Greco & Costa Greco
[2009] FMCAfam 579
•17 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRECO & COSTA GRECO | [2009] FMCAfam 579 |
| FAMILY LAW – Children – parents’ acrimonious relationship – equal shared parental responsibility – parties to attend post separation parenting course – allegations of violence – parties not seeking conditional orders – equal or substantial and significant time – consideration of parties’ proposals in relation to mutual allegations – children’s views – notion of “parallel parenting”. FAMILY LAW – Property – relatively small pool of assets – comparison of contributions – weight to be given to wife’s superior initial financial contributions – adjustment in favour of wife – no further adjustment after assessment of s.75(2) factors – dispute as to retention of real estate. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79, 90MC |
| H and H (2003) FLC ¶93-168 G and C [2006] FamCA 994 Tait & Densmore [2007] FamCA 1383 Pierce and Pierce (1998) FLC ¶92-844 |
| Applicant: | MR GRECO |
| Respondent: | MS COSTA GRECO |
| File Number: | MLC 9862 of 2008 |
| Judgment of: | McGuire FM |
| Hearing dates: | 16, 17, 18 & 19 March 2009 |
| Date of Last Submission: | 19 March 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 17 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hoult |
| Solicitors for the Applicant: | Lampe Family Lawyers |
| Counsel for the Respondent: | Ms Stoikovska |
| Solicitors for the Respondent: | Berger Kordos |
PARENTING ORDERS
The husband and the wife have equal shared parental responsibility for the children [X] born in 1996, [Y] born in 1998 and [Z] born in 2004 (“the children”).
The children live with each of the husband and the wife on a week-about basis with the changeovers to occur on Fridays at 5.00 pm or otherwise as agreed between the parties from time to time in writing.
In any event the children spend time with the wife from 5.00 pm Christmas eve until 3.00 pm Christmas day in 2009 and in each alternate year thereafter and from 3.00 pm Christmas day until 5.00 pm on 26 December in 2010 and in each alternate year thereafter.
In any event the children spend time with the husband from 5.00 pm Christmas eve until 3.00 pm Christmas day in 2010 and in each alternate year thereafter and from 3.00 pm Christmas day until 5.00 pm on 26 December in 2009 and in each alternate year thereafter.
In any event the children spend time with the husband from 5.00 pm Easter Saturday until 3.00 pm Easter Sunday in 2010 and in each alternate year thereafter and from 3.00 pm Easter Sunday until 5.00 pm Easter Monday in 2011 and in each alternate year thereafter.
In any event the children spend time with the wife from 3.00 pm Easter Sunday until 5.00 pm Easter Monday in 2010 and in each alternate year thereafter and from 5.00 pm Easter Sunday in 2011 and in each alternate year thereafter.
The husband and the wife be and are hereby restrained from denigrating the other to or in the presence of the children.
The husband and the wife each forthwith enrol in and, within five calendar months of the date of these orders, complete a recognised post-separation parenting course and provide the other with
a certificate of completion.
PROPERTY ORDERS
That the wife be solely entitled to the exclusion of the husband to her interest in the property situate at Property B, [D] in Victoria.
That the equity as at the date of these orders in the properties situate at Property V, [H] in Victoria and Property H, [H] in Victoria, and registered in the names of the husband and the wife be divided as to 50% to the husband and 50% to the wife after taking into account the following liabilities in establishing that equity:
(a)ANZ mortgage – Property V;
(b)ANZ mortgage – Property H;
(c)Joint ANZ loan.
That to give effect to order 10 hereof, the husband and the wife forthwith do all such things and sign all such documents necessary to discharge the liabilities referred to in paragraph 10 hereof, obtain necessary releases of liability, and refinance so as to give effect to these orders.
That pursuant to these orders and within 42 days of the date of these orders the husband transfer all his right, title and interest situate at Property V, [H], to the wife absolutely provided that should the wife not be able to retain the said property or elect not to retain the said property within the designated period then the husband shall have the option to retain the property and the wife then transfer all her right, title and interest to the husband absolutely.
That contemporaneously with the transfer referred to in paragraph 12 hereof, the wife transfer all her right, title and interest in the property at Property H, [H], to the husband absolutely provided that should the husband not be able to retain the said property or elect not to retain the said property within the designated period then the wife shall have the option to retain the property and the husband then transfer all his right, title and interest in that property to the wife absolutely.
That should the parties or either of them not retain the properties
or either of them then such property or properties be sold as follows:
(a)by an agent agreed between the parties and failing agreement then by the nominated delegate of the Real Estate Institute of Victoria;
(b)on such terms and conditions of sale, including recommended sale price, as directed by the agent.
That the proceeds of sale be disbursed as follows:
(a)to payment of any relevant mortgage liability;
(b)to reasonable costs and disbursements of the sale;
(c)any balance so as to give effect to these orders generally.
That the wife retain for her own use and benefit the Volvo
motor vehicle provided that should the wife not give notice in writing to the husband’s solicitors within 14 days of the date of these orders
of her intention to retain that vehicle then it be sold by the husband with the proceeds of sale to be distributed as follows:
(a)to any liability attaching to that vehicle;
(b)to payment of any reasonable costs and disbursements of the sale;
(c)the balance, if any, as to 50% to the husband and 50% to the wife.
That each party otherwise retain to the exclusion of the other
all personalty, chattels, bank account balances, and including business assets, in the possession of or under the control of that party as at the date of these orders.
That each party retain to the exclusion of the other their own superannuation policies and entitlements.
That the parties be each responsible for one half of any liability
existing as at the date of these orders in respect of the children’s outstanding school fees.
That each party be solely responsible for and indemnify the other in respect of the following liabilities:
(a)any and all liabilities incurred by that party since separation in either joint names or in that party’s name alone;
(b)any and all liabilities attaching to any of the assets to be retained by that party pursuant to these orders.
AND THE COURT NOTES
A.Pursuant to ss.65DA(2) and 62B 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 Attachment A and these particulars are included in these orders.
AND THE COURT DECLARES
B.That these orders are intended to finally determine the financial relationships between the parties with respect to Part VIII of the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Greco & Costa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9862 of 2008
| MR GRECO |
Applicant
And
| MS COSTA GRECO |
Respondent
REASONS FOR JUDGMENT
Application
In this matter there are issues between the parties in respect of both children and property.
The dispute between these parties has developed at an extraordinary rate since the husband filed his initiating application as recently
as 29 October 2008 in which he sought final and interim orders but only as to property.
The children were joined as the subject of the proceedings when the husband filed an amended application on 18 December 2008. There have since been numerous further interim and interlocutory applications and responses in respect of both children and financial matters. The Court was required to entertain a number of interim applications in respect of the children’s living arrangements and matters of a financial nature including occupation of the former matrimonial home and management of a rental property.
Each of the parties has been represented by various legal practitioners during the short term of the proceedings.
A family report was obtained from Mr Vincent Papaleo, psychologist, at an early date. The contents of that prima facie were of such concern as to the children’s emotional health that the matter was given an early hearing date. The applications proceeded over four days commencing 16 March 2009.
The Court was greatly assisted during the hearing of the applications by both parties being represented by very competent counsel and legal advisors.
Background
The husband was at the time of the hearing 42 years of age. The wife is 43 years old. The husband is in good health. There has been
a suggestion that the wife has been diagnosed as suffering from depression. Her evidence suggests her condition to be more one
of anxiety and stress and related to breakdown of the marriage and the animosity and antagonism that followed. In any event, there is no medical evidence to suggest that the wife is not competent by reason
of her health to care for the children or that she does not have the capacity for employment in her chosen profession as a psychologist.
The wife says that the parties commenced cohabitation in June 1992. The husband says that the relevant date is 1991. Little turns on this discrepancy. The parties married in 1993.
The parties separated in August 2008 but remained living under the same roof, perhaps disastrously for their children, until 19 January 2009 by which time both parties were something of veterans in the Court process. At around this time the wife obtained an interim intervention order from a State court. I am told that the husband does not admit the factual platform of that application as claimed by the wife and will be defending the making of final orders.
There are three children of the marriage. They are [X] born in 1996 (aged 12 years), [Y] born in 1998 (aged 10 years) and [Z] born in 2004 (aged five years).
At the time of the substantive hearing the children were living pursuant to interim orders on a week-about basis with each parent. The wife was living as sole occupant of the former matrimonial home, also pursuant to interim orders. The husband had been living with his
own mother. The wife also had the benefit of the management of
the parties’ rental property albeit conditional upon accounting to the husband for all income and outgoings.
Neither party had, on the evidence, re-partnered at the time of the hearing.
The husband is a self-employed [omitted] being the director of a company known as [A] Pty Ltd. That business operates the fitting out of retail shops and homes.
The wife has qualifications as and, at the time of the hearing, was self-employed on a part time basis as a [omitted].
The husband relied on his trial affidavit filed 2 March 2009. General reference was made to numerous other affidavits filed by him during the interlocutory stages of the proceedings. The husband also adduced evidence from his sister, Ms C, being in respect of children’s matters. Ms C swore an affidavit which was filed 2 March 2009. She was cross-examined.
The wife relied on her trial affidavit filed 11 February 2009.
As mentioned above, the Court had the benefit of a family report prepared by Mr Papaleo. His evidence was expanded upon by him being cross-examined by counsel for both parties.
Parties’ proposals – children
The husband’s proposals were that the parents have equal shared parental responsibility for the three children and that they continue
to live in a week-about regime with each parent. He suggested that changeovers occur on a Friday evening. With the exception
of Christmas Day and Easter Day, the husband did not propose any further adjustment of the general week-about routine. His rationale was his acknowledged volatile and non-communicative relationship with the children’s mother. Despite such a proposal and concession, the husband at all times sought equal responsibility with the wife for the long term decision-making role in respect of the children.
The wife also sought orders for equal shared parental responsibility. This is despite the strong flavour in her evidence of a non-communicative and non-cooperative relationship with her husband. She, however, proposes that the children live primarily with her
on a fortnightly regime of ten nights with her and four with the husband. However, in her final submissions, counsel for the wife conceded that the wife might be equally content with the children spending five nights per fortnight with their father. Whatever the number of nights, the wife’s preference was for the children to spend their time with the husband in one block so as to minimise the number of changeovers for the children. Again, this is perhaps an acknowledgement of the residual animosity between herself and the husband together with an inability for them to communicate.
I dwell at this point to emphasise the nature of the orders sought by the parties which in different terms involve shared care and the necessary inherent concessions by each as to the ability of the other to care
for the children. This is against a background of the evidence, both
on affidavit and in the witness box, which consisted almost entirely
of criticism by each party against the other. One question for the Court is to determine whether or not these parents have the ability
or potential to communicate and cooperate to such a level as is required, and in the children’s interests, for them to discharge joint parental responsibility. In that sense the Court must make a positive order or declaration pursuant to s.61DA of the Family Law Act 1975.
It is a parenting order. Fundamentally there is a presumption. That presumption is rebutted if the evidence suggests that such an order would not be in the children’s best interests or negatived by findings
of violence within the family.
The law – children
The fundamental proposition is that the Court must consider the best interests of the children as the paramount consideration.[1]
[1] Section 60CA of the Family Law Act 1975 (“the Act”).
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). Section 60B of the
Act sets out the objects and principles underlying those objects. Section 60B(1) of the Act sets out the objects of the Part, which are:
…to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are set out in s.60B(2) of the Act. Those principles are that:
…except when it is or would be contrary to a child’s best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court is to apply a presumption[2] that the best interests of children are served by their parents enjoying “equal shared parental responsibility”. In broad terms this involves the parents cooperatively and jointly making decisions relevant to the children’s welfare.
If, however, there are reasonable grounds to believe that a parent of the child, or a person living in that household, has engaged in child abuse or family violence then the presumption does not apply.[3]
[2] Section 61DA of the Act.
[3] Section 61DA(2) of the Act.
Further, the presumption may be rebutted by evidence satisfying
the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for those children.
The Court is assisted in determining what is in a child’s best interests by reference to the considerations set out in s.60CC of the Act.
Those considerations are divided into “primary” and “additional” considerations.
There has been a deal of judicial and academic debate in respect
of the terms “primary” and “additional”. I take the view that I must reference each of the considerations in respect of the relevant evidence and the proposals of the parties. Nevertheless, some weight should
be attached to the term “primary”. They are broad yet fundamental tenets of children’s best interests being, firstly, that children have
a meaningful relationship with both parents and, secondly, that children are protected from physical or psychological harm. The “additional” considerations are made, in my view, with reference to the primary considerations.
If a determination is made that the presumption of equal shared parental responsibility applies and is not rebutted then the Court
is obliged to follow a legislative and intellectual process. Firstly, the Court must consider whether the children’s best interests are served
by them spending equal time with each of the parents.[4] The husband
in this case seeks such an order.
[4] Section 65DAA(1) of the Act.
That determination involves the abovementioned considerations of the children’s best interests as well as a consideration of whether an equal time arrangement is “reasonably practicable”.
If the determination is that a regime of the children spending equal time with the parents is not in their best interests or is not reasonably practicable then the Court must consider whether the children should spend “substantial and significant time” with each of the parents.[5]
This again triggers an examination of the children’s best interests with reference to the matters under s.60CC(2), (3) and (4) of the Act together with an examination of whether such an arrangement
is “reasonably practicable”.
[5] Section 65DAA(2)
The concept of “substantial and significant time” is defined in the Act at s.65DAA(3) as follows:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The orders sought by the wife fit the definition of “substantial and significant time”.
Both questions of “equal time” and “substantial and significant time” involve a determination as to whether such an arrangement
is “reasonably practicable”. Again, the Act gives guidance as set out
in s.65DAA(5) by obliging the Court to have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Prior to the incorporation of s.65DAA into the Act, the courts were
on occasions obliged to consider whether or not children should spend equal time with each of their parents. A very helpful summary of the factors to be considered in such an issue was given by Federal Magistrate Ryan (as she then was) in H and H[6] where Her Honour
[6] (2003) FLC ¶93-168.
at paragraph 47 of that judgment said:
Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child’s welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child’s wishes and the factors that influence those wishes.
·Where siblings live.
·The child’s age.
Her Honour goes on to say at paragraph 48:
This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s 65E nor
s 68F(2).
The most recent amendments to the Act have seen s.68F(2) substantially replaced by s.60CC.
Section 60CC factors
Primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents
This is a “primary” consideration for the Court. It is obvious that,
in most parenting cases, there is an element of balance in respect of
the statutory considerations and as against the proposals of the parties and the nature of the evidence in the particular case. It seems, however, that the two primary considerations go to the very core of
my determination but must be taken into account together with the additional considerations.
As Her Honour Justice Bennett said in the unreported decision
of G and C:[7]
the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
[7] [2006] FamCA 994 at [68].
The making of orders in the term of either party’s proposal would assist in maintaining a meaningful relationship. That is, both parties seek orders that would result in the children spending significant time with each of their parents and thereby benefiting them by the positive parenting traits of both the wife and the husband.
The parties have differing views as to the nature of the relationship
of the children with each of them. This is not unusual in such a bitter and hard-fought case. However, the evidence taken as a whole would suggest that the children have had beneficial relationships with both
of their parents. It is true that the husband has been more engaged
in his employment than has the wife. However, his unchallenged evidence is that he has participated in the raising of the children and,
in particular, in many of their extra-curricular activities.
I am of the view that I need to make orders which assist the continuation of such a meaningful and beneficial relationship for
the children with each of their parents. This is not simply a question
of a quantity of time. Rather it takes into account involvement, presenting as role models, attending to aspects such as discipline,
and giving children the whole spectrum of influences that they could reasonably be expected to glean from responsible parents.
In the unreported decision of Tait & Densmore[8] Cronin J noted at [170] in respect of a meaningful relationship:
…it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.
[8] [2007] FamCA 1383.
Perhaps ironically a meaningful and involved relationship could occur with lesser actual time. This would however require cooperation, collaboration and communication between the parties. Where such traits are not apparent then actual time for children with a parent
may become more important. In this case, there is virtually
no communication and cooperation. Both parties directly, and sadly for them, admit that this is the case. That is, the children would not expect involvement by their father when they are with their mother
or vice versa. Such a serious and unfortunate situation may change
in the future but I am required to deal with the facts as they are presented to me at the time of the trial.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are some allegations, mainly from the wife, that the children may have been subjected to some physical violence at the hands of the husband. In her trial affidavit at paragraph 12 the wife says this:
On the morning of 25 December 2007, the children were arguing amongst themselves in the kitchen. The Husband came into the room and lost his temper. The Husband pushed [Y] into the corner door jam, banging [Y]’s forehead against the door jam. I walked into the kitchen and saw [Y] crying. He was holding his head. I saw a large bruise on [Y]’s forehead. The Husband blamed [Y] then returned to his studio to work. In May 2008, [X] answered back to his Father. The Husband flew into a rage and ran into [X] bedroom, grabbed [X], threw [X] onto the bed, held [X] down on the bed and began screaming at [X]. [X] became hysterical. [X] tried to get off the bed and away from his Father.
And at paragraph 23 of the same affidavit the wife deposes:
On 13 December 2008 at approximately 8.50am, I left the children with the Husband as the Husband had elected to spend the day with the children. At 11.30am, I received a telephone call from [X] on my mobile. [X] was crying and sounded very upset and distressed. [X] told me that he had an argument with his Father, they had punched each other and the Husband had pulled his hair.
The Court file does not disclose that the wife has filed a Form 4 Notice of Child Abuse or Family Violence. I note that the application
of the wife, and the final submissions of her counsel, do not seek the children’s time with the husband to be subject to any conditions
or injunctive orders. I note that the orders that the wife seeks would see the children spending block times of either four or five days and nights with the husband. I find it difficult to reconcile the wife seeking such orders with the general tenor of her affidavit material
and evidence and, in particular, the prima facie serious allegations
of violence made by the wife against the husband. I can only assume therefore that at the time of the hearing the wife was satisfied that the children would be safe in the husband’s care for periods of up to five consecutive days.
The relationship between the parents themselves is characterised by tension, mutual allegation and mistrust. The children have become involved in their parents’ poor relationship. They have become messengers. They are obviously fully aware of the proceedings. They have been the beneficiaries of their parents’ denigrating comments about each other. They have apparently even been involved in acting as an agent for one parent to record conversations of the other. Mr Papaleo in his report and his evidence emphasises the danger
to the children’s health of such an involvement. The Court in such circumstances does not need the expertise of Mr Papaleo to reach similar conclusions. It should be a matter of common sense.
I must make orders, so far as I can, that protect the children from being drawn into their parents’ dispute and poor relationship. I must make orders, where necessary, which restrain the parents from involving the children and using them for purposes which can only lead to stress, anxiety and perhaps long term emotional damage for these children. The facts in this case necessitate the making of injunctive orders
to protect them from such behaviour by their parents which Mr Papaleo correctly categorises as psychologically abusive.
Additional considerations
Section 60CC(3)(a) – any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views
[Z] has just turned five years old. One can only hope that by reason of her relative youth she has been saved the full brunt of the manifestation of the deterioration of her parents’ marriage and the behaviour that has ensued.
[X] and [Y], however, are 12 and 10 years of age respectively. They must necessarily have an understanding of the events of the past few months in which, of course, they have become heavily involved at the behest of both parents.
The affidavits of both parents make interesting reading, as does the hearing of their evidence in Court. Both are silent, or at the very least, scant as to statements in respect of their children’s views in respect
of their living arrangements. This is so even though at 12 and 10 years of age the boys might reasonably be expected to be canvassed as to their views and be expressing some views. Perhaps, however, on reflection this is a result of the parents’ almost obsessive preoccupation with criticism and blame of each other to the exclusion of the better interests of their children. This was abundantly evident in the contents of Mr Papaleo’s report.
Nevertheless, the children do express views. Those views are enlightening in the extreme. Those views go much wider than their actual living arrangements.
The oldest child [X] might be seen as being aligned with the wife. There is a suggestion that he has even been employed as an evidence-gatherer for the wife in tape recording his father’s conversations. However, Mr Papaleo’s report gives a more disturbing insight into
the views of this still young boy.
[X] was able to articulate in a mature and perceptive way his own views. On page 12 of his report Mr Papaleo says of [X]:
[X] recognized that both of his parents are coping poorly, that both seemed overwhelmed and consumed by their own anger and grief, but that this is no reason or excuse for why they should say the negative things that they do about each other. In his own words he explained “…I can see how really unhappy they are but I don’t want to hear them say bad things about each other. They’re really doing this a lot at the moment. It really affects me”.
Further on page 13 of the same report Mr Papaleo notes:
What worries him [[X]] the most however is “…what they say to me about each other and about what has happened. If they didn’t say anything or talk about it to us it would be so much better because we wouldn’t have to worry about all this stuff and what was going to happen next”.
[Y] is the second oldest child. He is 10 years of age. He also could reasonably be expected to have some opinion as to his future living circumstances. However, like his older brother, [Y]’s views as elicited by Mr Papaleo concentrate exclusively on him being “embroiled” in the proceedings by his parents. An astute comment is made by Mr Papaleo on page 14 of his report in respect of [Y] when he states:
He described it as that he has to choose between his parents, with the inevitable conclusion drawn by him being, that if he believes one parent then the other “must be lying.” [Y] finds himself in the invidious position of having to decide on “the truth” and which parent to believe, making him of course extraordinarily vulnerable to not only further embroilment in the dispute, but to him telling different things to each of his parents in an attempt to align himself with them separately.
[Z]’s views were quite properly not canvassed by Mr Papaleo given her age. Hopefully she may have been spared the direct involvement in her parents’ bitter dispute as experienced by her brothers.
The conclusion I come to in respect of the children’s views as to where they might live is that there is no real evidence that they express
any preference. They do, however, quite obviously articulate a strong view against their continued involvement in what can only be seen
as their parents’ naïve and selfish public and destructive ongoing conflict. The fact that such a dispute has continued and even escalated over the past months and in the face of the children exhibiting negative behavioural and emotional responses, does their parents no credit at all.
Section 60CC(3)(b) – the nature of the relationship of the children with each of the children’s parents and other relevant persons
[X]’s relationship with the husband since separation has been problematical. The husband says that this has been as a result of the wife involving [X] directly in the parents’ dispute. He says that there has been transparent manipulation of the children by the wife. He says that [X] has been a conduit for information to the wife. The husband admits that [X] has then reacted to him in a negative manner. There was corroborating evidence from Mr Papaleo.
Mr Greco’s comments to Mr Papaleo are reported at page six of the family report:
He explained that the children, when with him, relate normally and well, but if ever in the presence of their mother, that their behaviour changes completely. [X] in particular has become very negative and hostile, acting like a spy in the enemy camp, fighting his mother’s battles, and the children being exposed to their mother’s tirades and demands regarding financial and property settlement which have shaped their views in a manner that they are simply unable to comprehend.
And at page eight of the family report Mr Papaleo sets out his observations of [X] during the interview procedure:
[X] however very actively resisted his father and his father’s efforts to engage with him. He was detached and excluded himself from the play, resisted his father’s invitations to join them, and spoke very negatively not only about his father to his siblings but was very negative about the things that his father was doing with his siblings. He was critical of the games that they were playing, accused his father of cheating, he was humming loudly and being very distracting and trying to be distracting of his brother and sister to no avail. He made it fully known that he was there under sufferance and that his intention was to cause as much disruption as was possible.
It must be remembered that the interviews for this report were held
as recently as 3 February 2009. It is clear from Mr Papaleo’s comments that [X] showed a total alignment to his mother and that there were serious difficulties in the nature of the relationship between [X] and the husband.
Nevertheless, and only a matter of weeks later, Mr Greco in his evidence in Court painted a completely different picture of his relationship with [X]. In cross-examination he was asked about
Mr Papaleo’s observations as set out above and hence why he should seek a week-about equal sharing of the care of the children. Mr Greco’s response was that he sought such orders because “[X] tells me that this is what he wants”. He elaborated by saying that [X] is no longer as tense and that his demeanour has changed substantially since the husband had moved out of the former matrimonial home. He emphasised that [X] himself wanted a week on/week off arrangement. There was then a reference by Mr Greco to [X] thinking that such an arrangement was “fair”. The husband then suggested that [X]’s behaviour towards him in the interview and in the later part of 2008 was “out of character and it should be noted that [X] had been with the mother that week”.
Of course, the husband’s evidence could be seen as self serving and opportunistic. Unfortunately there had been no opportunity for,
or indeed request for, an update by Mr Papaleo as to the children’s views. It is true, however, in his trial affidavit sworn 2 March 2009
at paragraph 17 Mr Greco says of [X]:
[X]’s personality changed to being rather hostile to me after the separation but since around the time of the Court hearing on the 13th February 2009 he has reverted to his loving and very affectionate manner towards me.
Ms C at paragraph 11 of her affidavit sworn 2 March 2009 says this:
Fortunately since about the time of the last Court hearing on the 13th February 2009 [X] has reverted to his former self and shows Mr Greco love and affection. I observed this on Sunday 22 February when visiting Mr Greco and all three children at my mother’s house. [X] was happy, chatting and very relaxed. He asked Mr Greco’s advice on how to play a video game, sat on
Mr Greco’s lap and put his arms around his shoulders. I heard [X] tell Mr Greco that he really loved being there with him.
If such evidence is to be accepted then this is both a positive but somewhat surprising change so quickly in [X]’s attitude towards his father. I note again, however, that the wife seeks an order that [X], together with his siblings, spend block periods of up to five days at a time with their father. It would be difficult to understand how a responsible mother, being aware of the nature of [X]’ relationship with his father as set out in the family report and her own affidavits, could seek such orders. Again, therefore, I am obliged to infer that the wife herself accepts the positive changes in [X]’ relationship with his father.
Mr Papaleo, however, was cross-examined specifically in respect of this point and the husband’s claims that [X] and he have resumed their previously good and close relationship. Mr Papaleo’s answer was interesting. He responded that the husband’s evidence in respect of [X] was “more a likelihood given my overall comments in my report in respect of [X]”. I assume therefore that Mr Papaleo was of a similar view to the husband that [X]’ behaviour at the time of the interviews was out of character or as a result of his parents living under the one roof and he being forced to align with one or the other.
The husband was not seriously or successfully challenged as to this part of his evidence. Mr Papaleo acknowledged a “likelihood” of a change in [X]’ attitude. Ms C was not challenged as to this part of her evidence. Certainly, the stressors for [X] of his parents being under the one roof had been removed for him. The husband’s unchallenged evidence is of a historically good relationship with his son. The wife’s proposal for the children’s living arrangements implies such a historically good relationship.
It may be that [X] as the older child has had more of an understanding of the unsavoury happenings in his home following separation than do his younger siblings. His belief in having to align with one or other of the parties may have been more pronounced. Certainly, the observations of Mr Papaleo in respect of the other children at the interviews says much generally as to the nature of the relationship of the husband with his children. At page seven of his report Mr Papaleo says:
Despite the extent of my concerns regarding both parents,
Mr Greco described a good relationship with his children. This was certainly evident in my observations of him with the children, and [Z] and [Y] engaged with their father effortlessly and enthusiastically. Both physically ran to him, leapt into his arms and embraced him warmly and confidently. They were particularly physically attentive and affectionate, initiating much in the way of hugging, touching, kissing and were very warm and responsive to their father and his interaction with them.
The nature of the children’s relationship with their parents has inevitably changed, at least in the short term, due to the separation
of their parents. In this particular case any difficulties have been accentuated by the parents involving the children in the dispute.
The children have witnessed direct denigration of each parent by the other. They have been encouraged to align with one side or the other. The husband himself, and to his credit, admitted in the witness box that he had been guilty of improper comments to the children in respect
of their mother. The evidence suggests that both parties have been similarly guilty.
The husband in his affidavit sets out in considerable detail and particularisation his involvement in the children’s lives. Again, he was not substantially challenged in respect of this evidence.
I conclude on the evidence as a whole that the children have strong and beneficial relationships with both of their parents albeit of a slightly different nature. The wife and the children view the wife as the “regular presence”. This is often described as the “primary parent”.
It may however only be a temporal term. Mr Papaleo refers to this
in his report in respect of [Y] at page 14 when he says:
This is even more so the case given that fundamentally he trusts his parents and relied upon them equally, even though he very obviously perceives his mother as his primary carer and the person upon whom he is generally the most reliant upon for the maintenance of normal routine and structure in his life.
Although all three children do have a close and bonded relationship with both of their parents, those relationships have been tested in the last few months. The pressures put on these young children have been both unfair and unreasonable. The unhappy conclusion is that both parents, who would normally be considered as being intelligent and altruistic parents, seem to have been oblivious to the quite obvious emotional damage caused to their children. The fact that those relationships have survived at all may attest to the fundamentally strong and bonded relationship that the children had previously developed with each parent.
Section 60CC(3)(c) – the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
There has been a complete breakdown of trust and communication between the parties. Their personal dispute has escalated far beyond being able to objectively discuss their children’s needs and interests. There is no sense whatsoever of cooperative parenting between them. Against such a factual background it is difficult for the Court
to be confident that either parent will facilitate and encourage the children’s relationship with the other.
There is however some glimmer of hope. The parties initially separated under the one roof with an acknowledged aim for cooperative parenting of their children. Whilst perhaps naïve, it does show at least an admirable aim on their part initially.
Further, there was some evidence at the trial which gave some cause for optimism. Firstly, the husband acknowledged that he had been guilty of some improper and denigrating statements to the children in respect of their mother. The fact of such an acknowledgement is important. Mr Greco was quick to add “it does not happen now”. If I accept what he says, and I do, then it sits well with his evidence as to the change and calming of [X]’ attitude towards his father.
In addition the husband was asked during cross-examination about the wife’s parental role during the marriage. His response was spontaneous. He said:
I consider that she is an amazing mother, so focused and dedicated to the kids.
Conversely it was put to the wife in cross-examination that the children
in fact have a good relationship with their father. Her answer was admirably candid if not a little surprising given the tenor of the rest
of her evidence. Her immediate response was “yes, they love him”. Then and for the only time at the hearing the wife became visibly upset. I see this as a positive and as indication of the wife being able
to differentiate her own feelings from the objective needs of her children.
The fact that the comments in the family report and the material in the parties’ trial affidavits is completely devoid of positive statements
by one against the other, is hopefully tempered by these apparently spontaneous responses given by the parties during their evidence
at Court.
At the risk of repetition, the very fact that each of the parties seeks orders which give the other substantial time with the children in itself evidences their willingness to facilitate a relationship for the children with the other parent. The importance for the children is that they see and know that their parents “encourage” that relationship.
These children must come to understand that they can be comfortable and relaxed in their relationships with each parent without fearing ramification from the other.
The recent reality for these children is unfortunately of no facilitation or encouragement by either of their parents of the other. Each has jealously guarded his or her time with the children. This has become the object rather than the children’s needs or wishes. There has been profound dispute over relatively simple issues such as school uniforms and theatre tickets. There has been no semblance of flexibility.
An appearance by one parent during “the time” for the children with the other is met with mistrust and criticism. The open denigration
of each parent of the other to the children is completely contrary to any idea of “encouragement and facilitation”. As Mr Papaleo says of the situation at the time of the report at page 17:
The reality is that regardless of how this matter is now perceived, Mr & Mrs Greco are not sharing the care of their children at all, but rather they are splitting and dividing the time, the children are living very separate lives, there is no cohesion or communication, no fluid cooperation and nothing approximating the presumptions attached to shared care.
Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either parent
The effect on these children has not been because of separation from their parents. Rather, the effect has emanated directly from the fact that these feuding parents were living under the same roof. There will inevitably be a separation from their parents by reason of the orders sought by the parties.
The parents’ emotional separation did not immediately result in their physical separation. The parties and the children continued to live
in the same household. The lack of physical separation has contributed to the problems for all concerned. The proposals of the parties are such that there will not be lengthy periods of separation for the children from either parent. The fact of the separation may shield the children from their parents’ conflict.
Section 60CC(3)(e) – the practical difficulty and expense of the children spending time with and communicating with each parent
This is not a relevant consideration in this matter.
Section 60CC(3)(f) – the capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs
The wife argues that the husband’s work and travel commitments preclude him from his proposed equal shared care regime.
The evidence suggests that the wife has been the more available parent. The husband did however work more recently from a home office making him available for the children in after school hours and presumably for time with [Z] before she attended school. However, the nature of his work did involve regular interstate and international travel.
The husband does appear on the evidence to have considered
the employment of a housekeeper or child carer. There is no evidence that this has happened. He currently lives with his own mother
but anticipates living independently with the children following these proceedings and, more particularly, settlement of the financial matters.
The husband’s evidence was of a close, supporting and available extended family. The husband’s sister, Ms C, gave evidence corroborative of this fact.
The husband was cross-examined extensively about his availability for the children should the Court favour his proposal of a week-about arrangement. He is of course self employed which gives him some flexibility. His business does engage employees and he claims at least one is at a level so as to take on the responsibility of interstate commitments. The husband suggested during cross-examination he would even change his occupation to being an employee if this would assist him in obtaining orders for equal or substantial and significant care of the children. I do not, however, accept this as a rational or honest response by him and put it down to one made opportunistically and spontaneously, without the benefit of proper consideration.
It must be remembered that, in any event, the wife’s proposal for the children is that they spend blocks of four or five nights with the husband. She, understandably given the evidence, does not propose any flexibility in this regime. Realistically therefore any organisational difficulties for the husband would be similar whether he had the children in blocks of five or seven nights per fortnight. A more practical viewpoint might be to say that his self-employment would allow him to organise his commitments around the time the children are with the wife.
In any event, it is common that parents at times enlist the assistance
of responsible family members to assist with the care of the children. This happens whether the parents are happily married or separated.
It would not normally be seen as something contrary to children’s best interests unless, of course, such delegation becomes habitual.
The wife seeks orders whereby the children live with her for the majority of the time being either ten or nine nights per fortnight.
Her concerns as to the husband’s availability must also be seen in the light of her own evidence. That is, the wife is also self-employed. Previously, this status has allowed her some flexibility as to
be essentially available for the children in out of school hours albeit
on the evidence with her carrying out some work at home at night and thereby having the assistance and availability of the husband to care
for the children. However, her evidence in Court in respect of financial matters is that she may intend to substantially increase her work commitments and hours and hence her income. This will inevitably mean that she will be working both during and out of school hours and perhaps then herself be required to enlist some assistance. This is not
a criticism of the wife. It is simply a fact of life and probably will
be applicable to both parents.
I am of the view that either of the proposals of the parties for a care regime of the children would ordinarily require a high degree
of communication and cooperation as anticipated by her Honour
in H and H (supra) and the definition of “reasonable practicality
in s.65DAA(5) of the Act. Many of the same requirements are relevant to the children being with a parent for seven days or four days.
A similar capacity is required. The same facilities are required.
The same level of responsibility is required to be discharged.
Both proposals involve weekends and work or school days.
The emphasis is not on the number of days but on what regime would ultimately be in the children’s best interests taking into account
all of the relevant considerations.
The children have been living in a formal equal shared care regime since the orders of 23 December 2008 and for practical purposes
since separation under the same roof in August 2008. Interestingly there is no criticism by either party of the other as to the standard
of care afforded the children on a day to day basis. In any event, each party by implication concedes the capacity of the other to care for the children on a physical, emotional and intellectual sense. The husband cannot argue otherwise if he proposes the children spend up to seven consecutive days with the wife. Similarly, she proposes up to five days with the husband.
I find that both parties have the capacity to care for the children
in respect of their own and the children’s commitments.
The wife’s other major argument as to capacity is on the basis
of routine for the children. Mr Papaleo reports at page 10:
She told me that the children are happy with her, that they want to be at their home, that they do not want to live with either their paternal grandmother or other members of Mr Greco’s family, and that they should be allowed their normal routines and networks rather than being disconnected from their normal supports. Mrs Greco is trying to keep things as normal as possible for the children, and to provide to them their normal structure and routine…
Such a statement is, of course, undoubtedly a reference to the children wanting normality and routine and their familiar environment.
This is understandable in any family breakdown. I do not see such preferences as referable to a particular parent or other person
but to their familiar environment. It is perhaps more understandable
in this matter where the children’s views as to their involvement
in their parents’ disputes are pronounced. However, for these children their preferred or familiar routine is effectively destroyed. No longer
do they have both parents in the one home. They will inevitably spend time with each parent separately and in different residences.
A new routine will need to be established.
The vexed question as to “capacity” is not in respect of either party’s ability to care for the children. Rather it is for the parents themselves to cooperate in the care of their children. The orders each seeks presupposes in practice and by legislative definition that they
can do so. Yet, they have not shown any semblance of ability in this area in the recent past. Mr Papaleo described them in his evidence from the witness box as:
entering into and continuing a personal and unrelenting attack on each other.
My observations of the material before me must lead me to the same conclusion. So how then do these parents have the capacity to parent as required by the legislation?
Mr Papaleo provides an option that may be a solution for this family.
It is certainly not an ideal option but the one that may ultimately
be the only way that these children can have a peaceful relationship with both of their parents. He introduces the notion of “parallel parenting” as distinct from “shared parenting”. As I have said, the latter connotes cooperation, collaboration and communication.
The former is a completely different creature. It specifically implies the exclusion of unnecessary communication or even cooperation.
It acknowledges an inability to communicate and cooperate.
Mr Papaleo says that, despite the current configuration of a week-about arrangement, Mr and Mrs Greco do not share the care of their children. They live separate lives. They split and divide the care of the children rather than sharing it. Their decision-making is unilateral and structured rather than mutual and flexible.
Mr Papaleo in his evidence elaborated on this concept by saying that:
it is not a division of time that is important for children but the way the parents act.
I respectfully agree. He then continued by stating that there could
be parallel parenting whatever the division of the days or times.
The important point is that “sharing is not the same as splitting”.
Mr Papaleo notes some obvious negatives to the concept of parallel parenting. The children might grow up with perpetuated negative views of each parent from the other. The same result is likely whatever the configuration of time. The concept itself does not perhaps encourage future cooperation and communication or an improvement in these skills. However, as Mr Papaleo says it does allow the children to have a meaningful relationship with each parent albeit within the confines of that parent’s environment at any one time and absent any influence or interference of the other parent. This is, of course, not ideal. Children of separated parents should be able to see and have their parents together making important decisions in their lives and providing a “joint front” as role models for their children. Unhappily in many situations the parents themselves are unable to carry out such a role. Parallel parenting then gives something akin to the children living in a “sole parent” household albeit in two different households. Such an arrangement may protect the children from unnecessary exposure to their parents’ antagonism to each other.
The point that Mr Papaleo raises is that in some circumstances parallel parenting can be a viable option if it is to give the children both
a peaceful and meaningful relationship with each of their parents.
Section 60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
I have already said much about the attitude of the parents in this case. Their attacks on each other have been continuing and caustic.
They have displayed selfishness by involving the children in their disputes. In many ways they have been oblivious or uncaring as to the effects on their children. Ironically both lay claim to being good parents yet act in these destructive ways.
Both have displayed a high degree of rigidity in their views and
an uncompromising nature. There was evidence before the Court
of email communication by the wife to the husband that could be seen
as an attempt at communication and flexibility. His responses were dismissive. Similarly the wife’s attitude might be best summed up
in her quote to Mr Papaleo at page 10 of his report:
…I would prefer for them to be in foster care than to be fulltime with their father.
Section 60CC(3)(j) – any family violence involving the children or a member of the children’s family
Reference has been made above under the heading “Section 60CC(2)(b)” in respect of this matter.
As at the date of the hearing the wife had the benefit of a State Court intervention order against the husband. He is contesting the making
of final orders. He does not admit the factual basis to the application.
I should emphasise, however, that I can have little regard to such allegations when little or nothing was made of them at the hearing
by way of testing in cross-examination. This comment is applicable
to both parties. Perhaps more surprising is how such prima facie serious allegations can be made when the parties themselves propose circumstances where the children live unconditionally with each of the parents for lengthy blocks of time.
Conclusion – children
The parties in this matter were clearly once a cooperative
and beneficial joint parenting team for their children. The fact that
two intelligent and good parents can degenerate so quickly to such
low levels is almost unfathomable. They are both professionally successful and articulate individuals with much to offer their children.
The sadness is not just the demise of their own relationship but that
it has manifested so obviously on the emotional health of their children.
The children’s views in this case are illuminating. They do not in the sense that is common for children of their ages choose where they would like to live. Their focus is on their parents desisting from
the behaviour which has so much affected them. In this sense
the children appear to have an objective understanding lacking in both
of their parents.
I find that these children have historically had and continue to have
a good and loving relationship with both parents. This is despite
the difficulties they have been subjected to. The fact that their relationships have survived such turmoil is perhaps a reference to what good and beneficial parents Mr and Mrs Greco have been before separation.
The ambit of dispute in a time sense between the parties is very limited. The fact that the wife seeks more days for the children with her than with the husband may well be a factor of the continuing competitive relationship between the parties. The wife however suggests that the orders she seeks and hence the best interests of the children are served by her greater capacity to care for the children
and their desire for routine and order in their lives. The reality is that
the requirements and responsibilities are fundamentally the same whether a parent has children for four, five or seven days in a block. The task for the parents is to understand that much more than a division of time is required for the successful parenting of children and
to establish and maintain a successful relationship with them.
Whilst the parties engage in much mutual criticism, it is interesting that they do not criticise each other in respect of the day to day care of the children in the crucial period since separation when the children have, in fact, been living in a week-about arrangement from late December.
The children’s previous routine has necessarily been taken away
from them. They will establish new routines in their lives regardless
of the configuration of time with each parent. It is probable that the husband will continue to travel for work purposes. His responsibility will be to care for the children when they are with him and regardless of whether that is for four nights per fortnight or seven nights
per fortnight. It is likely that the wife’s work commitments will also require her to enlist assistance at times for care of the children.
There is no recent evidence of cooperation or communication between the parents. There is little evidence to suggest early capacity
for improvement in these regards. Yet, again, each parent seeks orders for equal shared parental responsibility. The hope of the Court is that these obviously intelligent and gifted parents can exercise and discharge these responsibilities. After some consideration I intend
to make an order for equal shared parental responsibility but with the reservations as set out above.
The Court gleans no confidence from Mr Papaleo’s evidence that
the parties that they will be able to communicate and cooperate on a day to day basis in the foreseeable future. The evidence is of entrenched views and acrimony. Consequently, there is some merit
to Mr Papaleo’s concept of “parallel parenting” as opposed to the more desirable “shared parenting”.
I propose to order that the parents attend a post-separation parenting course. I do so if only to remind them of the fact that they must
have previously been successful in discharging their duties as parents and cooperatively in doing so. Their children are a credit to them. They have been able to endure uncommon and unnecessary difficulties whilst retaining relationships with both parents. The reflection required by a post-separation parenting course may assist the parties to at least reach a future level of some basic communication and cooperation.
In the meantime, however, it is clear that the opportunities for these parents to continue their public conflict should be avoided. I therefore favour the block periods of time without reference to special days
as proposed by the husband and supported by Mr Papaleo. This is not
to be seen to be discouraging of communication and cooperation. Indeed, there will be included an order that the children spend time with each other parent “as agreed between the parties” which
is a concept which necessarily involves communication.
At its simplest, the dispute is a discrete one. Should the children spend four (or five) or seven nights out of each 14 with their father?
Much of the supporting material and the evidence is unhelpful given the limited ambit of dispute.
The wife’s own argument proposes “significant and substantial” times with the husband. Her rationale for limiting this to something less than equal time is most strongly put on the bases of routine for the children and the husband’s work commitments. I find that he does have the capacity to provide care for the children. It is true that the wife also relied in part on the husband’s poor relationship with [X]. I accept the evidence of the husband in this regard as to the improvement in that relationship. I note and accept the comments of Mr Papaleo to the effect that it would not be surprising if that relationship had been improved or restored following the actual physical separation of the parties.
I must make orders which consider I consider are least likely to lead these parties back to litigation. I am mindful of the competitive nature of their relationship and dispute. This, however, is not a basis
for making children’s orders. I must make orders which are ultimately
in the children’s best interests. This is obviously a balancing process. On balance I am of the view that the children’s best interests are served by spending equal time with each of their parents on a week-about basis and I propose to order accordingly. Geographically this
is a workable solution. The children’s schooling will not be affected
if this means that, at least in the short term, the parents exercise
their responsibilities independently of the other then this may
be an unfortunate necessity. This is the status quo albeit one of limited duration but one that appears to have operated successfully.
I find that the children have meaningful and beneficial relationships with each of their parents and an order for equal time with each parent will maintain those relationships.
The law – property
Proceedings for distribution of property are provided for in s.79 of the Act.
Section 79 of the Act requires the Court to consider the whole of the property of the parties, however and whenever acquired, the relevant time for determining the pool of property is the date of the hearing.
The long established approach for determination of property orders involves four steps. They are in summary:
a)The identification and valuation of the property of the parties including assets, liabilities, financial resources, and superannuation interests;
b)
An evaluation and assessment of the parties’ contributions having regard to s.79(4)(a), (b) and (c) of the Act. Contributions include those of financial and non-financial type. They include direct
or indirect contributions made by or on behalf of a party
to the acquisition, conservation or improvement of any of the property of the parties. Contributions include those made by
the parties to the general welfare of the family including in the capacities of homemaker and parent.
c)
To consider whether it would be appropriate to make any adjustment to the assessment after evaluation of the contributions having regard to the relevant matters under s.79(d), (e), (f) and (g), including those matters referred to in s.75(2) of the Act.
Such considerations include:
(a)the age and state of health of each of the parties;
(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;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary
to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty
to maintain;
(e)the responsibilities of either party to support any other person;
(f)subject to subsection (3), the eligibility of either party for
a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party
to undertake a course of education or training or to establish himself or herself in a business or otherwise
to obtain an adequate income;
…
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party’s role as a parent;
(m)if either party is cohabiting with another person–the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party;
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account…
d)
The fourth and final step is that pursuant to s.79(2) the Court
is required to ensure that any proposed orders are “just and equitable” in all the circumstances.
The Courts are required to treat the superannuation policies and entitlements of the parties as property for the purposes of these proceedings.[9]
[9] Section 90MC of the Act.
The property pool
This matter is characterised by items of real property with significant gross value but also by a relatively small net asset pool.
The parties have essentially agreed the asset pool and importantly agreed to leave out of the pool a number of items, such as smaller bank accounts and motor vehicles with minimal equity.
Whilst the parties have fundamentally agreed the pool of property as
it exists at the date of the hearing, the wife, however, argues that there should be “add-backs” to that pool.
The agreed assets available for distribution and their agreed valuations are:
Property V, [H] $1,340,000.00 Property H, [H] $986,000.00 Property B, [D]
(wife’s 1/5 interest)$100,000.00 Total $2,426,000.00
The liabilities of the parties are as follows:
ANZ mortgage (secured by Property V) $499,546.00 ANZ mortgage (secured by Property H) $1,105,058.00 Joint ANZ loan $491,139.00 Mortgage (secured by Property B) $3,700.00 Total $2,099,443.00
The net tangible assets of the parties therefore total $326,577.00.
The parties have agreed superannuation entitlements of:
MLC Superannuation – wife $22,169.00 MLC Superannuation – husband $35,761.00 Total $57,930.00
The total net property pool inclusive of superannuation is $384,507.00.
The husband’s counsel in opening submissions put that “the Court should not be troubled by cars and leases”. There is a Volvo motor vehicle in the possession of the wife but which was subject to interim applications and argument. I accept the husband’s position in respect of motor vehicles generally. I do not include that vehicle or its liability in the pool of assets for consideration. The equity, in any event,
is minimal, if any. There remains, however, a dispute as to whether
or not the wife should have the option of retaining that vehicle.
During the hearing the husband disclosed a further liability being unpaid school fees in a sum of $11,500.00. No documentary evidence was produced. However the husband was not challenged as to this contention and I therefore accept his evidence in this regard.
Issues of add-backs to the property pool
There was dispute between the parties as to how the Court should deal with monies removed from the parties’ ANZ Home Equity account
by the husband. The implication is that such money should be added back to the pool of assets and be seen as having been retained by the husband.
Firstly, the wife argued that the husband had removed a sum
of $30,000.00 from the ANZ Home Equity account and transferred this to his business account. In her trial affidavit at paragraph 70 the wife says
In January 2008, the Husband removed the sum of $30,000 from out joint Home Equity Account Manager and transferred this amount to his business account. I do not know why the Husband withdrew this amount, or what he expended it out. The Husband did not consult me about this withdrawal or seek my permission.
The husband gave evidence to the Court about this transaction.
He agreed that the withdrawal had been made. He said that it went
to a debt of the husband dating back to 1995 when he had been successfully sued in a civil matter. He expanded that the judgment debt was originally $60,000.00 and that this $30,000.00 was for the final instalment payment. Importantly, he emphasised that the wife knew
of the debt and its requirement to be paid. The husband during cross-examination produced a document evidencing the judgment debt.
I accept the husband’s evidence in this regard. I note that the withdrawal and payment of the judgment debt occurred in January 2008. The parties did not separate until August 2008. The failure
of the husband to communicate the transaction to the wife is perhaps symptomatic of the lack of communication in their relationship generally. Despite the contents of her affidavit, the wife in her evidence properly and candidly acknowledged her prior knowledge
of the judgment debt. I do not intend to add back the sum
of $30,000.00 to the asset pool.
There are further alleged withdrawals by the husband from
the ANZ Home Equity account which are more complex and dubious
in nature and time. The wife next alleges that the husband transferred
a sum of $10,000.00 from the Home Equity account to his business account on 9 August 2008 and a further sum of $41,000.00 on
9 September 2008. Again, the wife seeks that I should add back these amounts to the pool and allocate them to the husband.
The husband’s response was given in his evidence-in-chief in that these monies were indeed withdrawn by him. He says that they were paid back to his business account. He says that this occurred within
the terms of a loan agreement between the business on the one part which is in fact a company known as [A] Pty Ltd, and he and the wife on the other part. The company loaned the husband and the wife sums of money in about April 2008. The husband produced a loan agreement dated 29 April 2008. The husband says that the loan was made at a time when the parties’ mortgage account was in need of an injection of cash. He says that the repayments were made at a time when the company’s accounts needed cash funds.
Interestingly the husband has signed the loan agreement as a director
of the company and as the borrower. His sister is the witness to both signatures. There is no doubt that the company is the alter-ego of the husband. The “arm’s length” nature of the agreement is questionable. I was not provided with the original document and cannot comment
as to whether that document is stamped and enforceable. However, the “loan” was clearly made and not seriously disputed by the wife.
This occurred some four months before separation.
It is equally clear that the monies were repaid to [A] Pty Ltd as evidenced by bank statements produced by the husband and tendered in evidence. The fact of the wife not being aware of these latter transactions again would not be unusual during this particular marriage. The timing of the withdrawals from the mortgage account and repayments to the husband’s business account occurred around the time of separation. Clearly the company is itself a legal entity. On the evidence as a whole I do not find that the husband has acted improperly. From the company’s perspective it would be prudent for the loan to be “called-in”. I do not intend to add these monies back to the pool of assets.
Nevertheless, and accepting that the transactions took place and that [A] Pty Ltd is the alter ego of the husband and the umbrella under which he operates his business, I must determine whether the monies repaid should still be brought to account in this property settlement and regardless of which bank account they sit in. Unfortunately, I was not provided with evidence as to the current balance of the bank accounts of [A] Pty Ltd. There was no value attributed to the business. This is not surprising seeing that it is quite clearly a company established only to operate the husband’s business. It would be expected that its assets would be of limited value.
The best evidence I have from the material before me is the husband’s financial statement filed in October 2008. In that document he deposes that the balance of monies in the [A] Pty Ltd account at that stage was $14,000.00. This evidence was unchallenged. The husband did not file an updated financial statement. No evidence was led as to the current balance of that bank account. I was told however that the business is a dynamic one in that the balances of the accounts vary. Importantly, I learned during the trial that the wife allegedly operated her own bank account for a period and into which her income from her psychology practice was deposited. The wife deposes in her financial statement filed 20 February 2009 that this account as a balance
of $2,790.00. She held another account with a balance of $5,052.00.
Perhaps more significantly is husband’s evidence, not contradicted, that the bank account of [A] Pty Ltd was used for payment of shortfalls on the mortgage commitments after receipt of rentals. It was also used for payment of some school fees. It then eventuated that the living and some business expenses of both parties, and their businesses, were paid at least in part from the husband’s American Express account. That account was in turn paid from the [A] Pty Ltd account.
Taking into consideration all of these matters I am not satisfied that there is evidence which would lead me to find that the monies admittedly withdrawn by the husband in late 2008 from the parties’ home mortgage account should be added back to the pool of assets. Rather, it is clear that the husband’s business account has operated
as a “working account” for the parties’ living and working expenses.
Any current balance of that account would be offset at least to a degree by the accounts held in the wife’s name. Evidence adduced in respect of bank accounts was extremely limited and of little assistance to me.
I do not propose to add either back to the pool of assets.
The wife in her affidavit refers in paragraph 73 to four further transactions made by the husband totalling about $16,420.00. These are said to have occurred in November and December 2008. They are further withdrawals from joint accounts by the husband. He admits the transactions. He says they occurred on his accountant’s advice following separation and were attempts by him to cancel direct debits from the [A] Pty Ltd account. He says that in fact the attempts were unsuccessful because he did not nominate an alternative account for those direct debits. I accept the husband’s evidence in this regard. The evidence was clear, precise and not successfully challenged in cross-examination.
I do not consider these monies withdrawn by the husband or attempted to be withdrawn by him to be other than balances remaining in his business account. I do not propose to allocate them as being assets retained by the husband. I do not intend to add those monies back
to the asset pool.
In summary, therefore, the pool of assets remains as set out above.
It follows that I intend to deal only with the real property and superannuation of the parties together with their liabilities.
Parties’ proposals – property
The wife in her amended response filed 27 February 2009 sought orders inter alia that she retain all real property and all four liabilities. In real terms therefore she seeks to retain the entire equity of the agreed asset pool in the sum of $326,577.00.
It has always been the wife’s claim in these proceedings that she keeps both the former matrimonial home and the rental premises at Property H, [H].
In her opening and closing submissions counsel for the wife argued that the wife should retain her interest in the [D] property and receive a 60% distribution of the remaining assets. This appears to be based on the wife successfully arguing her case that she be the primary carer of the children and also an alleged income discrepancy between her and the husband.
The husband had previously sought orders for the sale of both the Property V and Property H properties. He has always conceded that the wife should retain her interest owned together with her siblings in the property at [D]. However, he includes that interest in the pool of assets for consideration. Nevertheless upon the matter coming on for hearing he now seeks an order whereby he retain either the Property V or Property H properties with his preference being to retain the former matrimonial home at Property V. That preference seems based on him having established a home-office at Property V. In percentage terms I was told the husband seeks a 50/50 settlement.
Neither party proposes a splitting of their superannuation entitlements and it follows that I am to order that each party retain his or her own superannuation policy and entitlement.
Issues
I see the issues between the parties as being the following:
a)
Whether or not there should be add-backs to the property pool
in respect of the withdrawals made by the husband from the mortgage accounts. I have dealt with this issue above and have declined to make such add-backs.
b)
The initial contributions by the parties and, in particular,
the wife’s interest in the [D] property.
c)
The contributions of the parties during the marriage including
an alleged negative contribution by the husband by way of loss
of rental income in the period since September 2008.
d)The adjustment to be made, if any, for s.75(2) factors including but not limited to the arrangements for the children’s care and any discrepancy in income and earning capacities of the parties.
e)Which party should retain the particular properties at Property V and Property H, [H].
f)Whether the wife has the option to retain the Volvo motor vehicle.
The evidence
In addition to her affidavit the wife relied on a sworn financial statement filed 27 February 2009. Unfortunately, the husband did not file an updated financial statement but relied on that filed 29 October 2008.
Contributions
At the commencement of cohabitation each of the parties owned
a home unit of approximately equal value.
During the 1980s and prior to the marriage the wife had obtained
a one-fifth interest in a property at [D], Victoria, together with her siblings and mother. The purchase price was then $80,000.00. The wife’s gross interest therefore being some $16,000.00. The agreed value of the property now is $500,000.00. The wife’s interest is $100,000.00.
The evidence is that there was a mortgage liability attaching to the [D] property. Rentals from that property over the years have been applied to the mortgage. The wife’s evidence from her financial statement is that she receives $84.00 per week from the property and that she has an interest in a bank account, presumably a one-fifth interest, relative to that investment property. The balance of the account is $18,503.90. The wife’s interest is about $3,700.00.
The parties do agree that some contributions by way of cash payments were made in respect of the [D] property during the marriage. The wife’s evidence is that her mother would ask for cash contributions. The wife cannot remember the exact amounts of such contributions. This accords with the husband’s evidence. He recalls cash payments in the early years of the marriage. The wife says that the payments were made only in the “first two years of the marriage”. The husband also can’t remember the amounts. He says, however, that the payments were made at a time “we were living a yuppie lifestyle with lots of money coming in”.
On the evidence I find that the initial contribution to the [D] property was made by the wife. The contribution by the parties during the marriage has been minimal. The property and the wife’s interest in it has increased in value but not apparently because of any actual contributions made by the parties or either or them during
the marriage. That is, the wife’s interest in the [D] property can be seen as essentially being as a direct result of her pre-marriage interest in the same property.
The net assets of the parties leaving aside their superannuation is $326,577.00. Inclusive of superannuation the net pool is $384,507.00. The interest in the [D] property is $100,000.00 or about
30 per cent of the total tangible assets.
The parties purchased the former matrimonial home in Property V, [H], and the investment property at Property H, [H], in 1997 and 2007 respectively. The purchases were made by the sales of the parties’ home units that they owned at the date of the marriage together with significant borrowings. There is no doubt that the parties’ contributions to any equity in these properties is equal.
The husband has been employed throughout the marriage. He earned
a good income and has been the major financial provider for his family. The nature of his self employment took him away from home for periods.
The wife also worked in her chosen field as a [omitted]. Like the husband, she has her own business. She is best described as working part-time. Her income was less than the husband during the marriage but was also put towards the benefit of the family generally. The wife’s part-time work allowed her to assume a greater caring role for the children. The evidence suggests that she has in the main limited her work to coincide with school hours. I do, however, accept the husband’s evidence that he has at times cared for the children to allow the wife to attend to her psychology practice in after school hours.
The property at Property H has been let to tenants. It is apparently a substantial property with nine bedrooms. The wife has attended to its management and more recently has done so with the sanction of Court orders. Her part-time self-employment allowed her the opportunity
to assume this role.
Both parties contributed to the care of the children. The husband does not dispute the wife’s historical role in this regard. At paragraph 16 of his trial affidavit Mr Greco says in respect of his parental role:
I have had a close and loving relationship with my three children. Over the years I have been involved in numerous activities with them including the following, although I note that the list is simply an example and is not meant to be exhaustive:
i.weekly Scouting activities for [X] and [Y] and also attending Scout camps,
ii.organising sleep overs with cousins / extended family,
iii.regularly attending school activities such as sports days, sporting events, special days at school and Father’s Day morning tea and the like,
iv.taking the children on walks to the local parks and playing there,
v.taking [Y] and [X] on an annual trip to the snow for about four days,
vi.being with the children in my home office whilst they were drawing or doing research for homework on computers when their mother was working,
vii.reading stories and listening to reading on a daily basis,
viii.attending to nightly prayers,
ix.on weekends cooking meals with [X], [Y] and [Z].
In cross-examination the wife was loath to accept the veracity
of the husband’s evidence in respect of his care of the children.
However, taking the evidence as a whole and having the benefit
of seeing the parties in the witness box and being cross-examined,
I am of the view that the husband did assume some of the responsibility for the day to day care of the children albeit not to the same level
as the wife. This is not a criticism of the husband rather a reflection
of the more traditional division of tasks within the household with the husband being the major financial provider.
Since separation the parties have more equally attended to the day
to day care of the children. This situation been formalised since late 2008 by way of Court orders.
The wife claims a negative contribution by the husband of some $20,799.00 post-separation. She says that this is an amount of rental loss suffered by the parties apparently from September 2008 until February 2009. She says that he has evicted tenants, threatened
to evict tenants, posted copies of Court orders on the tenant’s doors, and generally acted so as to discourage tenancy of the Property H property.
An order was made by consent on 23 December 2008 as to the sale
of the Property H property. It is true, however, that the wife withdrew her consent and sought to retain that property in her own right. A further order was made on 13 February 2009 that in the interim have the sole use and occupation of the Property H property conditional upon her accounting to the husband. The matter came on for trial only a few weeks later being 16 March 2009.
The husband denies that he has acted in the way alleged by the wife
or that there was a loss of rental as alleged.
The wife’s evidence, particularly under cross-examination, was unsatisfactory in this regard. She produced no financial records.
She did concede rental income of $8,000.00 in October 2008 and $6,645.00 in November 2008. There is no corroborating evidence
of her allegations. For instance, there was no affidavit from any of the allegedly affected tenants. Left with an issue of credit, I prefer
the evidence of the husband in this regard and do not find any negative contribution by him.
I find that the parties have contributed equally during the course of the marriage and since separation.
In conclusion as to contributions, therefore, the issue for me is to attribute some recognition to the wife’s superior initial financial contribution. I find otherwise that the parties’ contributions have been equal. I must consider that it is now almost seventeen years since the parties commenced cohabitation and whether or not the wife’s initial contribution has been eroded over time by the contributions of the parties generally during the course of the marriage. I take into account that the actual property owned by the wife and brought into the marriage is still in her hands. I consider the actual and nature of any contributions made by the parties to that property during the relationship. I take into account its significance in the sense of value and in relation to the entirety of the parties’ net property pool.
The value of that property constitutes almost thirty percent of the total value of the parties’ net tangible assets. I must consider whether the increase in that particular asset has been due to the efforts of the parties or some external factor.[10]
[10] See Pierce and Pierce (1998) FLC ¶92-844.
In his final submissions counsel for the husband submitted that I might allocate the wife a 10% loading on account of her superior initial financial contribution. However, taking into account all of the factors listed above in relation to the evidence generally, I am of the view
an adjustment of 15% in the wife’s favour from the total pool of assets would be appropriate.
Section 75(2) factors
The husband is 42 years of age. He is in good health. He deposes
to an income of approximately $125,000.00 per annum from his self-employment. He has not re-partnered.
The wife is 43 years of age. She remains self employed as a [omitted]. She deposes to some health difficulties of an emotional nature. She does not, however, claim that they inhibit either her capacity for employment or her ability to care for the children. She has not re-partnered.
The wife’s trial affidavit at paragraph 80 states that she had a taxable income for the year ended 30 June 2008 of $40,533.00. Her financial statement filed the same day discloses a gross income from her employment of $1,350.00 per week which equates to about $70,000.00 per annum. The figures may be distorted by the fact that the wife’s employment involves schools and she may not work during school holidays. In addition “taxable income” implies some deductions and does not usually equate to gross income. I am prepared to find that the wife has been earning up to a gross $70,000.00 per annum which in any event places the husband in a higher income bracket.
Nevertheless, little may turn on the wife’s historical income.
I am obliged to consider income earning “capacity” of the parties.
It must be understood that a part of the wife’s argument in respect
of the children’s matters was that she could be more available for them relative to the husband due to his work and travel commitments.
This is despite the evidence of the husband that he worked in part from a home-office. The wife’s argument was that her own work coincided primarily with the school times of the children. Historically that appears to have been the case.
The wife’s preferred position in respect of financial matters is that
she keep all parcels of real estate. When cross-examined as to how she could do so financially, the wife volunteered that she could earn $200,000.00 per annum from her employment. When pressed she anticipated earning $4,000.00 per week and working 40 hours
per week. I calculate from her own evidence that she would then
be required to work about 50 weeks per year. I accept the wife’s evidence in this regard as to both her intentions and her earning capacity. That evidence and my acceptance of it is inherent in my determination of the children’s issues. The wife elaborated in cross-examination by saying that she would continue her current work during school hours plus “after hours and plan to do it when the children are with Mr Greco”.
The wife herself volunteered this evidence. She did so with a confident demeanour. There is no doubt that her current income has been derived from part time employment. She impressed as a person of ability and fortitude. Consequently, I am prepared to accept her evidence and find, at the very least, that she has an earning capacity similar to that of the husband.
The orders that I make will see the parties having equal responsibility for the care of the children. They will each be required to provide similar facilities, time and effort for the children’s care.
The flexibilities of their self-employment status will assist them
in doing so.
I therefore do not intend to make any adjustment in favour of either party on account of the considerations under s.75(2) of the Act.
Conclusions – property settlement
After considering both the contributions of the parties and the other matters under s.75(2) I determine that the wife should receive 65% of the net assets of the parties.
The net pool of property is not large. Neither party has superannuation entitlements of great magnitude. I do not propose therefore to make any splitting or flagging orders in respect of those entitlements and prefer rather that each party should retain his or her own superannuation policy and entitlement. The husband’s policy
is of slightly greater value than that of the wife. The offset is that the wife will have available to her in the future the resource of her interest in the [D] property and its income.
The pool of tangible net assets, leaving out the superannuation interests, is $326,500.00. I propose to order that the wife receive 65% of this tangible asset pool. This will give her an entitlement of $213,250.00. The wife will retain her interest in [D] valued at $100,000.00. Her further entitlement is therefore $113,250.00. The husband’s entitlement would also be $113,250.00 or 35% of the net pool of assets. To put it another way, the adjustment of 15% for the wife by way of her contribution in the form of the [D] property is accommodated by her retaining her interest in the [D] property.
There remains the question of which party shall retain which property or properties. The husband in his initiating application filed as recently as 29 October 2008 sought orders for the sale of both the Property V and Property H properties. He filed an amended application on
18 December 2008and sought the same orders for the sale of the properties.
However, when the matter came on for trial the husband’s position had changed. He now wants to retain one of the properties and preferably the Property V home.
The wife, after initially consenting for an order for the sale of Property H, now seeks orders that give her both Property V and Property H properties. She is prepared to take over the mortgage liabilities.
It is noteworthy that the Property H property is large and containing as many as nine bedrooms with a potentially significant rental return on the evidence of $1,300.00 per week or $65,000.00 per annum. These figures are of course in gross terms. The wife’s financial statement sworn 27 February 2009 discloses rental from Property H at $533.00 per week. I note, however, her argument in respect of the disturbance of the tenancies over the past three months. I do so, however, without attributing fault to the husband.
The evidence is that the wife has also let rooms in the former matrimonial home at Property V. She did so without the husband’s consent and perhaps to the dissatisfaction of the children.
The wife’s case at its simplest is that she wishes to and can retain both Property V and Property H properties. She will let rooms in both properties. She and the children will remain resident in the Property V property. She will refinance the mortgages into her own name. She will work to her capacity as a [omitted], being to the extent of earnings of $200,000.00 per annum, all in order to retain the two properties.
It was when challenged in cross-examination as to this ability
in financial terms to retain the properties that the wife volunteered that she would increase her work commitments so as to achieve $200,000.00 per annum. However, she would be assuming a mortgage commitment of almost $2.1 million. The agreed values of the properties are now less than those originally estimated in the wife’s trial affidavit. The wife’s evidence was that she has not obtained bank approval for finance on the adjusted valuation figures. She was confident, however, that she could receive financial assistance from
a member or members of her family. There were no affidavits from any such family members.
The husband’s preference is for him to retain the Property V property. He bases this on the fact that his business has been operated in part from that address. He has renovated a home office. In cross-examination however he conceded that he could use the Property H property as a home and office albeit with some renovations. His evidence was that he was “not attached to it [Property V]. Only from a business point of view” and “if I have to I can run the business from somewhere else”.
I find that each party has a preference to the Property V property. It is, however, only a preference. The wife wishes to retain both properties. Her ability to do so is tenuous and unknown. A sale of one or both properties is likely to reduce an already minimal net asset pool by way of costs of sale. Each party must in any event provide suitable accommodation for the children. The wife has had sole residence of Property V now for some months. The children have settled there with her. Taking all of these matters into account I am of the view that the wife should have the option of retaining the Property V property but not both properties. The husband should have the opportunity to retain the Property H property. If the wife cannot retain Property V then the husband shall have the option to retain that property. Similarly if the husband does not wish to or cannot retain Property H then the wife shall have an option to keep that property.
To give effect to the 65/35 percent division of the net tangible assets
of the parties, they will need to refinance the existing three mortgages and loans so that each party retains equity of $113,288.00. This is in fact one half of the total equity they have in the Property V and Property H properties.
The wife on the evidence wishes to retain the Volvo motor vehicle. The husband has a company vehicle at his disposal. The wife has previously used the Volvo. Its equity is nil or minimal. I propose to give the wife the option to retain the Volvo.
I must consider pursuant to s.79(2) whether the orders I propose to make are just and equitable. Pursuant to my findings I must give weight to the superior initial contributions of the wife. She will retain her interest in the [D] property. The husband will, however, retain a slightly higher superannuation entitlement than that of the wife. The contributions by the parties during the marriage have been found to be equal. There are two parcels of land. Each party expresses a preference to retain one of those properties. It is a preference only and not based significantly on necessity. My orders allow for each party to retain one of the residential properties and by doing so to have equal equity in the two properties as they now stand. In all of the circumstances I am content that the orders I propose to make are just and equitable.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of McGuire FM
Associate: A Creek
Date: 16 June 2009
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