HARDWICK & O’SHANASSY

FAMILY COURT OF AUSTRALIA

HARDWICK & O’SHANASSY

[2008] FamCA 781

FAMILY LAW – CHILDREN - Best interests – wife living with the child in Ireland – what time the child should spend with the husband in Ireland and Australia.

FAMILY LAW – PROPERTY SETTLEMENT – post separation savings– valuation and treatment of the wife’s superannuation entitlement in an overseas scheme – treatment of inheritance received by the husband.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Hardwick

RESPONDENT:

Ms O’Shanassy

FILE NUMBER:

SYF

4501

2005

DATE DELIVERED:

19 September 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

1-2 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Henness

COUNSEL FOR THE RESPONDENT:

Ms Givney

Orders

Children’s Issues

The child of the marriage born on … May 1995 live with the wife.
The wife have the sole parental responsibility for the child whilst he is in her care.
The husband have the sole parental responsibility for the child whilst he is in his care.
The child spend time with the husband for one half of each Irish summer school holiday period and that time may at the husband’s option be spent in Ireland or in Australia.
In the absence of other agreement the time the husband spends with the child during the summer school holidays shall be the first half in odd numbered years and the second half in even numbered years.
If the husband exercises his option to spend the time during the Irish summer school holidays with the child in Australia he shall give the wife at least 30 days notice of his choice of Australia as the place in which the child will spend the time.
In the event that the husband is to spend time with the child in Australia he shall provide to the wife at least 21 days prior to the child’s proposed date of departure details of the return airflight from Ireland to Australia and the wife will do all such acts and things necessary to place the child on the plane for such journey.
For such contact in 2009 and 2010 the child shall (unless otherwise agreed) travel on an airline supervision scheme so that his travel is supervised by the airline.
The cost the child’s return airfare and any supervision under the airline scheme shall be borne by the husband.
The wife shall ensure that the child has a current passport either Irish or Australian or both and any necessary visas for travel.
The child will also spend time with the husband (unless otherwise agreed in Ireland) for one half of each other period of Irish school holidays of which periods the husband has given the wife at least 21 days notice of this intention to be available for such purpose.
The child will also spend time with the husband during any period of school term time of which the husband gives the wife 21 days prior written notice of his presence in Ireland and his intention to spend time with the child. That time shall be each alternate weekend during such period as is nominated from the completion of school on Friday until the commencement of school on Monday.
The child is to be able to telephone his father at any reasonable time and the wife is ordered to facilitate such telephone calls.
The wife and the husband are to do all such things as may be necessary at their joint and equal cost to provide for the child the means whereby he can communicate with his father by email and web cam and facilitate such contact.
The wife is to provide to the child unopened any mail or parcels received from his father and afford the child privacy for communication with his father by any of the methods referred to.
Each party is restrained from saying or permitting anything to be said in the presence or hearing of the child which is in any way derogatory of the other or the others family or any partner of a party.
The wife is to forthwith notify the husband of any ill health that the child may have or any accident. The wife is to provide all necessary authorities as would permit the husband to contact the child’s medical advisors or any hospital to which he may be admitted and gain such information concerning the child, his condition, his treatment and the prognosis for his condition.
The wife is to sign all such documents as may be necessary to enable the husband to be provided with all school reports and announcements from the child’s school and to enable the husband to discuss the child’s progress with the teachers at that school.
The wife is to keep the husband informed of any significant social or sporting or religious activities or milestones in the child’s life and of his educational achievements.
Unless the parties otherwise agree for the first 12 months of the operation of these orders communication between them should be by email and if not by email confirmed by email.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached to the engrossed Orders and these particulars are included in these Orders.

Property Issues

That within 28 days of the making of these orders the parties complete, sign and furnish to their respective solicitors all authorities and directions required for the purpose of payment to each of the parties of the following amounts from the net proceeds of sale of the former matrimonial home held in Trust:
(a) to the wife $213,326.
(b) to the husband $129,812.
Contemporaneously with the payment referred to in Order 22 the wife shall pay the husband $40,249.80 by way of property settlement.
In relation to the husband’s inheritance of $168,000:
(a)the wife is entitled to 10 per cent of that amount, that being the sum of $16,800
(b)the husband is entitled to the remainder, that being the sum of $151,200
(c)contemporaneously with the payment referred to in order 22, the husband shall pay the wife $16,800, being the amount referred to in Order 24(a).
As against the husband, the wife is declared the sole beneficial owner as from the date of these Orders, of the superannuation entitlements she has in NGS Capital Super, Catholic Superannuation Retirement Fund and the Secondary Teachers Superannuation Scheme (Ireland).
As against the wife, the husband is declared the sole beneficial owner as from the date of these Orders, of all superannuation entitlements in Australian Super.
That unless otherwise specified in these Orders, each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party at the date of the making of these Orders.
That if either party refuses or neglects to sign, within fourteen (14) days of a written request to do so, any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

IT IS NOTED that publication of this judgment under the pseudonym Hardwick and O’Shanassy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4501 of 2005

MR HARDWICK

Applicant

And

MS O’SHANASSY

Respondent

REASONS FOR JUDGMENT

Introduction

An Irish couple, who have during their marriage lived in both Ireland and Australia, and have borne children in both places, in circumstances where now the wife resides in Ireland and the husband in Australia (he now says permanently), seek the assistance of the Court to make arrangements for their remaining child to have a relationship of a meaningful nature with each parent, notwithstanding the distance between their places of residence and to divide the assets of their marriage between them.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
Each of the parties was born in Ireland. The wife was born in February 1957. She is presently 51 years of age. The husband was born in July 1954 and is presently 54 years of age.
The wife obtained qualifications as a school teacher before her marriage and was employed in that profession. The husband practices a profession.
In 1985 the parties commenced cohabitation.
In June 1986 the parties married.
As at the date of the marriage the wife said the husband had a property situate at D in Ireland which was the subject of a mortgage charged on it and a motor vehicle.
The husband’s evidence is that he had the house at D in Ireland which was the subject of a mortgage securing the repayment of $40,000, a new Toyota Landcruiser and a boat.
I accept the husband’s evidence as to the husband’s property as at the date of the marriage.
The wife asserted that she had a motor vehicle which the wife asserted in her oral evidence was of value of €5,000. I accept the wife’s evidence as to the assets she had as at the date of the marriage.
As at the date of the marriage the wife was employed as a schoolteacher on a salary of $30,000 per annum and the husband was employed on a salary of $50,000 per annum.
In 1987 the husband’s house at D was sold and a sum of $40,000 was realised from its sale. The proceeds of sale were used for the purchase of airfares to Australia as hereinafter set out and to provide a deposit on the purchase of a house in Australia and the transhipment of personalty to Australia.
In May 1988 the first child of their marriage was born. He is presently aged 20 years.
In November 1988 the parties immigrated to Australia.
The husband commenced work for a company.
In July 1989 the parties’ daughter was born. She is presently aged 19 years.
The husband and wife in 1989 purchased the property at B for a price of $225,000 which was financed in part by part of the proceeds of the sale of the D property and a mortgage advance from the State Bank in the sum of $200,000.
In 1990 the wife resumed work as a schoolteacher. The husband continued in his profession for various employers, until 2004.
In January 1992 the husband and the wife and the oldest child became Australian Citizens.
In 1994 the parties purchased vacant land at K. The parties constructed a home on the property and the total cost of the land and the building was in the region off $400,000. The totality of the cost was borrowed from the National Australia Bank.
In May 1995 the subject child was born. He is presently aged 13 years and 4 months.
In 1995 the parties leased the property at B and commenced living at K.
In 2003 the parties sold the property at B and the wife says that the parties realised $100,000 which was used in part to reduce their mortgage as well as purchasing shares in a company, C Company, for whom the husband worked. The company went into liquidation and the investment was lost.
In June 2002 the husband alleged and the wife disputed that the parties separated but continued to live under the one roof.
The wife asserted that the marriage was in difficulties but the parties did not separate.She says they continued to have sexual relations from time to time and attend social and educational functions together.
The wife asserted that the parties separated in 2005 when the husband (who had come to Australia from Ireland where the parties were previously living under the one roof) told the wife that he did not wish to return to Ireland.
It is difficult to pinpoint a date of separation but it is somewhere between the two dates alleged. As with many other parts of this case evidence was somewhat sparse. It is however clear that the parties it seemed substantially resided under the one roof until 2005.
In December 2004 the husband was left an inheritance from his mother. The amount of the inheritance was in dispute between the parties but at the time of the Irish Court order hereinafter referred to it appeared to be about €105,000.
Once again available supporting documents to corroborate evidence in the case were notable on both sides by their absence.
In 2004 the husband says that the parties returned to Ireland for an extended holiday. The wife’s assertion was that it was more in the nature of an exploration of whether they wanted to continue to live in Australia.
In July 2005 the wife says and I accept that the husband returned to Australia it being agreed between them that he could arrange the sale of the property of the parties and the transhipment of their personalty to Ireland.
The husband on arrival or shortly thereafter informed the wife that it was not his intention to return to Ireland and he took up occupancy of the real estate he had come to sell. The mortgage was not paid during his occupancy.
The husband was involved in discussion with the wife in relation to settlement. Each of the parties had various versions of those negotiations and it seemed to me that the wife held out on available contact with the child and the husband for a time on the sale of the home in an endeavour to procure an overall settlement by exercising the bargaining power available to them. This process was not successful in procuring any progress toward resolution of the matter and its conduct probably only yielded unhappy results for each of them and the child.
In August 2005 the National Australia Bank mortgage stood at $243,864.73.
In November the husband filed an application for property settlement.
In 2006 the wife purchased a car with money borrowed from her family. The car and the loan have in the balance sheet finally proposed been removed by the wife. It is suggested that they close to balance each other out in any event.
In 2007 the property at K was sold for a price of $670,000 and the mortgage debt then standing at $272,000 was discharged. The net realisation of funds from the sale were placed in a trust account.
Certain payments were made from the account which the wife says were without her approval. The number disapproved by her diminished from the case outline document to the final balance sheet in the matter. They are however addbacks I have made to the balance sheet credited to the husband in my decision to reflect that removal of monies finally asserted by the wife, since they were removal from joint funds either without the wife’s consent or for the sole benefit of the husband.
In 2007 the husband received a taxation refund in the sum of $33,482.
In July 2007 the husband returned to Ireland and commenced seeing the eldest and the youngest child (the subject child). It is asserted that the daughter expressed the wish not to see him.
In November 2007 an order was made in an Irish Court that he pay the sum of €120 per week for the support of the children. It is to be noted that is a matter of agreement between the parties that the Irish law continues the obligation to pay support for a child beyond the 18^th year to the 23^rd year if the child is not in full time employment. In this case the eldest child is undertaking tertiary education and the daughter will do so next year. She is apparently presently working on a part time basis only. The youngest child is still at school.
In May 2008 the husband returned to Australia knowing that there were proceedings pending in the Irish Circuit Court in relation to child support.
In March 2008 the Irish Circuit Court made an order restraining the disbursement of monies comprising the husband’s inheritance and held by his solicitor in a trust account on his behalf.
On 24 July 2008 the Irish Circuit Court made orders that the husband pay child support for his children in the sum of €80 each (a total of about $384 per week on the current exchange rate which I am informed is €1= $AUD1.60).
Orders were made as to the payment of arrears amounting, I am told, to the sum of about $10,000 from the monies held and as to the payment of the ordered child support from the fund six monthly in advance from time to time.
The order is to continue until the monies are exhausted or until the Court otherwise directs. (This was information supplied by the wife’s counsel. It seemed a pity that a copy of the order was not made available, but in this matter that was probably just consistent).
The monies held by the solicitors for the husband in Ireland are to continue to be held subject to the injunction previously made and the orders for disbursement. It seems that the husband did not defend the proceedings, preferring instead to return to Australia.

The Issues

The issues in these proceedings changed over the course of the hearing.

Parenting Issues which arose

(1)Whether parental responsibility should be solely with the wife or joint.
(2)What time the child would spend with the husband in Ireland, assuming the husband went there from time to time or at any time.
(3)There was also an issue as to when the child might come to Australia to visit with his father (it being stated by the husband that he intended to permanently reside here).

Property Issues which arose

In relation to the property issues the questions which arose for determination were:
(1)What was the property of the parties or either of them for the purpose of division of property?
(2)In particular should a post separation savings of the wife be included in such property?
(3)How should the superannuation entitlement of the wife under an Irish Scheme providing for defined benefit and a lump sum be valued and treated?
(4)How should the husband’s inheritance be treated having regard to the orders which were made in relation to it? Should it be treated differently from the order for alteration of property interests to be made with respect to the other property of the parties?
(5)What was an appropriate division of the totality of the property of the parties having regard to these matters which would reflect their respective contributions to it?
(6)What adjustment should be made under the provisions of section 75(2) having regard to the child support orders and the security for them and the fact that the wife’s Irish Superannuation was not susceptible to a splitting order under Australian Law and that if the husband were to retain his superannuation he would not have access to much in the way of cash? It was proposed by the wife that there should be such an adjustment.

Relevant Law in relation to parenting issues

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility. I do not intend to make an order for shared parental responsibility at this time and so do not need to consider whether the child should spend equal time with his parents.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

Neither of these parties say other than that the child should have a meaningful relationship with each of his parents. In this case it seems to me that the child has had a close and loving relationship with the father, a matter referred to by the wife in oral evidence. She also says that it is a relationship the child enjoys. That for the future the child will reside in Ireland and the husband in Australia does not mean that the meaningful relationship they have cannot continue since that phrase is a qualitative one, and the orders I propose are designed to foster it even if the time the father spends with his son, because of geography, is limited.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no evidence that the child has been exposed to physical harm or abuse or family violence.
The husband in coming in and out of the child’s life in the way in which he has, has led to the child on occasion withdrawing into himself and the husband appears to have acted with less than an appropriate regard for the child’s needs.
The wife’s failure to provide agreed contact between the children and their father in circumstances where financial matters had not been resolved did not cast her in a favourable light. The husband it is noted has endeavoured to maintain telephone contact with the child.
I am sure that having had the effect of his conduct drawn to his attention that he will in the future act in a way which does not cause his son hurt.
I think that the level of the conflict between the parents has been such as to create a climate in which neither of the parties has been able in the past to put that dispute at a distance from their obligations to their children.
The dispute now coming to an end and the dust of it settling, I believe that they have the intelligence to observe that they will not be fulfilling their obligations to their children if they do not ensure that the children know that they approve of them seeing and being with the other parent.
Given that intelligence, I believe that they have the capacity to demonstrate a willingness to act for the benefit of their children and to promote a proper relationship between the child and the other parent.
They ought now to be able to have sufficient insight to realise that children are not to be treated as pawns in a struggle to save something from the wreckage of a marriage. Therein would be constructed a path of disaster for the very child they seek to support and nurture.
I am confident that they can begin in a co-operative way to avoid that possibility.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

There are no views expressed by the child in any direct way. This matter does not have the benefit of any family report. The wife has made observations on the emotional effect on the child of his father’s departure from Ireland, but the child was happy to see him when he returned and happily spent time with him including overnight time.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
It appears on such evidence as I have that the child has a happy relationship with each of his parents. There is an extended maternal family in Ireland and although there was little said about it, that family appeared to be supportive of the wife. There is no evidence to suggest that there is not a good relationship between the child and his extended family.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In the witness box the wife made statements as to her willingness to encourage a close relationship between the child and his father.
The husband, who is to continue living in Australia, appears content that the child continue to live with the wife.
Apart from suggestions that in the heat of battle there may have been some misuse of the child and some restriction of his ability to spend time with the husband, there is nothing which bodes badly for the development by the child of a good relationship with each of his parents and I am sure that they will facilitate and encourage that. I propose to assist them in their task by making some orders which will facilitate contact between them. I recommend that the husband undergo a parenting after separation course in the belief that it will assist him in understanding the child’s perspective in the situation in which he finds himself. I make the like recommendation to the wife, if such a course is available in Ireland.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I do not believe that given the orders I propose to make for the child to spend time with his father that there will be any detrimental effect on the child from those changes. They will afford him the opportunity to benefit from the inputs his father can make into his achieving his potential. The child is sufficiently old enough to understand the nature of the orders and the fact that he will be returning to his home at the end of the period of time involved. It will afford him the opportunity of keeping in touch with Australia and the ties that he has here as well as maintaining contact with his cultural and historical roots in Ireland.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There will be no doubt expense involved in the child communicating with the husband but it is an expense that he has indicated to the Court he is willing to meet. Given the geographical location of the child and the husband I have made orders for the facilitation of email, web cam and telephone contact as well as mail contact and face to face contact during the times that it is going to take place. The distance between the husband and the child will however impose less than an ideal situation for the maintenance of personal relations.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
Each of the wife and husband have demonstrated some failings in providing for the child’s emotional needs. I am sure this will not continue. Each of them is, I am sure, given their education and background able to provide for the child’s intellectual needs. Each of them is capable of meeting the child’s physical needs.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
By all accounts the child is a happy child but for the time during which he became withdrawn following his father’s departure from the home. I am told that he is intelligent. He has been educated by his mother in the cultural background of Ireland, including learning Irish Gaelic. I am sure that he will benefit from this knowledge and association as he will from his capacity to draw from the Australian traditions, many of which are Irish in origin.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parents demonstrated a capacity to care for this child from a young age. Each says of the other that they did play an active role in the child’s life, although they may disagree only on issues of extent.
The husband has had a problem clearly in dealing with the breakdown of the marriage and resolving the matters which have been in dispute between him and his wife. That has led him, coupled perhaps to some extent with a lack of regular employment, to fail to meet in full measure his financial obligations to his children. However, the present situation is that orders have been made for the children’s support and arrears are being paid and current payments met. At present there is security available provided by his inheritance to meet his obligations to his children. Although those arrangements were not of his seeking it is noted that nothing so far has been done to change them and I would like to believe that the husband has every intention of honouring his clear obligation to provide support for his children, whether or not they see him or reside with him.
(j)any family violence involving the child or a member of the child’s family
There is no evidence of any such violence.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is none.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I hope that my order will do that. I urge upon the parties the view that this child will benefit from an encouraged relationship which is positive with each of them, and that each of them has an obligation to provide that for the child and not stand in the way of it developing.
As the child gets older clearly he will have his own views and the parties should take into account genuinely and independently expressed views of the child in making arrangements for him. They should not in the first instance be determinative, but as the child gains age and maturity they should carry greater weight.
(m)any other fact or circumstance that the court thinks is relevant
The wife has said that she would agree to the child coming to Australia to spend time with his father but that she did not like the idea of him travelling unaccompanied until he was older. She also said that she would like to discuss this with him. The time for that discussion was prior to the commencement of these proceedings and I do not intend that its absence should prevent me from making the orders necessary to end this litigation.
I have asked the husband whether he would be prepared to provide the funds necessary to allow the child to come under an airline accompanying scheme for minors, and he has said that he would.
Whilst I do not share entirely the wife’s concerns, I believe for the first two visits to Australia which will occur in 2009 and 2010 he should be so accompanied. The wife can then have some reassurance which will hopefully mean that the child will not be adversely affected by unnecessary anxiety on the part of the wife during this initial period.
The husband has said that he may return to Ireland from time to time and I will make some orders which might take effect on such a return during the child’s school holidays. I have been asked to consider making orders for the husband to have contact with the child during school time if he is then in Ireland. I would hope the parties would continue to agree on flexible contact in that event. They have done so in the past and there seems to be no reason to assume that they cannot and will not do so in the future. However, as a minimal position, I propose to order that the child spend time with his father each alternate weekend for the period commencing at the close of school on Friday until the commencement of school on the following Monday during any time during school term of which the husband has given the wife 21 days prior written notice of his presence in Ireland during school term and his desire to have the child spend time with him.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the parties’ conduct in the turmoil of the breakdown of their marriage and the attendant dispute, dislocation and relocation and the like is unproductive in that I do not in this case regard it as some bellwether for the future. Such is the underlying love of these parents for their children I believe that it is in their capacity to consign past hurt to the dustbins of history and leave it there. A failure to do so would bespeak of a level of irrationality which I do not find present in either of them.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been no family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is reason for the presumption not to apply.
The geographical location of the wife and the husband and their more recent history of lack of communication is such that they would be unable with ease to communicate about those decisions required to made jointly by the operation of such an order, particularly initially.
There is an immediately past history of confliction between the parents. In this judgment I have articulated the hope that I have for the future of their relationship. However, I think for the time being requiring the communication that this sort of order would require might well be an occasion which could easily tempt a reawakened conflict in the short term which in the interests of the child is to be avoided.
However, I propose to make some specific orders which will require the wife to communicate certain matters to the husband. I would hope that given time, if communication can be restored each of them will be able to consult directly with the other on matters concerning their common concern, namely the welfare of their child.
I will also make an order that the husband shall have the parental responsibility for the child whilst he is in his care.

Section 65 DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
I do not propose such an order in this case whilst the husband continues to live in Australia. If the husband is going at some time in the future to live in Ireland and be able to make arrangements for weekly contact then that might be a time for some reconsideration of the arrangement.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set out above.

Property matters

The first step I must undertake is to identify the property of the parties or either of them, available for division between them.

The Balance Sheet

The Court at the commencement of the hearing was provided with a balance sheet for its consideration. In due course a further balance sheet was provided which is as set out hereunder.
The Balance sheet provided was not a joint balance sheet but in the absence of an updated one from the husband I have used it as a basis for consideration in this matter. This balance sheet was provided by the wife together with a proposal for distribution as follows:-

POOL A
Husband	Wife
Sale proceeds	$171,569.00	$171,569.00
Paid Mr S [fees]	4,400.00
Paid Grace Removals Group	10,403.00
Ford Falcon motor vehicle	5,000.00
Toyota Camry motor vehicle	9,000.00
Husband’s inheritance [estimated]	167,800.00
Ulster Bank: Account No. …	3,000.00
$368,172.00	$174,569.00
Nett Asset Position
Husband	$368,172.00
Wife	$174,569.00
$542,741.00
POOL B
Australian Super	$243,883.00
NGS Capital Super	25,571.90
Catholic Superannuation Retirement Fund	45,208.00
Department of Education and Science	108,000.00
$243,883.00	$178,779.80
Asset Pool	$542,741.00
Husband’s superannuation	243,883.00
Wife’s superannuation	178,779.90
$965,403.00
Less inheritance	167,800.00
$797,603.90
Wife’s contribution
55 percent of $797,603.90	$438,682.14
15 percent of $167,800.00	25,170.00
$489,022.14
Wife receives 50 percent of $965,403.90	$482,701.95
Wife has:-
Ulster Bank Account	$3,000.00
Superannuation	$178,779.90	181,779.90
$300,922.05

Husband receives:
Mr S fees	$4,400.00
Paid Grace Brother Removals	10,403.00
Paid Falcon motor vehicle	5,000.00
Toyota Camry motor vehicle	9,000.00
Husband inheritance	167,800.00
Husband superannuation	243,883.00
Balance proceeds	42,216.00	$482,702.00
5 percent to husband under Section 75[2]
Therefore husband receives from sale proceeds	$48,270.15
42,216.00
$90,486.15
Therefore wife receives from sale proceeds	$300,922.05
48,270.15
$252,651.85
Therefore each party has approximately $250,000 in cash.

I asked his Counsel whether the husband agreed with the entries on the balance sheet and he said that he did not. A number of issues arose.
The wife in her evidence spoke of a bank account which she had in which there was a credit balance of about €4,000 and another account in which the balance was €2,000. Converting those sums to $AUD at the rate of €1=$AUD1.6 I propose that the amount of $9,600 be shown in the balance sheet. They are assets of the wife.
The husband initially did not agree that the wife’s Irish superannuation should be valued at $108,792.35. This is a somewhat strange position analogous to the folklore relating to Leprechauns which has it that they stand still captured only so long as your gaze is fixed on them. Should your gaze be diverted even for a moment they immediately disappear. I say this given:
(1)The Court appointed an independent expert to express an opinion of value of the wife’s Irish Superannuation entitlements.
(2)Mr Henness, on the part of the husband sought to tender the expert’s report as evidence of the value of the scheme and argued when the report was objected to by Mr Givney of counsel for the wife that it should be received in evidence. It was, he said, apart from the letter from the trustees of the scheme, the only evidence which would give some guide to the value of the wife’s superannuation.
(3)Mr Givney for his part argued that the document was irrelevant to a consideration of the superannuation since it applied the basis for the valuation of Australian Superannuation under the Regulations and they did not apply to foreign schemes.
(4)I reserved my decision on the document and was about to deliver it when I was asked to delay that process. Mr Givney then withdrew his objection to the tender of the document and it was received. In addition, Mr Givney tendered the balance sheet above and said his client was now going to agree that the wife’s Irish superannuation had a value equal to the amount assessed by the independent expert.
(5)I observed to Mr Henness that there now appeared to be agreement on the value of the scheme and he indicated that notwithstanding his tender he did not agree that that value should be applied notwithstanding that in his case outline document he asserted a value of the wife’s Irish Scheme at the value placed on it by the valuer.
(6)In the circumstances the following exchange occurred between the Court and Mr Henness (Trans. pp 44-45):
“HIS HONOUR: What do you want to now say about the superannuation?
MR HENNESS: This is probably one of the tricky parts of this case. It really depends on how your Honour deals with it. There’s a number of ways your Honour could deal with the superannuation.
HIS HONOUR: You make it easy for me, Mr Henness. Tell me how I can deal with it.
MR HENNESS: The husband’s position is that what should occur is that the wife’s superannuation – that is, this particular fund, that is the teachers’ fund – should be split, the remaining funds should be, in effect, split in addition to that, if that makes any sense.
HIS HONOUR: But how can I split a fund where I have no power to split it, because it is a foreign fund?
MR HENNESS: My understanding of the fund is, your Honour, that it is splittable.
HIS HONOUR: With an Irish order from an Irish court, yes, it would seem.
MR HENNESS: If that is the case, there’s two other ways that it can be dealt with and one is to simply have the value that was put before the Court, which is probably the best evidence, even though it, in my submission, is questionable evidence. The other - - -
HIS HONOUR: My difficulty with that, Mr Henness, is that, it seems to me, unless you can point me somewhere else, to be the only guide I’ve got.
MR HENNESS: It does seem to be the only guide, your Honour; there’s no question about that.
HIS HONOUR: Not only that, it has the great advantage of having Mr Givney’s agreement, which, on the authorities, seems to be a basis for, effectively, accepting it.
MR HENNESS: The only other option that I can see, your Honour, is – and I don’t know how it would actually work – that it forms part of the 75(2) factor.
HIS HONOUR: Yes. Let’s assume it does and I can see that that might be something I do do but the question still remains of - - -
MR HENNESS: Value.
HIS HONOUR: - - - value.
MR HENNESS: I can’t put my position any higher than that, your Honour.
HIS HONOUR: Yes.
MR HENNESS: That is the evidence that is before the Court.”
I intend to accept Mr Henness’ proposal that the value as expressed by the expert, being the best evidence of value (and as Mr Henness puts it the only guide available as to its value), be included in the balance sheet and I note that Mr Givney in any event proposes that course. Otherwise it will be taken into account in a different way to the superannuation of the husband and I do not consider that an appropriate course.
(7)Some of the amendments to the balance sheet were occasioned by expenditure made without the consent of the wife from the monies held by the parties from the sale of their property in Australia in the solicitor’s trust account or for the husband’s sole use. These amounts are to be added back in the husband’s name in the balance sheet.
(8)It is proposed by the wife’s counsel that the assets should be divided into different pools. I agree with the approach in part and will deal with some of the assets differently.

I find the assets and liabilities of the parties are as follows:

($)	($)
Assets in the General Pool and Addbacks to that Pool:
· Proceeds of sale held in the husband’s solicitors trust account	343,138
· Addbacks to the balance sheet to be credited to the husband being amounts spent prior to the above balance being struck namely: · Paid Mr S (fees) $4,000 (subsequently confirmed as $4,400).	4,400
· Paid Grace Bros Removal Group being fees incurred by the husband without the consent of the wife	10,403
· Ford Falcon Motor Vehicle	5,000
· Toyota Camry Motor Vehicle	9,000
· Husband’s Inheritance said to be €105,000 being at an exchange rate of €1=$AUD1.6	168,000
· Two bank accounts in the wife’s name	9,600	549,541
Liabilities
· Nil	0	0
Nett Assets	$549,541
Superannuation Pool
· Australian Superannuation of the husband	243,883
· NGS Capital Superannuation of the wife	25,571.90
· Catholic Superannuation Retirement Fund	45,208
· Department of Education and Science (as assessed by the expert)	108,792	423,454.90
Total (including superannuation)	$972,995.90
Total value of pools known is $972,995.90 which, if the inheritance is taken out, which I propose to do, and treat it in a different way, as to division represents a net first pool of:	972,995.90
Less Inheritance	168,000	804,995.90
Net First Pool	$804,995.90

Section 79(4) contributions to date of separation

Initial Contributions

I have already above referred to the initial contributions of the parties.

Contributions to date of separation

I accept on the evidence that over the period of the marriage the financial contributions of the husband to the above pool were greater than those of the wife.
I accept the evidence that the contributions of the husband and the wife to acquisition conservation and improvement of the property of the parties or either of them other than in financial terms were equal.
I accept that on the evidence before me the contribution of the wife to the welfare of the family particularly in the role of homemaker and parent was greater than that of the husband. There were three children of the marriage and although the husband contributed to their care as best he was able, the major contribution was that of the wife.
Balancing all their contributions above and doing the best I can with the available evidence I assess the contributions to the above pool as equal in value over the whole of the marriage and until the hearing.
Accordingly, I would propose that on contributions the general pool would be divided equally.
As to the second pool comprising the husband’s inheritance, which came in later toward the end of the marriage, and it seems clear that the wife made no contribution to its acquisition and can only be said to have made some indirect contribution to its conservation, and generally otherwise in relation to the welfare of the family. True she provided assistance to the husband’s mother, but there is no evidence that the bequest was in any way occasioned or contributed to by that effort, laudable as it may have been. The amount in was not used for household purposes it seems until such time as the Irish Court directed its use for the payment of child support. I assess that the wife’s contribution should be recognised by a payment equivalent to 10% of the inheritance.

Section 79(4) contributions post separation

After separation the husband maintained the home but did not pay the mortgage on it prior to sale. He received an amount of capital in the form of a tax refund on income derived earlier. He however spent this on reasonable living expenses it seems, and the payment of debts and the cost of returning to Ireland and living there. It seems clear that for a time after the husband returned to Australia he was unemployed. The wife bore the primary cost of the children until such time as the Irish court made orders for the support of the children and attached the husband’s inheritance to serve the purpose of providing security and payment. The husband has made that contribution to the support of the children as is represented by the payment of arrears and current support ordered and secured by that court. The husband had the benefit of the occupancy of the former home and the wife had the credit for providing the utilisation of her capital for that purpose.

Conclusion based on contribution

Accordingly, based on the general pool excluding the husband’s inheritance, I assess the party’s entitlement at:

($)
Husband	402,497.95
Wife a total of	402,497.95
I deal with the husband’s inheritance on the basis that the husband will receive:
· 90% thereof and the wife 10% thereof and the net result will then be
The wife will receive a total of	$419,297.95
The husband will receive a total of	$553,697.95

Section 75(2) considerations

I note it is urged upon me that under this heading there are a number of matters for me to take into account including:
(1)The husband’s ordinary earning capacity is greater than the wife’s.
(2)The husband is presently unemployed.
(3)It is entirely possible that the husband’s inheritance will be retained as security for the payment of child support and he will not have available that amount of cash.
(4)His superannuation entitlements are a significant part of the superannuation pool and on the basis that they were left with him and not split then a large part of his entitlement would not be presently accessible to him.
(5)I am unable to make a splitting order in respect of the wife’s superannuation.
(6)There is no evidence that the wife is ill or suffering from any disease the effect of which might be to shorten her life expectancy nor is there any of the like evidence in relation to the husband’s health.
(7)The husband occupied the former matrimonial home for a period rent free whilst the wife was paying rent in Ireland. The husband did not during the period of his occupancy pay any amount to the mortgagee of the property and the debt on the mortgage increased. The husband was unemployed for part of the period in which he resided in the home. The husband did not, until ordered to pay arrears of child support, pay to the wife any amount of child support when he returned to Australia and took up residence in the former matrimonial home.
(8)That the husband has under Irish Law an obligation to pay child support until the children are aged 23 at the present rate of €80 per week per child with the present liability imposed on him being in the order of $384 per week in after tax dollars.
(9)That whilst the husband has had a greater income earning capacity than the wife he is presently unemployed and the wife has an income and she can earn on her financial statement more than she presently expends. It is noted that her income as stated by her does not include the child support payments now to be made by the husband yet she still meets her needs.
(10)That the husband received post separation an amount over $30,000 for a tax refund which he used in supporting himself meeting airfares for a return to Ireland and paying debts. It appears that the taxation refund was with respect to income earned during the period in which the parties on either story at least resided together.

Conclusion on section 75(2)

For all the reasons referred to above and in the circumstances I have come to the conclusion that a further adjustment should be made in favour of the husband in order to assist with presently available cash to him and that adjustment should be 5% of the general pool available for division excluding the husband’s inheritance.

Overall division of assets

Just and equitable

The division of assets would see the wife receive $379,048.15 worth of nett assets and the husband receive $593,947.75 worth of assets.
In the circumstances of this case I determine that result to be just and equitable.

Orders which should be made

I propose orders which will give effect to the following division.
The wife will receive:

($)	($)
Assets
· Bank Accounts in Ireland	9,600
· Irish Superannuation	108,792
· Australian Superannuation	70,779.90
· Cash calculated by reference to an entitlement to 50% of the General Pool less the husband’s inheritance	213,326.05	402,497.95
Total from the general pool	$402,497.95
· Percentage of the husband’s inheritance payable by the husband to the wife	16,800	16,800
Total from General Pool plus share on inheritance	$419,297.95
Liabilities
· Adjusting amount to pay to the husband being 5 % of the General Pool as adjustment for factors specified above	(40,249.80)	(40,249.80)
Net Assets (including superannuation)	$379,048.15

The husband will receive:

($)	($)
Assets
· Payment from wife for 75(2) adjustment	40,249.80
· Inheritance	168,000.00
· Addbacks to the balance sheet to be credited to the husband being amounts spent prior to the above balance being struck namely: paid Mr S (fees) $4,000	4,400
· Paid Grace Bros Removal Group being fees incurred by the husband without the consent of the wife	10,403
· Ford Falcon motor vehicle	5,000
· Toyota Camry motor vehicle	9,000
· Cash being proceeds of sale	129,811.95
· Superannuation	243,883	558,079.80
Total Assets (including superannuation)	$610,747.75
Liabilities
· Inheritance to the wife	(16,800)	(16,800)
Net Assets (including superannuation)	$593,947.75

Costs

Should there be any application for an order for costs then any applicant party must file and serve within 28 days of the orders herein made any such application that they might wish to make. Any application is to be accompanied by any affidavit material setting forth any evidence in chief on which they wish to rely together with any written submission in support of that application. Any respondent party must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting forth any evidence in chief on which they wish to rely. Any applicant will have a further 7 days in which to file any submission or evidence in reply.
In the event that no application is filed within the time limit there will be no order as to costs.

I certify that the preceding one hundred and twenty four paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 19 September 2008

[2008] FamCA 781

19 September 2008

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Family Law

Equity & Trusts

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