclosure in a timely manner and in accordance with the rules of this Court has been nothing short of disgraceful. Added to that is her failure to tell the truth about these matters and the fate of the money received from Westpac.
I note that the wife is to be solely responsible for all post-separation liabilities incurred by her including save the said amount of $43,844 which was owing pursuant to the mortgage to the ANZ Bank as at December 2009.
The wife also continued to access the husband’s ANZ credit card account after separation, debiting substantial amounts of money ostensibly for use in her business and to meet her own (and presumably the child’s) living expenses. Equally though she made repayments off this card but as at the time of the hearing there was still $46,000 outstanding compared to $30,000 at separation. The husband of course allowed this to occur and this should be taken into account as a contribution on his part, albeit the wife has assumed sole responsibility to meet the outstanding amount.
A positive financial contribution made by the wife post-separation was the payment by her of a judgment debt of $2678 owing by the husband in relation to the M property.
Turning to the parties’ respective contributions to the welfare of the family, there has been a shared care arrangement in place for the child since separation, and in that regard both parties agree that their contributions have been equal. The husband though has paid child support to the wife given that the wife is said to earn less than him.
In relation to the homemaker contributions the husband has attended to all that is required at the M property and the wife likewise at the G Street property.
From this analysis of the evidence I find that the wife’s post-separation contributions are greater than the husband’s on the basis that I have included the G Street property in the pool of assets.
Conclusion on contributions
The husband’s counsel submitted that as at separation the contributions should be assessed as equal. Then, on the husband’s case of leaving in the G Street property, that outcome should be adjusted to 60%/40% in the wife’s favour as at the date of the hearing.
In proposing this the husband’s counsel placed significant emphasis on the increase in the husband’s superannuation entitlement since separation as offsetting the introduction of G Street to the asset pool.
Despite what was said on the first day of the trial, the wife’s counsel ultimately submitted that as at separation the contributions should be assessed at 55%/45% in the wife’s favour. Then, if the property at G Street is included in the asset pool the wife’s contribution should increase to 70% to 75%, but if the property at G Street is left out then the final percentage should remain at 55%/45% in the wife’s favour.
For my part I find that up to separation the wife did make greater contributions than the husband. There was the greater number of assets she brought into the relationship, but more importantly, during cohabitation I am satisfied that she made the greater financial, non-financial, direct and indirect contributions as well as the greater homemaker and parent contributions. Thus I accept the wife’s counsel’s submission in this regard.
As to the G Street property, I confirm that I consider it appropriate to include that in the asset pool. Thus the introduction of this property by the wife is a significant contribution by her and clearly should be given great weight. There is also the circumstance that whatever the debt to the wife’s late father’s Estate is, it will be covered by her entitlement, thus adding to the weight to be attached to this contribution. On the other hand the increase to the husband’s superannuation since separation should also be afforded great weight, but the problem is that there is no evidence of its worth at separation. Thus all I can do is take it into account in a general way. I also observe again that in considering this increase, it is necessary to take into account that up to separation the wife made an indirect contribution to the husband’s entitlement at that time. That of course cannot be said to be the case in reverse when considering the contribution by the wife of the G Street property.
In all the circumstances I find that the wife’s contributions significantly outweigh the husband’s overall and they should be assessed at 70%/30% in the wife’s favour.
Section 75(2) of the Family Law Act 1975
I now turn as s 79(4)(e) of the Act dictates to the individual matters to be taken into account pursuant to s 75(2). However, I will only address those factors that have either been raised by one or other of the parties or those that I consider relevant.
(a) the age and state of health of each of the parties;
The only issue raised here by either party was the reference by the wife to the husband having recurring bouts of Ross River Fever. The husband though did not consider this to be an issue for example affecting his ability to continue working, and therefore it is curious that the wife should raise this herself. I suspect though that she was more wanting it to be taken into account when considering what parenting orders should be put in place.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
In relation to the income of the parties the financial statement of the husband (as clarified in cross examination) reveals that he earns $2045 gross per week. That includes the rent received from the M property. His total expenditure is $1613 per week (as clarified in cross examination). Thus he has an excess of income over expenses.
For the wife’s part she claims to earn only $675 per week by way of salary. In addition she receives share dividends ($20.23), family benefit ($48.77) and child support ($56.67). Her expenses are said to be $823.57. However, as I have already referred to I am not entirely satisfied that the wife in fact does not still have an interest in the business that she says she works for. It is also instructive to consider her application to obtain the Westpac loan of $256,000 in December 2009. In that application she indicated that her income was $85,435, ie, approximately $50,000 more than she has deposed to in her financial statement. In cross examination she said this was a mistake and it should have been $35,475. However, all of that, coupled with my finding about her lack of full and frank disclosure in relation to other financial matters, leaves me to doubt the accuracy of what the wife is telling the Court in that regard.
Then there is the wife’s claim that she owes her partner Mr W $12,000, despite this not being included in her financial statement. She says that that comprised $600 per month provided by Mr W for her to meet the alleged shortfall between her income and her expenditure. Again though, in the circumstances, I am concerned at the accuracy of this evidence.
In the end result I am not in a position to make definitive findings as to the wife’s income and expenditure. I can say though that I am not satisfied of the accuracy of her evidence about this and thus the fact that the husband has an excess of income over expenses should not lead to any adjustment in the wife’s entitlement to property settlement.
In relation to the parties’ respective capacities for appropriate gainful employment, I do not consider that there is any issue to be considered here. The husband is employed as a teacher and he is able to continue that employment which is appropriate. The wife is at the very least employed in the personal services industry and she is able to continue that employment. She also has also qualifications in the industry.
With the property of the parties, I have set out the same in paragraph 175 above. It should be noted though that that does not include all of the liabilities of the wife given that I have found that it is not appropriate to include the mortgage to Westpac or her credit card liabilities. I have also not included her taxation debt or the claimed trading debts of her previous business.
As a result of my findings on contributions the wife would be entitled to more property than the husband. That is tempered of course by the circumstance that the wife will have significant liabilities to meet, but there is still likely to be a disparity. That disparity needs to be taken into account, not from the point of view of equalising or attempting to equalise the parties’ property, but from the point of view of comparing their respective financial positions and what their future needs may be.
In relation to financial resources, there is of course the wife’s entitlement to the Estates of each of her deceased parents, and her family provision claim in relation to her late father’s Estate. I have set that out in some detail above and although it is not clear what the wife will ultimately receive it is the case that she will receive something, and that needs to be taken into account here.
(c) whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years;
Although in the orders that I will make I will provide for the possibility of the husband moving to Darwin and the wife and child remaining in E, my primary order will in effect be that the current shared care arrangement continue. Thus I approach this factor on that basis, and in that circumstance it does not provide any reason for any adjustment either way.
(m) if either party is cohabitating with another person – the financial circumstances relating to the cohabitation;
Although both parties have partners, neither “couple” is cohabiting and thus there is nothing relevant to be considered here.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
The husband has been paying child support since March 2009 pursuant to child support assessments. He is not in arrears, and it is expected that he will be paying child support into the future. There is no basis here for any adjustment either way.
Conclusion on s 75(2) factors
Surprisingly, the husband’s counsel submitted that there should be no adjustment as a result of a consideration of the relevant s 75(2) factors save and except if the child is able to relocate to Darwin with him. That of course is not something that I am permitting.
The wife’s counsel, to repeat, submitted that if the G Street property is included in the asset pool then there should be no adjustment, but if that property is not included in the asset pool then the wife should have 5% more because she is required to meet her liabilities.
For my part, given that I am including the G Street property I need to take into account the disparity between the property of the parties in favour of the wife, and in any event her financial resources. There are of course the significant liabilities that the wife still has to meet, but I accept the submission of the husband’s counsel that it was the wife who got herself into debt, and the husband should not have to bear any responsibility for that. Thus there should be an adjustment in the husband’s favour of 10%.
Section 79(4)(d), (f) and (g) of the Family Law Act 1975
Next, I am obliged to consider the effect of any proposed orders upon the earning capacity of either party (s 79(4)(d)); any other order made under the Act effecting a party to the marriage or a child of the marriage (s 79(4)(f)); and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide or has provided to a child of the marriage (s 79(4)(g)).
In relation to the first matter, the evidence does not indicate that the earning capacity of either party will be affected by the proposed orders.
In relation to the second and third matters, I have already taken them into account and there is nothing further to be addressed.
Conclusion
The net assets of the parties should be divided 60% to the wife and 40% to the husband.
Just and equitable
Pursuant to s 79(2) of the Act the Court cannot make an order unless the Court is satisfied that in all the circumstances it is “just and equitable” to make the order. To assess that I need to stand back and consider the practical effect of my proposed orders (Waters and Jurek (1995) FLC 92-635; JEL and DDF (2001) FLC 93-075; Phillips and Phillips (2002) FLC 93-104).
The net asset pool (including the superannuation assets) comprises a monetary equivalent of $844,854. In addition though there is the plant and equipment of the wife’s businesses (including the two bicycles) which is to be sold. Thus, and putting aside for the moment those items of plant and equipment, the effect of my findings is that the wife is entitled to net assets to the value of $506,912 (to the nearest dollar), and the husband is entitled to net assets to the value of $337,942 (to the nearest dollar). With the items to be sold the net proceeds will of course be divided 60% to the wife and 40% to the husband.
The wife has had, currently has, and seeks to have the benefit of net assets totalling $273,581 calculated as follows:
Assets
Her property at G Street, E $310,000
Her Telstra shares $2,598
The jointly owned Telstra shares $10,476
Her motor vehicle $15,500
Her interest in D Business $4,130
The dividends received by her from the Telstra shares $3,633
Her superannuation entitlement in Uni Super $9,228
Her superannuation entitlement in Q Super $10,950
$366,515
Liabilities
Mortgage over the G Street property
(as at December 2009) $43,844
Her share of the outstanding balance on the husband’s
ANZ credit card $30,590
Her share of the outstanding balance on the parties’
credit cards as at separation $18,500
$92,934
Financial Resources
Her inheritance from her deceased father’s Estate NK
Her inheritance from her deceased mother’s Estate NK
Her family provision claim against her father’s Estate NK
NET TOTAL $273,581
The husband has had, currently has, and seeks to have the benefit of net assets totalling $571,273 calculated as follows:
Assets
His property at M $460,000
His AMP shares $1,080
His motor vehicle $10,000
His sporting memorabilia $12,000
His motor bike $7,500
The proceeds of sale of his AMP shares $11,735
The proceeds of a draw down on the mortgage
secured over the M property in August 2007 $13,404
His superannuation entitlement in NTGPASS $241,742
His superannuation entitlement in NTSSS $29,885
$787,346
Liabilities
Mortgage over the M property $182,163
His share of the outstanding balance of his ANZ credit card $15,410
His share of the outstanding balance of the parties’
credit cards as at separation $18,500
$216,073
NET TOTAL $571,273
Thus, if the parties each retain their respective assets, superannuation entitlements and liabilities as identified the husband will have to pay to the wife the sum of $233,331. The question then becomes though how the husband would be able to make such a payment. The wife of course seeks an order that the M property be sold and she receive her entitlement from the proceeds of sale. The husband though does not want to sell that property.
For my part the husband should be able to choose how he makes the payment. However, regardless of what he opts for he will only have a limited period of time before the payment is due. In other words, it will not be open to him to simply delay the payment if he decides to sell the property, and a sale cannot be achieved in time.
Towards the end of her final address, and completely out of the blue, the husband’s counsel submitted that there should be a splitting order in relation to the husband’s superannuation entitlement, on the basis that if the husband was required to make a substantial payment to the wife he would be left with very little save and except his superannuation entitlements. However, there had never been an application by either party for a splitting order, and indeed the parties ran their respective cases on the basis that no such order was sought. Thus, there was no evidence as to the detail of the husband’s superannuation entitlements. All the Court had before it was the current value, and its value at the commencement of cohabitation. The Court had nothing before it as to the terms and conditions, the options available to the husband, when he could retire, or what his entitlement would be at different retirement ages, or even if that was possible. There was also no evidence of the possible taxation liabilities. I also observe that in her submission the husband’s counsel was not able to provide the detail of the splitting order that she was suggesting.
As the husband’s counsel correctly pointed out, a circumstance where the orders would entail one party having a majority of the non-superannuation assets and the other party having the majority of the superannuation assets is a legitimate issue to be considered when addressing s 79(2) of the Act. However, there still needs to be evidence before the Court to indicate whether that circumstance renders the proposed orders unjust and inequitable. Here, to repeat, there was not a scintilla of evidence before the Court on this topic. I also observe that there had been ample time for the husband to change his position and to seek a splitting order. It was certainly not the case that the prospect of a substantial payment having to be made by the husband only became apparent at the last minute. That prospect was always a possible result, and particularly with the husband wanting to include the wife’s G Street property in the asset pool.
Even at the last minute, the husband’s counsel could have applied for an adjournment to amend the orders sought and to present the necessary evidence in support thereof, and thereby also provide the wife with the opportunity to respond to such a claim, but the husband chose not to make such an application.
In these circumstances not only do I reject the late submission of the husband’s counsel, but also in making my own assessment of whether the proposed orders are just and equitable I note that I have no evidentiary basis to find that they are not such for the reason that the wife will have the majority of the non-superannuation assets and the husband will have the majority of the superannuation assets.
The proposed orders will see the wife keep her house property in G Street, E, her motor vehicle, her shares (including the jointly owned Telstra shares), her interest in D business, her share of the sale proceeds of the items of plant and equipment and her minimal superannuation. She will also receive $233,331 from the husband, but significantly she has a mortgage of $256,000 secured over the title to the G Street property that she has to service as well as a number of other liabilities referred to in these reasons.
I pause to observe that in relation to the agreed position of the parties as to their joint liability for the credit card debts at separation (apart from the husband’s ANZ credit card), no specific order was sought by either party as to how to achieve this result. Accordingly, all I can do is fashion an order strictly in accordance with the agreed position and leave it to the parties to work out.
To continue, the proposed orders will see the husband either retain his property at M with a substantial mortgage or he will have to sell it and use the proceeds to make the payment to the wife of $233,331. He will also retain his shares, his motor vehicle, his sporting memorabilia, his motor bike, his share of the proceeds of sale of the items of plant and equipment and most importantly his substantial superannuation entitlements.
Thus, there will be a difference in the respective financial positions of the parties as a result of the orders. However, it must not be forgotten that I have already taken part of that difference into account in fixing the adjustment resulting from a consideration of the s 75(2) factors, and in any event one party seemingly achieving a better result than the other party does not provide a basis for finding that the orders are neither just nor equitable.
Having dealt as I have with the issue of the husband’s superannuation entitlements there is nothing unjust or inequitable about the orders that I propose.
I certify that the preceding two hundred and thirty seven (237) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland.
Associate:
Date: 26 November 2010
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Remedies
2
1
1