HARDY & MARKSON
[2011] FMCAfam 1061
•20 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARDY & MARKSON | [2011] FMCAfam 1061 |
| FAMILY LAW – Property division – wife’s inheritance forms bulk of property pool – 9 year relationship – one child – husband’s financial and non-financial contributions not to be given token weight – husband and wife both stay at home to raise their daughter – asset by asset or global approach – wife seeks to assess contributions on two pools and quarantine her inheritance from s.79 property division – global approach adopted – s.79 gender neutral – change of schooling. |
| Family Law Act 1975, ss.60 CC, 65 DAA, 75(2), 79 |
C & C (2005) 33 Fam LR 414
In the Marriage of Hickey (2003) FLC 93-143
Mallet and Mallet (1984) 156 CLR (High Court)
In the Marriage of Norbis (1986) FLC 91-712 161 CLR 513 (High Court)
In the Marriage of Lee Steer & Lee Steer (1985) FLC 91-626 (Full Court)
Clauson v Clauson (1995) FLC 92-595 (Full Court)
Pierce and Pierce (1999) FLC 92-844
Money v Money (1994) FLC 92-485 at 81,054 (Full Court)
Williams & Williams [2007] FamCA 313 (Full Court)
Farmer & Bramley (2000) FLC 93-060
Figgins & Figgins (2002) FLC 93-122
Norman & Norman [2010] FamCAFC 66
AJO v GRO (2005) FLC 93-218
Pappas & Pappas [2008] FMCAfam 790
C & C [1998] FamCA 143
RE G: Children’s Schooling [2000] FamCA 462 (Full Court)
R and R Children’s Wishes (2000) FLC 93-000
McMahon and McMahon (1995) FLC 92-606
H & W (1995) 18 FamLR 788
Kennon and Kennon (1997) FLC 92-757
Norbis & Norbis (1986) FLC 91-712
Albany & Albany (1988) FLC 90-905
Marzorski & Albright [2007] FamCA 520
Napthali and Napthali (1989) FLC 92-021
Pastrikos & Pastrikos (1980) FLC 90-897
Kowaliw & Kowaliw (1981) FLC 91-092
NHC & RCH [2004] FamCA 633
Browne and Green (1999) FLC 92-873
GBT & BJT [2005] FamCA 683
| Applicant: | MR HARDY |
| Respondent: | MS MARKSON |
| File Number: | CSC 508 of 2009 |
| Judgment of: | Willis FM |
| Hearing dates: | 9 & 10 February 2011 |
| Date of Last Submission: | 18 May 2011 |
| Delivered at: | Cairns |
| Delivered on: | 20 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | AMR Legal |
| Counsel for the Respondent: | Mr McPherson |
| Solicitors for the Respondent: | MacDonnells Law |
ORDERS
PROPERTY MATTERS
IT IS ORDERED THAT:
The Wife is to pay to the Husband:
(a)The sum of $393,012.00 no later than 45 days from the date of this Order, such sum representing 10% of the property pool described at paragraph 72 of this judgment less the items in the husband’s possession being the Toyota vehicle at $35,450.00 and the husband’s superannuation of $24,115.00;
And further the Wife is to pay the Husband a further sum being:
(b)10% of the sale proceeds of the following items, upon sale of each item, less any advertising costs.
(i)The [V] business, Ms Markson & Mr Hardy trading as [J];
(ii)The 2006 Opalite Serenity Caravan;
(iii)The 2002 Whitley Cruiser 770 Boat.
Each of the parties are to do all acts and things necessary to ensure an early sale of the items referred to in Order 1 (b) herein. Each party is to ensure that the process of sale and receipt of sale proceeds is conducted in an open and transparent manner that any sale is an arms length transaction, and each is to account to the other for the sale proceeds that come into their possession and division of funds pursuant to the terms of this Order. In the event as to any dispute as to the marketing method or sale price, the Wife is appointed trustee for sale and she has the duties and obligations of a trustee in all respects.
Upon the Wife paying to the Husband the sum of $393,012.00 in Order 1 (a) herein, the Husband is to forthwith vacate the real property situated at Property F, [F] in the State of Queensland, more particularly described in Title Reference [omitted] (“Property F”) NOTING that the husband has a minimum time to continue to occupy the Property F property of 21 days from the date of this Order.
Upon the Wife making the payment to the husband pursuant to Order 1 (a) and (b) herein, then;
(a)The Husband will relinquish all claims, demands and interest of whatsoever kind (both legal and beneficial) in the property of the wife which she retains pursuant to the terms of this Order, including his interest in the Partnership of Ms Markson and Mr Hardy trading as [J] and its assets; [D] Pty. Ltd and its assets; [S] Pty. Ltd and its assets.
(b)The Wife is solely entitled, to the exclusion of the husband, to the following property:
(i)The Property F property;
(ii)The real property situate at Property P, [P] in the State of Queensland, being more particularly described in Title Reference [omitted]; together with all liability to Westpac pursuant to the home loan secured by registered mortgage over such property and properties described in subparagraph (iii) below;
(iii)The real property situate at Property V, [P] in the State of Queensland, being more particularly described in Title Reference [omitted];
(iv)The real properties situate at Unit 5, 6, 7 and 10 and 37 Property W, in the State of Victoria, being more particularly described in Certificates of Title Volume [omitted];
(v)All interest in the time share unit situate in Bali, Indonesia;
(vi)The Wife’s interest in [D] Pty Ltd CAN [omitted], the assets and liabilities of which include but are not limited to:
a.The real properties situate at Unit 4 and 5, Property C in the State of Queensland;
b.The sale proceeds of the real property situate at Property E in the State of Victoria;
c.The 2009 Range Rover motor vehicle, registration [omitted];
d.The liability to St George Finance Ltd secured by the Good mortgage facility, Account No [omitted], over the said Range Rover motor vehicle;
(vii)The Wife’s interest in [S] Pty Ltd CAN [omitted], the assets and liabilities of which include but are not limited to:
a.The sale proceeds of real properties situate at Units 1, 2, 3 and 4 Property G in the State of Victoria.
(viii)The share portfolio in the Wife’s name;
(ix)The 1984 Porsche, unregistered in the Wife’s possession.
The Wife will cause to be transferred to the husband, the 2007 Toyota Landcruiser motor vehicle (registered in the name of [D] Pty. Ltd and in the possession of the husband). The transfer will be at the cost of the husband (but not to include any tax payable by [D] associated with the transfer) NOTING that the vehicle is to be transferred encumbrance free. THEREAFTER the husband is solely responsible for all claims of whatsoever kind which arise in relation to his ownership of the vehicle and the husband will indemnify [D] Pty. Ltd against all liabilities and claims of whatsoever kind.
The Husband is to return to the Wife the following items within fourteen days of the date of this Order:
(a)All papers and documents belonging to the Wife’s father.
(b)Wife’s Father’s tools:
(i)Blue timber box of carpentry tools;
(ii)Ladders – Long ladder and step ladder;
(iii)Hand saws;
(iv)Shovels – long and short;
(c)Chainsaw;
(d)Ride on mower;
(e)[X]’s motor bike;
(f)Wife’s Father’s, Mother’s and Grandmother’s items:
(i)Crystal 2 x vases, Wine glasses, flutes, brandy balloons;
(ii)Silver wine buckets x 2;
(g)Boxes of Father’s personal belongings.
(h)Contents removed from Caravan sheets, pillows, towels, power cord, chairs, table, blankets, and doonas.
(i)Engine for boat – tender.
(j)Dive gear – BCD, Regulator, Computer, etc.
Unless otherwise specified in these Orders:
(a)Each party is solely entitled, to the exclusion of the other, to all other property of whatsoever nature and kind, including choses in action, held by such party as at the date of these Orders, and for that purpose:
(i)Bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof;
(ii)Insurance policies are deemed to be in the possession of the beneficiary thereof;
(iii)Superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlement;
(b)Each party be solely liable for, and will indemnify the other against, any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(c)Each party is solely liable for all debts held in the name of that party.
Each party will do all acts and things and sign all documents necessary to give effect to these Orders by the time specified in these Orders, and failing specification of time, within a reasonable time. In the event either party fails to do so, pursuant to section 106A of the Family Law Act 1975 (Cth) the Registrar of the Federal Magistrates Court of Australia, Cairns Registry is hereby appointed to execute all documents in the name of the defaulting party and to do all acts necessary to give validity and operation to such documents as to give effect to these Orders.
Liberty to apply in relation to the workings of these Orders.
CHILD MATTERS
The following Orders are to be read in conjunction with the Parenting Orders made on 8 February 2011.
IT IS ORDERED THAT:
Schooling
The child [X] born [in] 2003 (“the child”) is to attend the [M] Campus of [T] School for her remaining primary school years and each of the parties are to do all acts and things and sign all documents to facilitate her enrolment.
Changeovers
All changeovers pursuant to these Orders are to occur at school on a school day, and on a non-school day at [omitted] Playground.
Christmas Day
The child is to spend from 12 noon Christmas Eve until 2:00 pm Christmas Day with the Father in 2011 and each alternate year thereafter and with the Mother from 12 noon Christmas Eve until 2.00pm Christmas Day in 2012 and each alternate year thereafter.
Overseas Travel/ Passport for the Child
Each party do all acts and things and sign all documents to enable a passport to issue for the child. Upon the passport issuing, each parent is to do all acts and things to ensure the delivery up of the passport to the Registry of the Federal Magistrates Court in Cairns where it is to be held and released to either party only pursuant to an Order of this Court, or the written agreement of each of the parties, whose physical and joint presence will be required at the Registry, prior to the passport being released.
That each party is permitted to travel within Australia and to an overseas destination during any time that the child spends with that parent pursuant to the terms of the parenting Orders made in this matter.
In the event that the parties are unable to agree to a specific proposed overseas trip for the child, they are to first attend at dispute resolution in an endeavour to resolve the matter, prior to filing an application.
IT IS NOTED that publication of this judgment under the pseudonym Hardy & Markson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
CSC 508 of 2009
| MR HARDY |
Applicant
And
| MS MARKSON |
Respondent
REASONS FOR JUDGMENT
This is an application primarily in relation to the division of property following a marriage breakdown between the applicant Mr Hardy (“the husband”) and respondent Ms Markson (“the wife”).
The parties’ relationship lasted nine years. There is one child of the marriage; [X] aged almost 8 at the time of trial. [X] has been living in a shared arrangement between her parents post separation and her future living arrangements are agreed to pursuant to Consent Orders with several discrete issues yet to be determined.
In relation to their property division the parties are, however, completely polarised in their positions as to how the division of the property should occur under section 79 of the Family Law Act 1975 as amended.
There is agreement between the parties that the financial contributions in this matter were overwhelmingly made by the wife. The wife inherited her father’s estate prior to meeting the husband, however, it did not vest into the control of the wife until she turned 35. The estate vested directly to the wife three months after marriage to the husband.
It is agreed that the asset pool at the time of separation and trial primarily included the bulk of the estate that the wife inherited, together with assets acquired during the marriage.
Mr Betts on behalf of the husband seeks an Order for up to 15% of the total property pool. Mr Betts submits that the proper approach to achieve justice and equity is to approach the division on a global basis on the total property pool, worth approximately $4.5 million. This would result in a payment to the husband of around $450,000.00 minus the value of items retained by him. Mr Betts contends that the husband has made financial and non-financial contributions over the nine year marriage, though he concedes that the wife’s financial contributions significantly outweigh those of the husband.
Mr McPherson of Counsel on behalf of the wife approaches the division on an asset by asset approach, dividing the assets into two pools. One pool consists only of items acquired during the marriage period. On behalf of the wife, he seeks an Order that the husband receive 10% of one item in that pool being the house at Property F, [F] valued at $530,000.00, ($53,000.00) plus a [[V] business equipment omitted] worth approximately $22,610 and a Toyota Landcruiser $35,450.00, in all a total of $116,060.00. That pool is worth about $687,000.00 and the payment proposed to the husband represents 16.15% of those assets. It is contended on behalf of the wife that the division of 16.5% to the husband and 83.5% to the wife acknowledges the wife’s direct financial contribution to the acquisition, preservation and maintenance of the assets in this pool, (through the funds received from her inheritance) and also acknowledges the husband’s financial contributions which were said to be insignificant and the non-financial contributions of the husband which the wife contends were equal to hers.
The second pool consists of assets owned by the wife at the time of the marriage, or acquired post separation. Mr McPherson says those assets are quarantined and placed into the second pool as that pool represents the wife’s inheritance. Mr McPherson contends that the husband has made little to no contributions to the second pool as those assets were part of or derived from the wife’s substantial inheritance the bulk of which was received in 2002, three months after the marriage and six years prior to the end of this nine year relationship. The second pool consists of the remainder of the wife’s assets originating from her inheritance, totalling around $3.89 million. In regard to s.75(2) factors Mr McPherson says that they favour the wife.
The wife’s balance sheet is attached to the written submissions prepared on her behalf. The total assets are shown as $4,587,382.00 (“the total asset pool”). On page 3 of the document under the heading “List of items in Pool to be Divided” (the first pool) the property acquired during the marriage at Property F is listed together with other various assets totalling $687.600.00. The second pool consists of all assets, minus the assets in the first pool.
By adding the wife’s entitlement to the first and second pools together, the wife will receive over $4.4 million and the husband will receive $111,060.00.
Whilst the parties are in general agreement about what assets exist at the time of trial however, there is disagreement about the treatment of a sum of around $180,000 to $200,000.00 unaccounted for by the wife and being funds spent over 16 months post separation. The husband seeks to add back an amount of $200,000.00 into the asset pool submitting that this is a significant non-accounting of funds which has depleted the asset pool.
The wife is opposed to that course it being submitted on her behalf that the funds came out of the asset pool that is quarantined and therefore it is not an issue which the Court should take notice in determining the property division.
In relation to children’s matters, the parties have agreed upon Consent Orders in relation to the parenting arrangements for the only child of their marriage, [X], born [in] 2003, however, there is disagreement about which school [X] is to attend. The wife seeks orders that the child attend the [T] Campus of [T] School primarily as it is closer to her home. The husband is opposed to the child changing schools, and seeks an Order that she remain at the [R] campus of the same school, [T] School, where she has been attending since she commenced her schooling and which is about an equal distance away from each of their homes.
There is also disagreement about the precise times that the Christmas Day contact should end, the wife saying 12 noon, the husband saying 2pm. The parties are also unable to agree upon the place handovers are to occur if they do not occur at school. The husband contends that the handovers should occur at [omitted] Playground in Cairns as an agreed location. The wife submits that she is content with [omitted] Playground in Cairns whilst the husband resides in [F], but if he purchases a home elsewhere, she would prefer to have an Order in place that says they meet at an agreed half way point. Having made that position clear, the wife also said my answer is halfway between where we’re living if he’s not living past [F]. If he’s living in Townsville, yes (to [omitted] Playground).[1]
[1] Transcript page 91, 9/2/11 – line 5.
Background
The parties met in 2000 and commenced living together during the same year, married [in] 2002 and separated on 7 June 2009. Their relationship was therefore 9 years in total. At the time of trial, the wife was aged 42 and the husband 36.
The wife was aged only 27 when her father passed away. He left a substantial estate and she received an immediate bequest of $100,000.00 with an income of around $35,000.00 per annum. The wife says she was responsible, with the other executors, for managing her inherited estate’s investments. The residue of her father’s estate was held for the wife upon trust until she attained the age of 35.
At the time the parties met in 2000 the wife was aged around 33 and the husband approximately 27. The wife who lived in Geelong met the husband when she was holidaying in tropical Far North [details omitted]. The husband was a [occupation omitted] and worked on and off a week at a time. The wife decided fairly quickly that she would like to live in the tropics and pursue a relationship with the husband. She moved to [omitted] and bought an apartment in “Property V” and the husband moved in with her shortly after, in the year 2000. Property V is around 36 kilometres north of the Cairns CBD. The wife used $50,000.00 of her inheritance money and borrowed the balance of the purchase price of $277,500.00 from the estate to buy the unit. No repayments were required to be made under the loan.
In February 2002, prior to marriage the parties acquired a property of nine acres in the midst of rain forest at [F] which had a residence on it. [F] is about 40 kilometres south of the Cairns CBD. The property had renovations carried out prior to the parties moving in. The Property F property was purchased as tenants in common, in shares of three fifths to the wife and two fifths to the husband, this was organised by the wife to acknowledge that the parties were married. The husband did not contribute financially to the purchase price. The parties lived at this property for most of their relationship.
In July 2002 the wife advised her co-executors of her forthcoming marriage in September 2002 and requested funds of $25,000.00 to pay for the wedding and honeymoon. The funds were provided. At the same time, the wife requested a pre-nuptial agreement be arranged, making sure that my future husband will get nothing from marrying me in the event of divorce[2]. At that stage the wife had about 5 months to go until she turned 35 and received the bulk of her father’s estate. The agreement was drawn up however the wife said she did not wish to pay for a lawyer for the husband and as there was doubt as to the enforceability of the agreement, the wife did not persist with having the agreement formalised. The husband sold the assets he owned, a boat and a car, to help pay the deposit on the engagement and wedding rings. He contributed about $6,000.00.
[2] Wife’s affidavit paragraph 19.
The wife turned 35 three months into her marriage in 2002. At that time her father’s estate vested. Some property was transferred into the wife’s name including shares, and five residential units at Property W in [W] Victoria. Other property remained in the two companies which her father had owned and controlled until his death, namely [D] Pty. Ltd and [S] Pty. Ltd. The wife became the sole director, secretary and the sole shareholder of both these companies and has remained so. The wife says she has solely managed all the investments. Rental income has been received from the real properties and has been directed to pay the outgoings including letting agent’s fees and expenses from that income. In December 2002 the mortgages that had been held by her father’s estate over Property V and Property F were released and the debts forgiven.
Around that time funds of about $180,000.00 from the estate was spent on improvements to the Property F property.
The one child of the marriage, [X] was born [in] 2003 in Cairns and was aged nearly 8 at the time of the trial.
When [X] was born in 2003 the wife says she asked the husband to give up his own work for about a year to help her look after the new baby as she had no family to help her. The husband was paid $300.00 per week from the wife’s company [D] Pty. Ltd to stay home and assist with child rearing and house cleaning instead of continuing with his own work outside the home. The wife paid most of the household expenses and other items needed around the house, holidays, a boat and caravan and to be the primary financial provider for the family.
In an attempt to provide work for the husband and income for the marriage, two business ventures were attempted: A [L] business and a [V] business. The latter was purchased in about 2006. It seems that it was intended that the husband operate the day to day workings of this business. This was intended to make money from [omitted]. $22,610.00 was paid for the business which seems to have consisted of ten [equipment omitted]. Minimal income seems to have been derived from this source. A partnership was set out of Ms Markson and
Mr Hardy Partnership for this business for accounting purposes. The wife seemed instrumental in finding this business for sale through a friend. A Toyota Landcruiser was purchased at the same time as the business vehicle.
In late January 2008 the wife decided to stop paying the husband the $300.00 per week and encouraged the husband to actively seek employment. By this time it seems that the wife was becoming disappointed with the husband for not obtaining work outside the home and for not contributing enough financially to the relationship.
In March 2008, a [L] business was set up, with the purchase of an [equipment omitted] for $10,000.00, a [omitted] and tools and equipment which the wife had inherited from her father. The husband was to work in the [L] business known as “[G].” This business which the husband worked in for periods of time during the week, seems to have generated little income. It does not seem to have operated at a level anything like a full time business.
In March 2008 the wife’s funds were used to purchase a time share unit in Bali costing around $8,500.
In December 2008, about six months prior to separation, the wife applied for a casual position for the husband at [omitted] north of Cairns. The husband was offered work at three days per week, took the job and commenced receiving regular income.
At separation in June 2009 the wife moved out of the Property F property and into her apartment at Property V which had been rented out during their relationship, the rental going back into the estate
The husband has remained living in the Property F home. He is hopeful of retaining the Property F property as part of his settlement. Failing that he says he will live in the [O] area or close to Property F. F, according to the father, has a population of a few hundred people and is about 40 kilometres from his work in Cairns and it has “a pub and a caravan park” and not much more.
In August 2009 after separation, the wife acquired a new home at Property P. Funds were borrowed with a mortgage and security over two of the mother’s home units in Victoria which were part of her father’s estate.
In October 2009, post separation, the wife sold four units in Property G which had been owned by her company, [S] Pty. Ltd, inherited from her father. The gross sale price was $950,557.00 from which expenses were deducted for commissions and marketing. The balance of that account at time of swearing her trial affidavit was $505,000.00.
In August 2010 the wife sold a commercial property which had been inherited at Property E in Victoria. The property was sold for $737,500.00 from which was deducted $73,500.00 in marketing and agent’s expenses. A capital gains tax will be payable.
Post separation it seems that the mother has expended some $220,000.00 on living expenses in two and a half years. The wife says that at least $80,000.00 of this was on legal fees.
The parties divorced on 22 September 2010.
The parties are agreed that [X] is to live with the parties in a shared living arrangement. Consent Orders are agreed to, subject to the remaining discrete issues. [X] lives with the father during school terms in week 1 from 5:00 pm on Saturday until the commencement of school Tuesday, in week 2, from 9:00 am Sunday until the commencement of school Wednesday, in week 3, from 5:00 pm on Saturday until the commencement of school on Tuesday, in week 4, from 4:00 pm on Sunday until the commencement of school on Wednesday and at all other times as may be agreed between the parties. The parties also agreed to share half of the school holidays.
The mother does not work in the paid work force, but continues to work from home in managing her investments and parenting [X]. The father has obtained full time work as a [omitted] post separation. The father has remained living in the Property F property after separation. The property is unencumbered and the father has paid the rates and outgoings post-separation and other than that, he has lived rent free. The wife initially moved back into her apartment at Property V, [P], and now lives in her newly acquired home at Property P, [P], the liability of which seems to be greater than its agreed value having regard to the agreed asset pool. Neither party has re-partnered, though the mother has a boyfriend.
The Law
In this matter I am required to follow the approach to property division set out in various authorities such as C & C (2005) 33 Fam LR 414; In the Marriage of Hickey (2003) FLC 93-143 Those authorities identify a four step approach which is to: first determine the pool of assets and liabilities; then evaluate each of the parties’ financial and non-financial contributions during the marriage and post separation: determine if that contribution figure requires adjustment in light of the relevant s.75(2) factors: and finally to consider whether the proposed result is just and equitable in all of the circumstances having regard to the actual result in dollar terms.
In this matter given that there are quite polarised views about the approach that I should adopt to this property division, I have had regard to the authorities regarding the global approach and the asset by asset approach to contributions in property division under the Family Law Act such as Mallet and Mallet (1984) 156 CLR (High Court) ; In the Marriage of Norbis (1986) FLC 91-712 161 CLR 513 (High Court); In the marriage of Lenehan (1987) FLC 91-814; In the Marriage of Lee Steer & Lee Steer (1985) FLC 91-626 (Full Court); The wife has made significant financial contribution at the commencement of the relationship. As to the weight to be given to her initial contributions, I have had regard to Pierce and Pierce (1999) FLC 92-844; Money v Money (1994) FLC 92-485 at 81,054: (Full Court); Cabbell & Cabbell [2009] FamCAFC 205 (Full Court); Williams & Williams [2007] FamCA 313 (Full Court) which refers to Bilous v Mudaliar (2006) 35 Fam LR 55 (Ipp JA with whom Giles and McColl JJA agreed); Farmer & Bramley (2000) FLC 93-060 (Justice Finn) approved by the Full Court in Figgins & Figgins (2002) FLC 93-122 paragraphs 74 and 75) and Norman & Norman [2010] FamCAFC 66. In relation to the add back argument I have had regard to cases including AJO v GRO (2005) FLC 93-218;
Mr McPherson of Counsel refers me to a decision of Federal Magistrate Brown in Pappas & Pappas [2008] FMCAfam 790 as being a decision similar to the matter in question and asks that I adopt the approach taken by Federal Magistrate Brown to the division of assets.
In relation to the issue of the child’s schooling, I have had regard to the principles referred to in RE G: Children’s Schooling [2000] FamCA 462 (Full Court); R and R Children’s Wishes (2000) FLC 93-000 (Bryant CFM as she then was). As it is a parenting matter I will have regard to the relevant section 60 CC considerations and the two primary considerations under the Family Law Act 1975. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).’
The Hearing – Evidence
The husband and wife gave evidence and were cross examined.
Mr P’s report was admitted without challenge and he was not required for cross examination.
The parties relied on their documents as read into the record and shown in their case outlines.
Each of the parties was represented by Counsel during the hearing. I have had regard to all of the evidence and the exhibits.
I have read the written submissions of Counsel and taken their oral submissions into account. I thank them for their written submissions and their solicitors for the draft orders.
Where a statement of fact is referred to in these reasons, it represents a finding unless stated otherwise.
Witnesses
The Husband
The husband lead a fairly uncomplicated and carefree existence up to meeting the wife [details omitted] where he was worked as [omitted] for seven days on and seven days off. [Details omitted.] The husband did not have any solid financial backing or commitments when he met the wife and this is not unexpected given that he was only 26 years old. He was working seven days on seven days off all year. He had a car and a boat.
The husband was not an impressive witness in that he had a very poor recall, his thinking processes were slow, he became easily confused, he had trouble expressing himself and he seemed unusually vague about the relevant years or dates that incidents occurred. It seems he was daunted by the Court experience. Many questions had to be repeated as will be seen in the transcript. Sometimes he said it was because he did not hear the question. On other occasions, there seemed to be no obvious reason why the question had to be repeated. I accept as submitted by his own Counsel, that at least one of the propositions put to the husband by Counsel for the wife (for example about his alleged income of $100,000 and his tax returns) under cross examination was inaccurate and subsequently were conceded by Counsel for the wife as being so. This is always an unfortunate occurrence and this witness did not need to be confused any further. Generally I consider that the husband was defensive, though he tried to answer the questions to the best of his ability. He had only a basic understanding of financial matters. His answers lacked precision.
It is clear that there is ongoing animosity between he and the wife and I am satisfied that the husband holds strong resentment towards the wife and that it is reciprocated. Each makes criticisms of the other for their non-financial efforts during the marriage.
The Wife
The wife was generally a more alert and engaging witness.
There were parts of the wife’s evidence that were, however, unsatisfactory. The wife’s version of events about her visit to the matrimonial home on which she happened to take a friend who happened to have some bolt cutters with her so that she could remove the caravan, boat and other items, was in my view, an untruthful account of events. I consider that the wife attended the house earlier than proposed with the view of removing the caravan, the boat, and anything else she could. I do not accept that it was pure co-incidence that on the same day that she entered the former matrimonial home use the bathroom on that day, that some other person went into the bedroom, took and burnt some of the husband’s American currency and took the father’s spear guns. The issue of the property such as boats and caravans has become somewhat of a power struggle between these two parties since separation and I did not accept the wife’s evidence about her lack of involvement in these matters.
The wife was not prepared to make admissions against her own interest unless she was pressed to do so as was the case with her reluctance to admit that she had told Mr P that the husband got paid pocket money of $300.00 per week.
The wife considers that she manages the estate she inherited; however, my impression was that whilst she had a general understanding of the management of her estate at some levels, her understanding of business matters was basic. She appeared not to understand the meaning or notion of “goodwill” in relation to the [V] business, she did not really understand the notion that the payment of $300.00 per week paid by [D] Pty. Ltd would have been an expense in the tax returns of [D] for the five years.
The wife was unable to recall with any degree of precision the significant spending she had engaged in post separation from the sale proceeds of her inherited units in Property G, a figure of around $320,000.00. No real estate was purchased, the wife said no one else spent the money, only herself, and no other major purchases were made. This is around $12,000.00 per month for 16 months. In this time the wife also received about $100,000.00 per annum from her companies. When asked whether she could say where the balance of the funds had gone, the wife replied not off hand no. My impression was that the wife did not realize she had spent this much money in 16 months and is somewhat indifferent about her own expenditure but she is very mindful of the funds she paid to the husband.
To compound this issue no documents were provided by way of disclosure in relation to this expenditure with the wife saying that such documents were with her accountant months prior to the trial, and despite her ringing him every week, my lawyer in Victoria just has not got the paperwork that we need to complete. I regard the wife’s evidence on this subject as a totally inadequate, she had an opportunity to provide documents to the Court to demonstrate what the funds were expended upon and she failed to do so. I am not satisfied that the wife has used her best efforts to comply with her duty of disclosure in relation to this issue.
In relation to the value of the wife’s share portfolio, the wife swore to a financial statement the day prior to the trial adopting the value of shares from a previous financial statement. In fact, the shares had risen by $75,000.00. I accept the submission of Mr Betts that it ought not to have been up to the husband to point this out to the wife. The wife in my view was decidedly inactive in putting forward the current value of the shares as it suited her position. Her response to Counsel’s question as to whether she was aware her shares had gone up by $75,000.00 was, “No. I wasn’t aware and thank you for letting me know.”[3] I regard this answer as flippant and disingenuous.
[3] Transcript p 109, 10/2/11 –line 25-30.
The wife’s case was conducted on the basis that the husband didn’t make any serious effort to get employment basically because he was not motivated to do so, that he was just happy to take the $300.00 per week. The wife was reluctant to admit the husband’s financial or non-financial contributions. Her answers were often tailored to diminish the husband’s efforts in all respects, whether it was his work outside the home or around the home, raising the child or trying to set up business ventures such as [L]. Her answers, like the husband’s, were generally tinged with resentment.
Step 1 – Determine the value of the assets - Identifying the Asset Pool
In relation to the asset pool, and in addressing the first step in the four step approach it is necessary for me to determine the asset pool.
As to the list of assets and liabilities as at the date of the trial, in what I will refer to as the total asset pool (noting that specified items crossed out are to be sold and others are to be deleted as explained elsewhere), each party generally agrees that the document tendered during submissions and largely repeated below represents the assets, liabilities of each or either of the parties subject to one issue: The proposed “add back”.
I shall first turn to the issue of the proposed “add back”.
The proposed “add back”
As I have stated elsewhere in these reasons, the post separation sale proceeds which are, identified in the wife’s material[4] were approximately $950,000.00 gross from which agent’s commission and marketing expenses were deducted. The balance as at January 2011 was $504,000.00 (with $117,000.00 in other accounts), so $621,000.00 remains from an initial figure of $950,000.00, a reduction of $329,000.00. Cross examination of the wife, as can be seen in the transcript, was thorough and the wife had every opportunity to explain how the funds were expended in the sixteen months between the sale and the balance shown in her affidavit.[5] The wife could recall that that $80,000.00 was withdrawn for her own family law legal fees, other funds of around $15,000.00 paid for BAS and $50,000 for one credit card payment, a total $145,000.00. Deducting that sum from $329,000.00 leaves a balance of $184,000.00 unexplained. Over this period the wife continued to receive the $100,000.00 per annum paid to her from her companies.
[4] Paragraph 42.
[5] Page 156 line 30, 10/2/11 and onwards.
Some of the shortfall must have gone in commissions and agent’s expenses, though the carefully worded affidavit on this issue makes no mention of the net proceeds.[6] The payment of a credit card of $50,000.00 was clearly expenditure incurred solely by the wife post separation, taken from sale proceeds of an asset that was owned at the time of separation. I am aware from the authorities that legal fees paid from joint funds can be treated as an add back,[7] and add backs can be considered where there has been a premature distribution of matrimonial assets and also in circumstances referred to in Kowaliw and Kowaliw. [8]
[6] Paragraph 42 of the wife’s trial affidavit.
[7] NHC & RCH [2004] FamCA 633.
[8] (1981) FLC 91-092 at 76,644.
The reduction in the sale proceeds, have been spent wholly by the wife, post separation. The wife is not able to account for these funds and has produced no documentation supporting her expenditure.
I consider in all of the circumstances that it is preferable to add back the legal fees of $80,000.00 taken from the proceeds of sale of an asset which existed at separation, in line with the rationale in the authorities[9]. Any contribution to those assets is of course a separate question, which I will consider later in these reasons.
[9] AJO v GRO (2005) FLC 93-218; NHC & RCH (2004) FLC 93-214.
As to the remainder of the funds used by the wife from the sale proceeds which have depleted the property pool for her own benefit. I consider that in all of the circumstances that those funds are more appropriately taken into account in a general way when evaluating the contributions of each of the parties[10]. I consider that the amount involved is likely around $180,000.00 rather than the $240,000.00 suggested by Mr Betts, as set out in paragraph 64 herein.
[10] Polonnius & York [2010] Fam CAFC 228.
Step 1: Assets, property, financial resources and liabilities of the parties
I turn now to the identification of the property pool which will now include the add back of $80,000.00. At the commencement of the trial the parties were still in disagreement about the values of certain assets (despite Orders being made which have not been complied with to appoint a single expert in regard to any asset about which there was dispute as to its value, long prior to the trial), it was agreed during the trial that those assets about which there was still dispute would be sold and the proceeds divided on the relevant percentage. They included a caravan, boat and [V] business equipment. It was also agreed to take the “contents” of each of the parties as shown in the asset schedule out of the equation.[11] There remains a list of contents that the wife asks be returned to her.
[11] Transcript 18 May 2011, lines 0-45 page 35 and page 36 lines 10-40.
The agreed asset pool below lists those items subsequently agreed to be excluded and or sold. Those items are shown with a line through and their respective values deleted from the figures. The items that are going to be sold, are marked with an “E” beside the value, simply to indicate that this is an estimate. In doing this I am aware that the sale prices may be different; for instance, the wife has listed the boat for half its purchase price and it may well sell for more or less. As the submissions by each Counsel were made in the context of the property pool being valued at somewhere near the total shown on the agreed pool I have left the values as shown (albeit that some items have been crossed out and will be sold as indicated) to give a general understanding of the approximate value of the assets and liabilities which was the context in which the trial submissions were made.
I have shifted all of the liabilities so as they appear under “liabilities” and not (as was the case on the document provided) some liabilities under assets and others under liabilities.
The total value of the assets, liabilities and superannuation on the table below is $4,525,772.00, excluding those items shown on the asset schedule with a line through them.
| ASSETS | In whose name | Value |
| Property F | W3/5 H2/5 | $530,000.00 |
| Property P | W | $775,000.00 |
| Property V | W | $530,000.00 |
| Units 5, 6, 7 & 10 Property W, Victoria | W | $842,000.00 |
| Unit 4, Property C | [D] P/L | $310,000.00 |
| Unit 5, Property C | [D] P/L | $310,000.00 |
| Sale proceeds of Property E | [D] P/L | E$664,000.00 |
| Bali Time Share unit – 1 week per two years (full interest pp $7,600 in 2008) | W ½ H ½ | $3,800.00 |
| Bali Time Share unit (same unit) | W ½ H ½ | $3,800.00 |
| [S] Pty Ltd Bank Account (balance sale proceeds of Units 1, 2, 3, 4 at Property G, Sold in August/ Sept 2009) | [S] P/L | $621,000.00 |
| Net Real Estate: | $4,589,600.00 | |
| Share portfolio | W | $454,381.00 |
|
|
|
|
| [G] | H | $0 |
| 2007 Toyota Landcruiser (H’s possession) | [D] P/L | $35,450.00 |
| 2009 Range Rover | [D] P/L | $73,000.00 |
| 1984 Porche – unregistered | W | E$3,000.00 |
|
|
|
|
|
|
|
|
| [L] equipment (pp $10,000.00) | [S] P/L | E$6,000.00 |
| [L] equipment (new) | [S] P/L | E$2,000.00 |
| [L] equipment | [S] P/L | E$1,500.00 |
| [L] equipment (pp $10,000.00) | [D] P/L | E$8,000.00 |
| [L] equipment | H | E$500.00 |
| [L] equipment (pp $800.00) | W | E$500.00 |
| [L] equipment | W | E$300.00 |
| Office Furniture (Apple Computers/ office furniture) | [S] P/L | E$3,000.00 |
| Jewellery | W | E$20,000.00 |
|
|
|
|
|
|
|
|
|
Removed from the pool by agreement |
|
|
| Wife’s grandmother’s items | W | Nominal |
| Wife’s father’s personal items | W | Nominal |
| Add back - Wife’s legal fees | $80,000.00 | |
| Total Assets: | $ 687,631.00 | |
| Total Real Estate: | $4,589,600.00 | |
| TOTAL REAL ESTATE SHARES & OTHER ASSETS | $5,277,231.00 | |
| LIABILITIES | ||
| St George Goods Mortgage – Range Rover | [D] P/L | $67,377 |
| CGT Liability on Property E Sale (to be determined) | W | NK |
| Westpac Altitude Platinum Card – at separation | W | $9,346.00 |
| NAB Amex (at separation) | W | $8,000.00 |
| ANZ Visa (at separation) | W | $4,839.00 |
| Westpac Mortgage – Property P & 2 units at Property W | $825,000.00 | |
| TOTAL LIABILITIES | $914,562.00 | |
| Nett Asset Pool without superannuation | $4,362,669.00 | |
SUPERANNUATION: | ||
[1] | W | $138,988.00 |
[2] | H | $24,115.00 |
| Total Super: | $163,103.00 | |
TOTAL ASSETS OF ALL DESCRIPTION | $4,525,772.00 |
Step 2: The financial and non-financial contributions of each of the parties
Initial Contributions
It is not contested that the wife’s financial contributions are overwhelming in this matter.
Upon meeting the wife and commencing a relationship with her, the husband maintained this employment working as a [omitted] which meant he was away every second week. In July 2001 he enrolled at TAFE to study [omitted] Certificate and in August 2001 he left his employment with [omitted], found work as a [omitted] and then commenced work as a [omitted] in October or November 2001. He worked five days a week, usually 7am to 4pm. This employment seems to have lasted until July 2002, when he started work with [omitted]. He stayed working until about March 2003 when the wife asked him to give up that work to stay at home and help look after their new born baby, and do the housework and enable the wife to look after her companies.[12]
[12] Page 7, paragraph 63 Husband’s trial affidavit.
The husband had a Toyota Land Rover and a fibreglass half cabin boat.[13]
[13] Transcript page 39, line 45 – 9/2/11.
The wife introduced assets including an apartment at Property V purchased for $277,500.00 and fully funded by the wife accessing funds from her father’s estate first through the deposit, then through a mortgage. This debt was ultimately forgiven by the estate. The wife had the following assets at the commencement of the relationship, and that is not contested:[14]
a)Her father’s 1984 Porsche.
b)Interest in residue of her father’s estate, to vest when she turned 35.
c)Property V
d)$58,000.00 in superannuation.
e)1999 Toyota Prado Motor Vehicle.
f)An entire household of furniture, white good appliances, linen and other home wares.
g)Jewellery estimated at $20,000.00.
[14] Paragraph 11 of the wife’s trial affidavit.
The parties lived in this apartment for about 2 years before moving into their home at Property F. Prior to living in the apartment, the parties rented a unit at [omitted] for about six months, and they shared the costs equally and the housework, the husband doing most of the cooking given that he was a [omitted].
During the relationship
After the parties had been living together for 2 years, they married in 2002. The father contributed $2,500 towards the wedding and the wife accessed funds of $25,000.00 for the wedding, it seems in Tahiti. The husband sold his car and boat towards the deposit on the wedding rings which cost $8,000.00.
Three months later, the wife’s father’s significant estate vested in the wife, upon her turning 35. The estate included investment properties namely 5 residential units in Victoria, and a share portfolio and assets of [D] and [S] Pty. Ltd.[15]
[15] See paragraph 23 of the wife’s trial affidavit.
The funds to purchase the Property F property came entirely from the funds of the wife’s inheritance, mortgages were formalised but the repayments never requested, and the debt was ultimately forgiven by the estate. Loans were advanced from [S] Pty. Ltd, [D] Pty. Ltd and Estate; monies totalling $320,000.00.[16] The house was renovated and further funds expended of around $180,000.00 towards a swimming pool, boat shed and house improvements.
[16] Annexure KH1 to the father’s trial affidavit.
From aged 27 until the wife turned 35, she had an income of $35,000.00 per annum, from her father’s estate and it was not necessary for the wife to work in the paid workforce. Prior to that time the wife had done a TAFE [omitted] course. After she turned 35, (in 2002) it seems that the wife was paid around $100,000.00 per year from the companies she inherited. I note in the husband’s tax returns,[17] there are years where the wife is shown as receiving more than a $100,000.00 and up to $195,000.00 and sometimes less at around $70,000.00.
[17] Exhibit M1.
Once married and prior to their baby being born the wife asked the husband to give up working outside of the home, and stay home to help her care for the child and clean the house. The wife made this request as she had no family in North Queensland to help her look after the baby and she wished to continue to manage her companies. The wife told the husband she would pay him $300.00 a week to stay home and help her instead of earning his own income outside the home.
The wife says that the arrangement was to be for about 12 months and that she did not anticipate her husband staying home for years. In any event, the husband and wife set out earning extra money through other work and at least two business ventures after that time and the husband worked outside of the home on and off during the years he was parenting as can be seen in his tax returns and evidence.
The sum of $300.00 per week is recorded in the husband’s tax documents, as being paid to him by the wife’s company [D] Pty. Ltd. He received the weekly amount from just after their child was born in 2004 up until early in 2008. The wife ceased paying him any money at all after this time.
The husband’s tax returns show the following: In the 2000 financial year: $21,804.00; in the year 2001: $24,159.00; in the year 2002: $22,156.00; in the year 2003: $26,017; ([X] is born [in] 2003). In the year ending 2004 taxable income is $25,436 (consisting for the first time of $18,700 from [D] Pty. Ltd, the wife’s company, and $6,736.00 from another source [H] Pty. Ltd – tax is withheld by [D] Pty. Ltd).
In the year ending 2006 $49,059 is shown as being paid by [D] and $14,241 from [H] Pty. Ltd; a total of $63,300.00; in the year 2007 the husband’s total income is shown as $43,756.00; in the year 2008 the husband’s taxable income is $15,067.00. The 2009 year was not tendered. Finally in the year ending June 2010 the husband’s income is $33,303.00 having earned $22,814 from a crocodile farm, and $10,384 at a restaurant. The parties separated in July 2009.
Despite the figures shown on his tax returns, the husband only received $300.00 per week. This is not contested despite what was initially put to the husband in error by the wife’s Counsel. It seems that the payment of $300.00 per week constituted a tax deduction for the wife’s company. It is clear that he has had income assigned as being distributed to him well above $300.00 per week (which only amounts to $15,600.00 per annum). Splitting an income between spouses is not an unusual arrangement and I make no criticism of the wife for conducting her affairs in the manner she did.
Once the baby was born the parties established a parenting routine where the husband would get up early to look after the baby and enable the mother to sleep in, when the mother had been breastfeeding at night. The care during the day seems to have been shared.
I do not consider that the husband’s non-financial contributions are diminished because the wife was paying him essentially not to go out to work, but to stay home and help her. If he did not have this money, he would have had no money at all. It is not unusual for the party with the highest income to support their spouse during a marriage. I accept that the husband worked around the house, cleaning and helping regularly with the care of young [X] throughout the week. The evidence is that the parents shared the care of [X], if the husband was vacuuming and doing other housework, the wife would look after [X]. If the wife needed to sleep in, the husband cared for [X]. The husband did most of the cooking, the wife washed. The husband occupied himself in the grounds of their [F] property, did gardening, planting trees, doing maintenance. He did mowing, poisoning, mulching, looked after the pool and established bee hives in the hope selling honey locally. The wife volunteered his services to help with volunteer work at [X]’s kindergarten which he seems to have been quite active in.
Once the Property F property was purchased, the husband would assist on site from time to time with the improvements. I accept that he did assist as an unskilled labourer might, from time to time. This may have been for a period from one to six months. There is little evidence of the wife performing any manual work at Property F during this time. The father’s evidence was vague and he had an extremely bad recall for dates. The husband says he was keen to develop the property at Property F and he has done some work in this regard. Tropical fruit trees were planted from seeds that the husband collected. He spent some of his $300.00 weekly on requirements for his proposed tropical fruit farm and provide from local Cairns markets for the family. I accept that he did some work to the grounds following the destruction of Cyclone Larry in 2006 and that he did some weeding and trimming, and took down an old green house. The Property F property had rainforest on it, some of which the husband had cleared.
The husband has on two occasions during the marriage worked at a local [omitted] for six months and later for four months, three days a week. He decided to study at TAFE and get two licences, his [omitted] licence to help with the proposed [L] business and his [omitted] licence. He says he had to borrow funds to help acquire these licenses as the wife ceased paying the $300.00 per week and he had no money of his own.
During the marriage he did not seek out work as a [omitted] which seems to be his primary qualification. He says that this was because the staggered work hours did not accommodate his desire to assist in raising their child [X]. This was not contested.
A housekeeper was employed by the wife in 2006. It seems she did the bulk of the weekly cleaning though I accept that each of the parties still had to clean up each day and meals had to be cooked and washing done along with other household tasks.
In 2006, having been alerted to the possibility by a friend of the mother, the parties together decided to purchase a [V] business. The wife accessed funds of around $23,000.00 and the husband did the manual work of [omitted]. The husband did [omitted]. That business earned an income, but it seems did not make any profits. The tax return for the year ending 2010 seems to validate this position.[18] The business was conducted as a partnership. The outlay for this business was modest, the wife spent more on a boat. There seemed to be some ill founded expectation that by this the wife’s business would make a reasonable profit.
[18] Exhibit F3.
In 2008 the husband with the assistance of the wife, attempted to set up a [L] business “[G]” with the wife accessing funds to provide machinery, and the husband used some of his money and his credit card to provide resources for the business such as signs, business cards and registering the business. That business was set up, but does not seem to have moved to the next stage of finding clients and bringing in an income. The husband explained that it was a difficult time to start up a business.
He subsequently obtained casual work with [omitted] in mid 2008. This was for about six months, sometimes up to 5 days a week and at other times there was no work. The husband also worked for a [omitted] in 2008 or and 2009.
In regard to contributions and the two businesses set up during the marriage, I am mindful of the decision in Browne & Green (1999) FLC 92-873 in which their Honours support the proposition that “contributions by a party do not necessarily need to produce a result for that party’s contributions which fall within paragraph 79(4) (a) and (b) of the Family Law Act 1975 to be taken into account”.
I accept the husband made some modest contributions to the household finances from his casual wages including buying fruit from the local [omitted] markets in Cairns, or from the $300.00 paid to him. Towards the end of the marriage, the husband worked at a [omitted] after the wife lodged an application on his behalf for the position.
Post separation the wife has continued in her role of managing the investments and has drawn an income from those investments. The husband has obtained full-time employment at a [business] in Cairns as a [omitted] and is earning around $800.00 per week. Each has continued to share in the care of [X] who has been spending on average 2 nights a week with the husband and the balance with the wife.
The husband has remained living in the former matrimonial home and has paid the rates and continued with the maintenance. He has shared in the raising of [X] with the wife.
In terms of contributions to the welfare of the family and child in my view, the husband and wife have each played an equally important role in both raising the child and in their homemaking contributions. The wife’s Counsel accepts that the non-financial contributions were equal. I do not understand the husband’s case to be anything other than their non-financial contributions was equal. After considering the evidence of each of the parties, that position seems to me to be borne out by the evidence. I will regard each of the parties’ non-financial contributions pursuant to s.79 (4) (b) and (c) as equal.
Financial Contributions
The significant difference in contributions in this matter is in relation to direct financial contributions. The wife has made an overwhelming financial contribution initially in bringing in effectively the whole of her inheritance. Whilst there is no evidence as to the value of the inheritance at that time, there has been passing reference to a figure of about $3.5 million. Importantly, the property inherited and remaining is shown on the agreed asset pool. The assets acquired by the husband and wife from the period of this relationship to separation, were also acquired primarily through the financial contribution derived from the wife’s inheritance.
The wife has accessed funds to pay living expenses and holidays for both of the parties derived from the inherited estate. Benefits have flowed financially from the wife’s inheritance in terms of her significantly higher income once she turned 35.
I consider that whilst the husband’s financial contributions in terms of income were modest in comparison to the wife’s, they are deserving of some acknowledgment. It is not the case that the husband failed to earn any income. The tax returns reveal that he was earning a modest but regular income for the first three years of the relationship and that income came from outside of the home. He has attempted to make money from business ventures with the wife, but neither was financially successful. I still acknowledge the contributions. He has worked on and off outside the home during the marriage.
The wife’s case is that the husband has effectively made little to no financial contribution towards the inherited assets, other than the assets acquired during the marriage which is primarily the Property F house, vehicles, machinery and the [V] business. The wife’s Counsel submits that any indirect contributions had to be minimal[19] and submissions are made that the husband had not even visited them, and that his efforts had nothing to do with their increase in value it was all due to market forces. I do not accept that the Husband had to visit the assets to have made an indirect contribution.
[19] Transcript, 18 May 2011. PLage 16, line 35 onwards.
I accept and it does not seem to be contested that the increase in value on the wife’s inherited assets were due to the market forces during the period of the marriage (except the Superannuation which seems to have been contributed during the relationship with payments being made by the wife’s companies to her superannuation). I accept that their value at the time of hearing is representative of the worth of the wife’s initial financial contribution.[20]
[20] Williams & Williams. [2007] FamCA 313.
In evaluating the contributions in this matter, I am being asked to adopt an asset by asset approach by the Counsel for the wife. I will give consideration to that submission. Mr Betts for the husband urges me to adopt a global approach.
Asset by Asset approach
Mr McPherson urges me to adopt an asset by asset approach with two pools. As can be seen on “document 2” attached to the wife’s written submissions, the wife has prepared a list of items that she submits is to be divided between the parties. This is the first pool, it consists of:
Wife’s first pool - matrimonial assets
| Property F | $530,000.00 |
| Bali Time Share ½ interest | $3,800.00 |
| [V] Business | E$22,610.00 |
| Toyota Landcruiser | $35,450.00 |
| Caravan | E$17,000.00 |
| Boat | E$60,000.00 |
| [L] business equipment | E$6,000.00 |
| [L] business equipment | E$2,000.00 |
| [L] business equipment | $1,500.00 |
| [L] business equipment | $8,000.00 |
| [L] business equipment | $500.00 |
| [L] business equipment | $500.00 |
| [L] business equipment | $300.00 |
TOTAL: | $687,660.00 |
The assets in the first pool are described by Counsel for the wife, as the items the parties acquired themselves during the course of their relationship and subsequent marriage.[21] This list seems to refer to matrimonial assets.
[21] Transcript page 14, 18/5/11 – line 45.
The wife suggests that the division of this pool occur on a 90-10% basis. Whilst the wife says 10%, the wife actually proposes a payment in the sum of $53,000.00 (10% of the value of the Property F house) plus the Toyota $35,450 and a figure for the [V] business (estimated at $ 22,610), in total a figure of around $111,060. I note however that the agreement at trial was that the [V] business equipment are to be sold, so the sale price is not known. On document 2 to the wife’s submissions this figure is shown as 16.5% of that pool of $687.660.00. The wife is to retain $576,540.00.
As to the second pool it consists of all of the remaining assets. Therefore having regard to the total asset pool as agreed and as set out earlier in these reasons, the value of the second pool (being the total pool less the first pool) is estimated at around $4.4 million. The Wife is to retain the whole of the second pool as well as $576,540.00 from the first pool.
Mr McPherson submits that the husband has not even asserted he has anything to do regarding the properties that the wife inherited from her father. He doesn’t even say that he drove past in a car and looked at them or he could find them on a street map. Mr McPherson refers me to a decision in Pappas & Pappas[22] and to paragraph 238 of that decision in which His Honour, Federal Magistrate Brown stated in regard to the properties that the husband inherited in Greece: In These circumstances I assess the husband’s contribution towards the acquisition of the Greek properties – that is those that are inherited – as being very close to 100 per cent. Mr McPherson said in relation to his submissions on behalf of the wife: Again, that’s the submission we make in this case. The wife’s position is that she retains the second pool. In other words, when evaluating the contributions to the second pool the wife says that the percentages are 100% to the wife.
[22] [2008] FMCAfam 790
The second pool contains the wife’s inherited assets, and the properties acquired by her post separation, all of the wife’s superannuation and the apartment she purchased when the parties lived together for about
2 years. I do not accept that this division properly acknowledges the husband’s contributions both financial and non-financial after a nine year marriage and one child.
I note the value of the wife’s superannuation at the commencement of the relationship was $58,000.00[23] and the value at the time of swearing her affidavit in October 2010 is shown as $135,062.00. The wife gave evidence that no further contributions had been made by her post separation. The contributions were made by during the course of the relationship and marriage by [D] Pty. Ltd one of the companies in her father’s estate. The wife proposes retaining all of her superannuation.
[23] Paragraph 11, wife’s trial affidavit.
As I have already noted, Mr McPherson relies upon a decision of Federal Magistrate Brown in Pappas & Pappas [2008] FMCAfam 790, where His Honour was dealing with contributions in an 8 year marriage. He also relies on Pappas & Pappas to persuade me to adopt an asset by asset approach and persuade me to make an Order wherein the wife retains to the exclusion of the husband, the entirety of her interest in the property she inherited from her father (apart from the Property F property, the vehicles and machinery as shown in the first pool). I will therefore address that submission.
Pappas & Pappas
Apart from the fact that the decision referred to is not binding on me, I consider that factually the two cases are quite distinct and the financial history of each matter, the contributions and values and uses of all of the property quite different. It is not the case that FM Brown decided that the Greek properties were to be left out of the consideration all together, their notional value was included as s.75(2) factor.
In relation to the suggestion that I should treat the properties of the wife which were inherited, in the same way that Federal Magistrate Brown treated the husband’s inherited Greek properties in Pappas, that case is quite different from the case at hand and the considerations were distinguishable. The asset pool consisted of properties acquired jointly by the parties, and also properties and a business that husband owned with his mother or which were gifted to him by his mother, or which were held on trust for him by his mother and another property he inherited from his father in which his mother still had an interest. The inherited Greek properties were considered to have little current value and unlikely to have any in the future. The husband’s interest in the Greek properties was a three-eighth share in three separate pieces of land in Greece: a vineyard, an olive grove and some farmland on the Island of Zakynthos. He shared this interest with an uncle who was not well disposed towards him and who occupied the land in question. The husband’s sister and mother also have interests in the property. The husband received no rent from these properties and His Honour found that it is likely to be impossible to persuade any of the parties concerned, including the uncle living in Zakynthos, to sell any of the properties involved.
The wife did not assert an interest in the Greek properties, rather she wanted it taken into account in s.75(2) factor and this is the approach that FM Brown adopted. However, as submitted by Mr Betts, His Honour considered that contributions on the Greek property was about 90-10 in favour of the husband (which is what the husband was seeking in the matter in question). The inherited assets in the case in question have significant value without the restrictions and limitation on the inherited Greek property in Pappas.
I do not accept the submission that the decision of FM Brown to find that the husband’s contribution to the inherited Greek assets in Pappas was almost 100%, or to adopt an asset by asset approach, which with respect, were clearly decisions for His Honour FM Brown to decide in that matter on those facts, is either analogous to this matter or helpful to the approach that I should adopt.
Quarantining the wife’s inherited assets
In relation to the approach of two pools and an asset by asset approach, I have difficulty with the concept of quarantining the assets as suggested by Mr McPherson for the following reasons:
a)The proposition that assets and property owned by the wife can be quarantined and taken out of the asset pool and avoid being included for consideration under s.79 of the Family Law Act, seems to offend the description of “property settlement proceedings” referred to in s.79 which includes reference to the property of the parties to a marriage or either of them.[24] As stated in Hickey & Hickey (2003) FLC 93-143 at 40 …Section 79, unlike section 78, requires the Court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property.
b)The proposition that the wife’s inherited property is quarantined from the reach of s.79(4) (as amended in 1983) because it was inherited is not supported by authority. That section reads In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account…(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent. In Farmer & Bramley (2000) FLC 93-060 His Honour Justice Guest referred to the Full Court decision in Shaw (1989) FLC 92-010 who in the context of examining the legislative amendments effected by section 36(b) Family Law (Amendment) Act 1983, quoted from the explanatory memorandum provided prior to the passing of the bill, and said of the amendment to section 79(4):
“In our opinion, the 1983 amendments to sec 79 (4) have clearly achieved those stated purposes. In particular, in our opinion, the changes to the sub-section referred to under point 3.(above) have the effect of making it clear that a spouse’s contribution to the welfare of the family or in the capacity of homemaker or parent may be recognised by an order under sec. 79 in relation to some property even though such contribution has no connection whatsoever with that property, or any other property of the parties or either of them (whether in relation to its acquisition, conservation or improvement or otherwise). It follows, therefore, in our opinion, that such a contribution by one spouse may be recognised by an order in relation to property of the other spouse even if that property was acquired by the latter prior to the marriage, and even though the home maker contribution of the former can in no way be related to the acquisition, conservation or improvement of that property.[25]”
[24] Section 4 (1) Family Law Act 1975.
[25] Page 76 and 77.
Whilst the wife has made a significant contribution in terms of her inherited estate, I consider that the husband has made both financial and non-financial contributions both pursuant to section 79 (4)(b) and (c) and these contributions are not acknowledged in the Orders sought by the wife and the quarantining of her inherited assets. The issue of how much weight is given to the contributions of the wife to those assets is a separate question, and was stated by the Full Court in Pierce[26] “It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case the husband, regard must be had to the use made by the parties of that contribution.” The inherited estate of the wife is not immune from this consideration.
c)The second pool contains the wife’s apartment at Property V which the parties lived in together prior to moving into their matrimonial home. The evidence is that the husband was earning an income and costs were being shared in this time. The parties lived in the apartment for around 2 years. There is no acknowledgment of any contribution by the husband in the wife’s quarantining of this asset into the second pool.
d)The wife had superannuation at the commencement of the relationship worth about $58,000.00 and it has increased during the relationship to $138,988.00. There is no acknowledgment of the husband’s indirect contributions to this Superannuation, it is instead quarantined and retained exclusively by the Wife.
e)In addition, the Full Court in Napthali and Napthali (1989) FLC 92-021 considered it improper for a trial judge to draw a distinction between what were regarded as matrimonial assets on one hand and business or other assets on the other. Their Honours stated the this point had been made clear in various authorities[27] such as Pastrikos & Pastrikos (1980) FLC 90-897 at 75,653 where it spoke of s 79 involving a dual exercise. The first part of that exercise involves the assessment of the extent of each party’s contribution under paragraphs (a), (b) and (c) of s 79(4). In the case of a wife whose role is primarily that of home maker and parent, that contribution is not to be taken as being confined to the former matrimonial home; it extends, at least, indirectly to the whole of the assets of the parties including the business of the husband.
f)There are various authorities of short or medium term marriages where the gender is reversed and one party, often the husband has brought in the bulk of the assets and the other party, being the wife has made non-financial contributions to those assets the entirety of those assets was acknowledged as part of the pool and a percentage not paid towards the other party. Those assets were quarantined from the other party and a global approach has been adopted. Kennon & Kennon (1997) FLC 92-757 involved a short marriage and wealthy party and $8 million dollar asset pool, a marriage of 5 years with no children and non-financial contributions. The wife was awarded $400,000.00 by way of contribution and $300,000.00 by way of s.75(2) factors by the Full Court (and the wife had domestic assistance during that marriage). In GBT & BJT a marriage of six and a half years with an asset pool of $3.1 million, no children of the marriage, though each had children of their own, the husband’s income was $1.4 million compared to the wife’s $100,000.00, the Full Court awarded the wife 7.5% plus 2.5% for s.75(2) factors. In Williams & Williams (2007) FamCA 313, a 10 year relationship with the husband bringing in the entirety of a farming business, a property pool of $3.7 million with a division of 42.5% to the wife.
[26] Pierce & Pierce (1999) FLC 92-844.
[27] Albany & Albany (1988) FLC 90-905 and Lee Steere v Lee Steere (1985) FLC 91-626.
I therefore consider that there is significant difficulty with the wife’s position in seeking to quarantine her own assets she brought into the marriage which were inherited and placing them in a separate pool on the basis that the husband has made no contributions to it, and asking the Court to divide only the assets acquired during the relationship (except for the wife’s apartment in [P] which is excluded from the pool). This seems to me to be assuming that there are 2 categories of assets; the wife’s assets and then “matrimonial assets” and that each must be kept separate from the other for the purposes of non-financial contributions. I do not accept that it is appropriate to approach the property division pursuant to s.79 on this basis.
Which approach to adopt – Asset by Asset or Global
In regard to the approach to adopt to the property division, I have had regard to Norbis v Norbis (1986) FLC 91-712 at p.75,168 in which it was stated that in most cases with long marriages and a variety of assets acquired and changes in family fortunes over the years, the Court ought to approach the matter globally and apply a percentage division and that the global approach is generally more convenient for the majority of cases. However, there are occasions when a different approach is appropriate. Their Honours Wilson and Dawson JJ stated “If the parties’ interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of property between them. In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be affected by the transfer or retention of interests in individual assets, as was convenient in this case.”[28]
[28] FLC 91-712. pp 75, 173 – 175, 174.
In McMahon and McMahon (1995) FLC 92-606 the Full Court found that in that marriage of six years, the correct approach was the asset-by-asset approach as opposed to the global approach. Their Honours made reference to the short duration of and the unhappy nature of the marriage, coupled with the parties’ strict division of assets and their method of dealing with them lent itself to an asset-by-asset approach, particularly where they had separately identified another group of assets as joint.
Their Honours continued: We are conscious of the remarks of Mason CJ and Deane J in Norbis v Norbis (1986) FLC 91-712 at p 75,168 where their Honours indicated that in most cases the global approach is more convenient. Their Honours also noted: One of the reasons why their Honours expressed a preference for the global approach is because it is natural to assess the contribution by a spouse as a homemaker and parent, either by reference to the whole of the parties’ property, or to some part of that property as distinct from individual assets.
The relationship in the matter spanned 9 years with a seven year marriage. I do not consider this to be a short marriage. The husband’s contributions are both financial and non-financial. In my view, the primary issue to address is the weight to be given to the wife’s initial financial contributions. It is not a case where the husband has brought in assets of some value as well at the commencement of the marriage, or during from other sources such as a personal injury claim or inheritance and the parties have kept their finances completely separate as is sometimes the case when the asset by asset approach has been adopted.
I have therefore concluded that in consideration of all of these matters, it is appropriate for me to adopt a global approach to a property division in this matter.
Assessments of each of the parties contributions
When asked about the wife’s position if the Court adopts the global approach, Mr McPherson’s submitted that the husband’s contributions would result in an entitlement of less than 1% of the overall assets.[29] Mr McPherson says that this is not a case where the Court is in the process of social engineering. What the court has to look at is the contributions[30]. In my view the suggestion that the husband would be entitled to less than one percent after a nine year marriage and one child, seriously undervalues the modest financial contributions and equal non-financial contributions of the husband. I ponder whether such a submission would be made if the genders were reversed.
[29] Transcript 18/5/11 – page 17, line 33.
[30] Transcript 18/5/11 page 17 – line 45.
Mr Betts of Counsel submitted that the proper approach for the Court is to adopt the global approach. He refers to the fact that it was a 9 year relationship with one child, noting that the wife’s inheritance started at the commencement of the relationship and then fully vested 3 months after they married in 2002. Mr Betts submits that Mallet v Mallet[31] makes it clear that the Court must properly weigh homemaking and child rearing contributions and that it is not the law that these contributions are limited to the “home” as the wife is arguing. Mr Betts submits that the husband did work in and out of the home, in the garden, looked after the child regularly, and at times whilst the wife slept, cooked, cleaned up after Cyclone Larry, contributed to the household income on modest terms, and post separation has continued with his care of the child when the wife would permit it, and noting the arrangement for the future which the wife has agreed to at trial which is shared care arrangement which sees the husband having the child six nights out of fourteen. I accept the force of these submissions.
[31] 9 Fam LR 449.
When looking at the child’s views in terms of [X] has, as stated by
Mr P, expressed a specific position and that is to stay at her current school. This is not unexpected given that she loves school and has at least four best friends named who attend school with her. I am aware that children’s wishes are important and realistic weight ought to be attached to any wishes expressed by children[38]. Justices Fogarty and Kay also stated, “The court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their long term implications. Ultimately the overall welfare of the child is the determinant.”[39]
[38] In the Marriage of H & W (1995) 18 Fam LR 788 at 797.
[39] Supra – page 800.
In regard to the nature of the relationship of the child and her parents,[40] it is clear that she has an equally good and close relationship with both parents, and that each parent offers [X] different and rich experiences.
[40] Section 60CC (3) (b).
As to the likely effect of any change in [X]’s circumstances,[41] the father’s orders propose a continuation of the status quo. There will be no necessity for [X] to endure the impact of changing schools, leaving her current best friends and the familiarity of the school environment she has been in for four years. In terms of travelling, the father will continue to drive her from Property F to [R] which is what happened during the marriage. Her mother will continue to drive her from Property P, which has been happening for two years. The travelling times for each parent from school to their home is about the same, the father travels south, the mother travels north. Every day [X] will be travelling a reasonable distance in the context of living in Cairns, with journeys in the morning and afternoon of around 40 or more minutes.
[41] Section 60CC (3) (c).
On the mother’s proposal, [X] will no doubt experience considerable change. Not only will she change schools, she will leave behind her best friends and being comfortably settled at school. On the days that [X] is with her mother as shown on the Consent Orders, there will be less travelling to and from school for [X] it would be about ten minutes from home to school. In the school week, [X] is taken to and from school on 8 occasions each fortnight by her father, and she is taken to and from school on 12 occasions by her mother. I accept that on these days, [X] will have more time at home in the mornings and afternoons and these days the travel will be less arduous.
If [X] attends the [M] campus of [T] however, on the days that she spends with her father, her travelling will increase from the current position of 32 or so kilometres from Property F (64 kilometres in a day) to just over 60 kilometres from Property F to [M], that is one way, or 120 kilometres a day. This will happen every Mondays in the four week cycle, most Tuesdays and sometimes Wednesday mornings. The balance of Tuesday afternoon, Wednesday, Thursday and Friday will be a ten minute drive to and from her mother’s home.
In week two, [X] will travel Monday and Tuesday, 60 kilometres to and from school each day. Then 60 kilometres back up to school on Wednesday morning, and thereafter Wednesday afternoon, Thursday and Friday will be ten minutes to and from her mother’s home. Week 3 [X] will travel 120 kilometres on Monday to and from school, and then 60 kilometres back to school on Tuesday morning. The balance of the week from Tuesday afternoon, being Wednesday Thursday and Friday will be a ten minute journey from her mother’s home. In week four, [X] will travel up and back from Property F on both Monday and Tuesday, being 120 kilometres each day and back up on Wednesday morning and then Wednesday afternoon, Thursday and Friday will be a ten minute journey to and from her mother’s home.
[X] has three or four more years at primary school.[42] It is difficult for [X] to make school friends in either Property F or Property P whilst she is going to school at a suburb over 30 kilometres from either her mother’s home or her fathers’ home. [X] has always attended a school 30 or so kilometres from home. This was in the context of the parties living a lifestyle on acreage in the rainforest when they purchased Property F, and the decision the mother made at that time was about sending [X] to a private school and so [T] was chosen. The situation has now changed and the hopes and aspirations of the parties as a family to enjoy this lifestyle has not come to fulfilment.
[42] Noting the Queensland Government plan to introduce grade 7 into high school in 2015.
The mother initially moved into her apartment at Property V after separation, and has since acquired herself and [X] a new home at Property P. I accept though that the mother has her own reasons for doing so and that she does not have to show compelling reasons for wishing to relocate. The father has been asked if he would move closer to the mother, and his response ultimately was he does not wish to live at [P], he likes the area south of Cairns. If he doesn’t live at [F], he may live in [O] which is still south of Cairns but not as far away as [F]. He would like to live the lifestyle that he and the wife initially had in mind for [X] on a small acreage, open doors and [P] is not that kind of area. The mother does not wish to live in [F] any longer. It is a very small township of a couple of hundred people.
In regard to the parents’ attitude to parenthood and the children, the parents have devised a split of [X]’s time as seen in the Consent Orders which accommodates the father’s working week Tuesday to Saturday and therefore a split weekend every weekend. In terms of school days, being ten a fortnight, of the 20 pick ups and drop offs, the mother will do 12 and the father will do 8. Each of the parties have dutifully been complying with their responsibility as parents and ensured that [X] attends school, regardless of the driving involved. There is no real complaint of the other about their parenting capacity or responsibility towards parenting. An order has already been made based on the best interests of [X] for equal shared parental responsibility.
On the mother’s proposal it means that [X]’s travel time when she is taken and collected from school by the father is increased, however, there are more days per school week when [X] is with her mother than the father. On the days that [X] is taken to and from school by the mother, there will be considerably less travel. The journey is about ten minutes each way to and from school.
On the father’s proposal, both the mother and father travel to and from their homes to get [X] to and from school. It can take the mother 40 to 50 minutes to get to and from Property P to [R]. She has to do this twice a day. The father’s proposal will mean he travels about the same distance as the mother, but less on the days he works. The father will be paying more fuel costs than he currently is. The mother will be paying $2,000.00 per term for [X]’s private school fees. The father has Monday’s off, so on Mondays he is in the same position as the mother in not having work commitments.
I am aware that [X] would prefer to stay at the school she currently attends. As I have said I am not surprised at this evidence. If she is happy at the school and has, as many children do “best friends”, I would not expect her to say that she wishes to change schools. I am aware that she is described as a high functioning outgoing child. Mr P says that children from intact families can cope with challenges such as changing schools, and that [X] needs her parents to set an example of co-operative parenting, to help her with any such challenges. It seems to me that what [X] needs whatever school she attends, is for her parents to cease their passive aggressive stance towards the other. Reading of Mr P’s report is in order for [X]’s developmental challenges to be minimized, leadership and example of parents that are united in their decision making is critical[43]. I am also mindful of Mr P’s description of each parent having difficulties in separating their own needs from those of their child and the professional assistance they need in this respect.
[43] Paragraph 160.
I note that the parents have managed to agree to their parenting arrangements, which Mr P was not particularly hopeful about. To that extent, the parents have worked co-operatively. It is to be hoped that this is a sign of a brighter future for [X]. Having the property matters resolve will no doubt remove some of the stressors related to the breakdown of this marriage for each party and therefore also [X].
It seems to me when considering all of the factors that [X] would have a less demanding schedule each week if she were to attend at the [M] campus of [T]. On the father’s proposal, [X] is travelling a reasonable distance every day of the school week. There is an opportunity for this to change, at least for the next three or four years. The father says he may live closer to Cairns at [O], that is closer by about 20 kilometres to Cairns, and therefore to the [M] campus of [T]. A change of school for [X] will mean not seeing her best friends every school day and a change of school. I am aware of her desire to wave a magic wand so that she can stay at her current school. As I have said, I would expect [X] to say this. [X] is described as a high functioning young girl, who loves school. There is no evidence that she would not cope with a change of school. I also consider that the change to a different campus of the same school is not likely to be such a significant change as changing schools in different towns or changing schools from say a church based school to a state primary school. [X] will still be attending [T] School, but at a different location. She seems to be a bright, articulate and insightful child, who had no difficulty talking with the Report Writer. It seems to me she will be capable of forming new friendships, and given that she will still be living in Cairns, but in a beachside suburb, there will still be opportunities to spend time with her best friends on weekends and holidays. This will also occur if and when there are combined school activities. Of the friends that [X] will make at [T], those who wish to stay at [T] for high school, will go to [R] campus along with [X].
The longer journey which will happen when [X] is with her father pursuant to the consent orders will happen on fewer school days each week. In my view, the longer days, will be compensated by the number of days that her journey to and from school will be so much shorter and the benefits that flow from that for [X]. More time at home in the morning and after school and living in an area where it is more likely that she will be able to form friendships with children who live nearby and go to school locally will likely create opportunities and experiences that do not currently exist for [X]. The possibilities for [X] of having friends over after school and going to friends places locally and being the same school and local community are probably beyond [X]’s thinking at age 7 or 8. I consider that this is a significant benefit for [X]. Having considered the relevant s.60 CC factors, I am satisfied that it is in [X]’s best interest to attend the [M] Campus of [T] School up until High School. I note it is the expectation of both the parent that [X] will return to the [R] Campus of [T] School for the commencement of her High School years.
Christmas Day
The scope of the disagreement on relation to Christmas Day is a two hour time difference. The mother seeks an Order for [X] to spend Christmas Eve with one parent and up until 12 noon Christmas Day, so that [X] can have Christmas Eve with one parent and Christmas lunch with another. The father seeks an order that [X] spend Christmas Eve with one parent and also Christmas lunch, concluding at 2pm.
The mother says that [X] is young and generally in bed at around 7.30 pm or so on Christmas night, so lunch is really the main opportunity to celebrate a Christmas meal with [X]. The father’s position is that [X] should have Christmas lunch with one parent and Christmas dinner with the other, therefore [X] should stay with one parent from Christmas Eve until 2:00 pm, not 12:00 noon. This does not allow for lunch.
The parenting orders proposed provides for [X] to spend significant and substantial time with the father. The definition of substantial and significant time, as defined in s.65DAA (3) is to include time that allows the child to be involved in occasions and events that are of special significance to the parent as well having time to allow parents to be involved in events and occasions that are significant to the child.[44]
[44] Family Law Act 1975, section 65 DAA(b)(ii).
Christmas Eve is significant to both parents and the child. This occasion is to be shared between the child and each parent from one year to the next. Christmas Day is also a significant occasion to both the parents and the child, and again is an occasion to be shared from one year to the next. Christmas Day holds many opportunities for children to spend time with family, open presents, go to Church or share celebratory meals at either lunch or dinner with family. It is a different experience to Christmas Eve.
The father is a [occupation omitted] and he would like to have a special Christmas lunch with [X] each alternate year. I have no evidence what either parent does on Christmas Eve, I do not however, consider that Christmas eve replaces sharing a Christmas day meal with [X]. Whatever Orders I make, each party will have the benefit of each alternate year. I am aware that the mother had Christmas Eve and Christmas morning last year that Christmas lunch was at the mothers’ but the father attended, and that the father’s proposed Christmas dinner with [X] but that did not happen for a range of reasons.
I consider that it is [X]’s best interests to be able to share a meal with each of her parents on Christmas Day and I intend therefore to adopt the fathers’ proposal that [X] spend from 2pm Christmas eve until 2pm on Christmas Day with one parent alternating each year. I will Order that [X] spend time with the father from 2pm Christmas eve until
2:00 pm Christmas Day in 2011.
Changeovers
On the non-school handovers (every weekend) the parties have agreed to do handovers at [omitted] playground, though the mother’s wishes to have orders that [omitted] Playground is the handover point, whilst the father lives in [F], but open ended to another half way point if the father moves from [F]. However, if the father moves further south from [F], she does not wish to drive any further south. On the evidence before me, the father has suggested that he may move closer to Cairns around the [O] area, if he moves at all. On days when the father has been working on the weekends, the mother says that the parties have in the past changed to another half way point, to be half way from the father’s work and the mother’s home at [P].
Each agrees that changeovers are very enjoyable for [X] at [omitted] Playground in Cairns. If either parent is late, [X] is not sitting in a car waiting. The water features and environment at [playground omitted] are most child focused. During the school week, on the Orders I have made, the father will be doing significant travelling. I consider that given the appropriateness of [omitted] Playground as a handover location, and the distance that the father will be travelling on his school days, and the lack of time frames for the mother and [X] on the weekends, and being mindful of the parental dynamic that has been described by Mr P, that it is in the best interests of [X] to have certainty about where the changeover will be and that location should be [omitted playground]. This is whether or not the father is working in Cairns. The mother will not be working on weekends and I consider that if the father happens to be working on weekends or school holidays that it is appropriate the mother still drive to [omitted playground] on those occasions.
As to the possibility of the father moving closer to Cairns, and the half way point therefore being not as far south as [omitted playground], one of my considerations is to make Orders least likely to result in further litigation. I am not confident that the parties will agree on an alternative location in the event the father moved north a little. I have other considerations other than making the driving “equal” between the parties which is what each of them appears fixated with. I am mindful of the contents of Mr P’s report regarding the state of the parties relationship and their over reliance on the legal system, and I consider that leaving open a further option in the future, will likely lead to further litigation. This is not in the best interests of [X] who already has a sadness that her parents are apart, a memory of their arguments and who will benefit from stability of her changeover arrangements with no scope for further disagreement. I therefore intend to make Orders that all changeovers, other than those which occur at school, will occur at [omitted] playground.
Passport for [X]
During the trial I raised with Counsel that reference had been made by the parties to overseas travel. As I understand the situation, orders are sought in relation to the issuing of a passport for [X] and therefore I intend to make an Order that each party do all acts and things and sign all documents to enable a passport to issue for [X]. I note in the draft of orders sent by each party that there is disagreement as to the terms on which the mother ought to hold the passport and there is disagreement as to the times and frequency that [X] is permitted to travel overseas with either parent.
I have therefore decided to make an Order that [X] be permitted to travel overseas with either parent during their holiday time with [X] pursuant to the Orders (which is the only Order agreed to by the parties) and direct the parties to attend the Family Relationships Centre for dispute resolution in the event they cannot agree upon the time for a specific overseas holiday with [X]. I do not have any evidence any specific travel proposed. I understand the father objects to any overseas travel occurring during school time. Without pre-judging any particular holiday proposal I stated to the parties during the hearing that when a child is in primary school and is able to take school work away on holidays, that the broad experience offered by an overseas holiday will often compensate for lost days of formal schooling. The opportunity for a child to travel overseas can offer experiences that provide a fulsome education in a different manner to that obtained at school each day.
If the parties are to have equal shared parental responsibility it is incumbent upon them to make a genuine effort to resolve parenting disputes, such as the timing or duration of overseas holidays, the parties need to attend dispute resolution in relation to this issue if they do not agree, prior to filing any application.
In relation to the passport and who is to hold it, I consider that it is appropriate that upon the passport issuing, each parent is to do all acts and things to ensure that the passport is delivered up to the Registry of the Federal Magistrates Court in Cairns where it is to be held and released to either party only pursuant to an Order of this Court, or the written agreement of each of the parties, whose physical and joint presence will be required at the Registry prior to the passport being released.
I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Willis FM
Date: 20 October 2011
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