HART and HART
[2013] FCWA 110
•6 DECEMBER 2013
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: HART and HART [2013] FCWA 110
CORAM: THACKRAY CJ
HEARD: 5-7 AUGUST 2013
DELIVERED : 6 DECEMBER 2013
FILE NO/S: PTW 1282 of 2011
BETWEEN:
MR HART
ApplicantAND
MRS HART
Respondent
Catchwords:
CHILDREN - With whom a child lives - Whether the child should spend five nights or seven nights a fortnight with the husband - The wife is the child’s primary caregiver and the current arrangement is working well enough - Equal shared care is not in the best interests of the child - Orders made for the current arrangements of five nights a fortnight with husband to continue.
CHILDREN - With whom a child spends time - Who cares for the child if either parent is unavailable - If a parent is unavailable for more than one night the child is to return to the other parent’s care - The child is to spend Christmas Day with both parents while she is still young as it is preferable to be able to see all her family, including her siblings on Christmas Day - The child is to spend alternate Easter weekends with the parents to allow the parents to go on a holiday away from Perth - The child is to spend block periods during the school holidays with the husband, such periods to lengthen as the child gets older.
PROPERTY - Where there is a dispute about $100,000 given to the husband and wife by the husband’s parents and repaid by the husband after separation and a dispute about $40,000 held in the husband’s solicitors’ trust account - Where the husband argued his contributions as an international sportsperson were made more difficult because of an unsupportive domestic environment - Where the husband’s parents provided free accommodation and provided the husband and wife with the use of $100,000 interest free - Discussion of s 75(2) factors including the husband’s paid legal fees, possible Capital Gains Tax, rent free accommodation to the wife’s mother and support of the wife’s son from a previous relationship - Where the property pool is valuable and a small adjustment results in a large disparity - Just and equitable result - Wife to receive 55% and husband to receive 45%.
Legislation:
Family Law Act 1975 (Cth), s 60CC, s 61DA(1), s 61DA(4), s 75(2), s 79
Category: Reportable
Representation:
Counsel:
Applicant: Mr Berry
Respondent: Ms Farmer
Solicitors:
Applicant: Dwyer Durack
Respondent: Bannerman Solicitors
Case(s) referred to in judgment(s):
Bevan & Bevan (2013) FLC 93-545
Hickey & Hickey and Attorney-General of Australia (2003) FLC 93-143
Hurst v Weber (2009) 233 FLR 337
L and L [2004] FamCA 1010
Martin & Newton (2011) FLC 93-490
Norman & Norman [2010] FamCAFC 66
Pellegrino v Pellegrino (1997) FLC 92-789
Robb and Robb (1995) FLC 92-555
Rosati v Rosati (1998) FLC 92-804
R & H[2003] FamCA 125
Stanford v Stanford (2012) 247 CLR 108
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1[Mr Hart] (“the husband”) and [Mrs Hart] (“the wife”) cannot agree the division of their assets and arrangements for their young child, [Erica].
2The dispute about Erica primarily concerns whether she should spend five or seven nights a fortnight with the husband. The property dispute is whether the wife should receive 50% of the assets or 60%, and there are also some issues about the composition of the pool.
Brief background
3The husband, aged 42, is a professional [sportsperson], nearing the end of his career. The wife, aged 40, is a [manager], having recently rejoined the workforce.
4The parties met in 1993. The wife already had a child from a previous relationship, [Gary], who was not yet a year old.
5The husband and wife commenced cohabitation in 1994. Their first child, [Melanie], was born [in] 1995, shortly after their 1995 wedding. There was then a long gap before Erica was born [in] 2008.
6The wife was the primary carer of the children. She had worked part-time as a [decorator] before Melanie was born and then went back to work, part-time, as a [library assistant], about 12 years later. She again stopped work when she fell pregnant with Erica and did not return to paid employment until after the separation.
7The husband was a semi-professional sportsperson earlier in the relationship. He commenced playing professionally full-time in 2002, when selected in [an international team]. Until then, when not playing [at a state or grade level], he worked as a [tradesman].
8The husband remained contracted to an international team from 2002 until January 2008, when he retired after the wife threatened to leave him if he did not. He returned to play at a state level in 2011, and has since secured more international contracts.
9The parties had an unhappy marriage and separated for the final time in the latter part of 2010, when the wife moved out of the family home and into their investment property. The evidence is unclear, but it seems Gary may have stayed with the husband for a short period following separation, but then moved in with the wife. (Gary had previously left home for a time according to his own affidavit). Melanie was still at home at the time of separation, but moved out with the wife and Erica.
10The husband soon commenced a new relationship with a woman, to whom he is now engaged to be married. She runs her own business, the main source of funds of which is the income generated by the husband. She has no children of her own.
11The wife had one serious relationship since the separation, but says this has now ended. She has had Gary living with her for part of the time since separation, although he was looking for work [on a farm] at the time of trial. Melanie has spent time with both parents since separation, although predominantly with the wife. She was living away from home at the time of trial, although visiting the wife fairly often.
12The husband remains estranged from Gary. They have not spoken for the last three years (apart from one altercation). Although the husband says his relationship with Melanie is “not too bad”, he speaks with her only on the telephone and they had not seen each other since Melanie left his home before Easter 2013, following an argument.
13Erica, who is in pre-primary, enjoys an excellent relationship with both parents. Initially, after separation, she spent a few nights each fortnight with the husband. Orders were made in August 2011 for her to spend time with the husband in a fortnightly cycle (from 8.15 am Monday until 5.30 pm Tuesday in one week, and from 9.00 am Friday until 5.30 pm Tuesday in the alternate week). At the husband’s request, the wife now takes Erica to pre-primary on the Monday and Fridays she is in his care.
PARENTING ISSUES
14I will deal first with the parenting issues, before turning to the property dispute.
The competing proposals
15Although I will set out the proposals in full, the primary disputes are:
•whether there will be a week-about shared care arrangement, as the husband proposes, or a continuation of the current regime of four nights one week/one night the next week, as suggested by the wife;
•who will care for Erica if the parent with whom she is meant to be living is unavailable; and
•what time Erica will spend with each parent around Christmas and on other special occasions.
16The orders sought by the husband were as follows (errors in the original):
…
16. All previous interim Orders be and are hereby dismissed.
…
18. The parties have equal shared parental responsibility for the child [ERICA HART] born [in] 2008 (“the child”).
19. The child shall attend:
(a) [School A], for her primary school education;
(b) the child-care facility on-site at [School A] as may be necessary from time to time before and after school; and
(c) [School B] for her secondary school education.
20. The child shall reside with the husband:
(a) during the school term and the interterm school holidays and the Christmas Holidays up until Christmas Eve, each alternate week, from the conclusion of school/ vacation care on Friday to the commencement of school Friday/ vacation care the following week;
(b) for one half of the Christmas school holidays from 10 January until the commencement the school, in blocks of up to 14 nights, with the structure of such time to be agreed between the parties;
and for each of the following times (with the wife’s time specified at paragraphs 21(a) and 21(b) below to be suspended if it coincides):
(c) commencing 2014 and each alternate year thereafter, from 9:00am on Christmas Eve until 9:00 am on Boxing Day, and commencing 2013 and each alternate year thereafter, from 9:00am on Boxing Day until 9:00am on 10 January;
(d) commencing 2014 and each alternate year thereafter, from the conclusion of school on Easter Thursday until the 9:00am on the following Tuesday or the commencement of school the following Tuesday;
(e) from 9:00am on Father’s Day eve until 9:00am on the day following Father’s Day, or the commencement of school the following day;
(f) commencing 2014 and each alternate year thereafter, on the child’s birthday, and if the day is a school day from the conclusion of school until 9:00am the following day or the commencement of school the following day, and if a non-school day from 9:00am until 9:00am the following day or the commencement of school the following day;
(g)on the Husband’s birthday, and if the day is a school day from the conclusion of school until 9:00am the following day or the commencement of school the following day, and if a non-school day from 9:00am until 9:00am the following day or the commencement of school the following day.
21. The child shall reside with the wife:
(a) during the school term and the interterm school holidays and the Christmas Holidays up until Christmas Eve, each intervening week, from the conclusion of school/ vacation care on Friday to the commencement of school/ vacation care Friday the following week;
(b) for one half of the Christmas school holidays from 10 January until the commencement the school, in blocks of up to 14 nights, with the structure of such time to be agreed between the parties;
and for each of the following times (with the husband’s time specified at paragraphs 20(a) and 20(b) above to be suspended if it coincides):
(c)commencing 2013 and each alternate year thereafter, from 9:00am on Christmas Eve until 9:00 am on Boxing Day, and commencing 2014 and each alternate year thereafter, from 9:00am on Boxing Day until 9:00am on 10 January;
(d) from 9:00am on Mother’s Day eve until 9:00am on the day following Mother’s Day or the commencement of school the following day;
(e) commencing 2013 and each alternate year thereafter, from 5:00pm on Easter Thursday until 5:00pm on 9:00am on the following Tuesday or the commencement of school the following Tuesday; and
(f)commencing 2013 and each alternate year thereafter, on the child’s birthday, and if the day is a school day from the conclusion of school until 9:00am the following day or the commencement of school the following day, and if a non-school day from 9:00am until 9:00am the following day or the commencement of school the following day;
(g)on the Wife’s birthday, and if the day is a school day from the conclusion of school until 9:00am the following day or the commencement of school the following day, and if a non-school day from 9:00am until 9:00am the following day or the commencement of school the following day.
22. Where either party seeks to change their time with the child outlined in paragraphs 20 and 21 above:
(a) they shall inform the other party in writing within 14 days of the proposed change where that change is for more than 3 nights; and
(b) they shall endeavour as first preference to arrange that the child spend time with the other parent.
23. The parties will use their best endeavours to facilitate liberal electronic communication between the child and the other parent, such communication to include telephone, email and Skype or any other digital communication.
24. Each party will forthwith inform and keep informed the other party in writing or by email of:
(a) their principal place of residence and immediately notify the other party of any change thereto;
(b) the land line telephone number, if any, at their principal place of residence and immediately notify the other party of any change thereto;
(c) their mobile telephone number and immediately notify the other party of any change thereto;
(d) their email address for correspondence in relation to the children and immediately notify the other party of any change thereto; and
(e) workplace changes.
25. Each party will advise the other forthwith of all of the following:
(a) any medical diagnosis/ emergency and/or hospitalisation;
(b) medical and dental appointments which have been scheduled for child, regardless of which parent child is scheduled to live with at the time of the appointment;
(c) the outcome of medical appointments attended by the child while she is living with them, including but not limited to any advice from a medical professional and a detailed description of any prescription given by that medical practitioner and shall ensure that the medication is provided at handover of the child.
26. The parties be at liberty to take the child on an overseas holiday outside the Commonwealth of Australia to a country listed as Level 1 or Level 2 on the Travel Advice Register on during the time that the child is living with that parent pursuant to paragraphs 20 and 21 above, with that parent to provide the other parent with no less than 28 days' notice prior to the intended travel.
27. The parties be restrained and there be an injunction granted restraining either party from:
(a) denigrating the other or a member of the other’s family or discussing any dispute between the parties to or within the presence or hearing of, the child and from permitting any other person to do so;
(b) removing the child from the Commonwealth of Australia, without the prior written consent of the other party or an order of this Honourable Court, where travel is intended to a country which is listed as higher than Level 2
on the Travel Advice Register on and in this situation, the parties shall do all reasonable acts to register with and
(c) changing the child’s principal place of residence from the Metropolitan area of Western Australia without the prior written consent of the other party or an Order of this Honourable Court.
28. The husband and the wife do all things and sign all documents necessary to:
(a) authorise the child’s school to provide to the other parent copies of any school reports, newsletters and communications including photograph order forms, school camp/ activity/ concert information, in relation to the child and each parent be at liberty to attend any school event and for the parties to keep each other informed of the contact details of any such school and day care;
(b) authorise the child’s treating health practitioners to provide the other parent with copies of any documentation or any information he or she may request from them and for the parties to keep each other informed of the contact details of any such practitioners; and
(c) maintain a current passport for the child.
17The orders proposed by the mother were as follows (errors in the original):
1. All previous child welfare orders be discharged.
…
3. The child [ERICA HART] born [in] 2008 live with the Respondent Wife.
4. The parties have equal shared parental responsibility for [Erica].
5. [Erica] spend time with the Applicant:
(a) in a two weekly cycle as follows:
i. Week 1 – from the commencement of school or 8.30am Monday until 5.00pm Tuesday; and
ii. Week 2 – from the commencement of school or 8.30am Friday until 5.00pm Tuesday;
(b) For the Applicant’s birthday, from 4.00pm the evening before the birthday until the commencement of school or 10.00am in the event of a non-school day the next day;
(c) Where Father’s Day falls in Week 1 as per paragraph 5(a)(i) above, from 9.00am on Father’s Day with the time to extend through until the usual time at the commencement of school or 8.30am Monday;
(d) For Christmas:
(i) Commencing in 2013 and each alternate year thereafter, from 3.00pm Christmas Day until 5.00pm Boxing Day, with the Applicant to ensure that Erica telephones the Respondent by no later than 9.00am on Christmas Day;
(ii) Commencing in 2014 and each alternate year thereafter, from 9.00am Christmas Eve until 3.00pm Christmas Day
(e) For Easter:
(i) Commencing in 2014 and each alternate year thereafter, from 5.00pm on Maundy Thursday to 10.00am Easter Sunday;
(ii) Commending in 2015 and each alternate year thereafter, from 10.00am Easter Sunday to 5.00pm Easter Monday
(f) For Erica’s birthday, on a day where Erica would not otherwise be in his care, from the conclusion of school until 6.30pm and in the event of a non-school day, from 9.00am to 1.00pm that day;
(g) By telephone between 6.00pm and 7.00pm
6. The Applicant’s time with the child be suspended as follows:
(a) For the Respondent’s birthday, from 4.00pm the evening before the birthday until the commencement of school or 10.00am in the event of a non-school day the next day;
(b) Where Mother’s Day falls within Week 2 as per paragraph 5(a)(ii) above, from 9.00am Mother’s Day until the commencement of school or 8.30am Monday;
(c) For Christmas:
(i) Commencing in 2013 and each alternate year thereafter, from 9.00am Christmas Eve until 3.00pm Christmas Day;
(ii) Commencing in 2014 and each alternate year thereafter, from 3.00pm Christmas Day until 5.00pm Boxing Day, with the Respondent to ensure that Erica telephones the Applicant by no later than 9.00am on Christmas Day;
(d) For Easter:
(i) Commending in 2014 and each alternate year thereafter, from 10.00am Easter Sunday to 5.00pm Easter Monday;
(ii) Commencing in 2015 and each alternate year thereafter, from 5.00pm on Maundy Thursday to 10.00am Easter Sunday
(e)For Erica’s birthday, on a day where Erica would not otherwise be in the Respondent’s care, from the conclusion of school until 6.30pm and in the event of a non-school day, from 9.00am to 1.00pm that day;
7. Both parties be at liberty to holiday with the children within Australia upon the provision of 28 days written notice to the other parent, such notice to include proposed travel dates, destination and details of travel, accommodation and any other contact details.
8. The notice referred to in paragraph 7 above shall also include two proposals for any time missed by the other parent to be made up.
9.In the event that the Applicant wishes to exercise travel in accordance with paragraph 7 above, the length of travel be limited to:
(a) 5 consecutive nights in 2013;
(b) 6 consecutive nights in 2014;
(c) 7 consecutive nights in 2015;
(d) As agreed between the parties thereafter.
10. As soon as practicable, the Applicant notify the Respondent if he is unable to care for [Erica] during the times she lives with him pursuant to these Orders, in which case [Erica] live with the Respondent during those times.
11. Unless otherwise agreed by the Respondent, the Applicant arrange and pay for child care for [Erica] during the Respondent’s work hours for days when [Erica] would ordinarily be in his care but he is unavailable to care for [Erica] and she is therefore living with the Respondent pursuant to the preceding paragraph.
12. Each parent be at liberty to telephone the children when spending time with the other parent or in the event that such facilities are available, to utilise Skype or similar facilities to communicate with the children.
13. Each party communicate with the other and keep them reasonably informed of any medical emergencies or significant medical issues concerning the children whilst the children are in their care.
14. To the extent that it may be necessary, both parties sign all documents and do all things as may be necessary to:
(a) authorise the [Erica’s] school or daycare if applicable to provide to the other parent copies of any school reports, newsletters and communication in relation to [Erica] and each parent be at liberty to attend any daycare or school event and the parties keep each other informed of the contact details of any such school or daycare;
(b) authorise [Erica’s] treating health practitioners to provide the other parent with copies of any documentation or any information he or she may request from them and the parties keep each other informed of the contact details of any such practitioners.
…
19. The parties will ensure that any high school [Erica] may attend will be no greater than 10 kilometres from [Erica’s] home.
20. After [Erica’s] 8th birthday, the parties do all things to attend upon a Family Dispute Resolution service to review these Orders.
18The issue relating to Erica’s primary schooling was resolved on the basis she will attend School A. Sensibly, I was not asked to determine the choice of her secondary school, although the parents remain in dispute on that topic.
The law
19These proceedings are governed by the Family Law Act1975 (Cth) (“the Act”), which makes Erica’s best interests the paramount consideration.
20In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests are met by:
(a)ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests;
(b)protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(c)ensuring they receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
21In determining what is in Erica’s best interests, I must consider the matters in s 60CC of the Act, which are divided into “primary considerations” and “additional considerations”.
22The Act was amended in 2012, but not all of the changes apply to these proceedings as they were started before the amending legislation commenced. Consequently, I am not obliged (at least by the terms of the Act) to give greater weight to the second of the “primary considerations” (the need to protect children from harm) than to the first (the benefit to children of having a meaningful relationship with both parents).
23Section 61DA(1) requires me to apply a presumption that it is in Erica’s best interests for her parents to share parental responsibility equally. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with them, has engaged in child abuse or family violence (as defined in the Act). Furthermore, s 61DA(4) provides that this presumption may be rebutted by evidence that it would not be in the child’s best interests for the parents to have shared parental responsibility. In the present case, the parents agree they should have equal shared parental responsibility.
24The allocation of parental responsibility does not govern the time Erica will spend with each parent. However, if an order is made for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time or, failing that, “substantial and significant time”, with each parent would be in Erica’s best interests. If either alternative is in her best interests, then I must consider making such an order, provided I have also found the arrangement to be “reasonably practicable”.
25The dichotomy between the “primary” and “additional” considerations has been considered in judgments of the Full Court which have discussed the significance of Parliament having described just two of the s 60CC factors as being “primary” considerations. Those judgments essentially adopt the following analysis of the Honourable Professor Richard Chisholm in “The Family Law Amendment (Shared Parental Responsibility) Act 2006: An Overview” Family Court Judges’ Conference, Adelaide, 26 May 2006, p 10:
It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolutes. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration … Third, and most obviously, it is expressly stated in [paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.
26It is within this legal framework that I must determine this case.
The primary considerations
27I will deal first with the primary considerations.
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
28Erica will undoubtedly derive great benefit from having a meaningful relationship with both parents. But her relationship with them will be meaningful whether or not I make orders as proposed by the husband or those proposed by the wife. In this context, I note that although the parties separated when Erica was relatively young, and although the husband has had a number of interruptions to his time with Erica (due to his [work] commitments), he nevertheless has a relationship with her which he describes as “magnificent”.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
29Erica will not be exposed to abuse, neglect or family violence in the care of either parent. The husband claimed he had been the victim of violence perpetrated by the wife, but to the (very limited) extent there was violence in the relationship, I found it impossible to determine the precise circumstances and consider both parties were probably at fault.
30The husband’s stated concerns about Erica being in the company of Gary are clearly genuinely held, but I am not prepared to placed much weight on them given that, at the last minute, the husband elected not to require Gary to be cross-examined.
The additional considerations
31I turn now to the additional considerations.
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
32Erica was too young to provide any formal expression of wishes. I accept it is likely that she has, on occasions, expressed reservations about leaving the wife for an extended period and on occasions has expressed a desire to remain longer with the husband. I do not consider these matters to be of great significance in determining the dispute.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
33Erica has a very good relationship with both her parents, with the husband’s fiancée and with the paternal grandparents and maternal grandmother. I am also satisfied she has a very strong relationship with her half-brother, Gary, and sister, Melanie.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
34Both parties complain about lack of cooperation or respect shown by the other in seeking to negotiate arrangements concerning Erica, particularly changes to arrangements. There is some substance in both sets of allegations, but I was not persuaded either parent was noticeably less cooperative than the other. Regrettably, their post-separation behaviour mirrors their hostile interactions during their relationship.
35There can be no doubt that the husband’s variable professional commitments since separation have been a major source of friction. If he was, in the future, to obtain more regular employment, this source of conflict would be removed, since it would be unnecessary for the parties to bicker about “make-up” time or cope with the difficulties associated with the short notice of changes in the schedule.
36Although, the husband complained that the wife did not support his relationship with Erica, he acknowledged she has always ensured Erica attends for the court ordered visits, save for one occasion following an unpleasant altercation between the husband and Melanie.
37The important thing is that Erica’s relationship with the husband and his fiancée has flourished and I doubt this would have occurred had the wife been actively undermining it. One of the matters on which the husband based his belief that the wife was denigrating him arose out of Erica saying theatrically, in the middle of a make-believe game, “Oh no, [Mr Hart], you’ve ruined my life”. The husband was convinced this must have come from something the wife said to Erica or in her presence. However, having viewed Erica’s favourite “Barbie” DVD, I have no hesitation in accepting the wife’s explanation about where Erica picked up this expression.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
38The result of making orders as proposed by the husband will be that Erica will spend two more nights a fortnight with him than she presently does, but two less nights a fortnight with the wife. I do not consider this will have any real significance for the relationship between Erica and her parents, since this will depend much more on the quality of the time Erica spends with them, rather than on the arithmetical division of the time.
39On the other hand, if the wife is correct in asserting that Erica does not cope well with lengthy absences from her, then the additional two nights (which the husband proposes could be taken as part of a block of seven) will potentially cause Erica some distress. I was inclined to accept the wife’s evidence on this issue, but I accept that the negative impact associated with long absences from the wife is likely to lessen as Erica matures.
40A further effect of Erica spending more time with the husband is that there will be more opportunity for her routine to be disturbed if he continues to travel away in the course of his work. There will also be somewhat less opportunity for Erica to spend time with Gary and Melanie, since it seems highly unlikely Gary will spend any time with the husband in the future, and unlikely Melanie will do so, at least in the short-term.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
41There is no practical difficulty or expense associated with either of the proposed arrangements, given that the parents live in close proximity and also close to Erica’s school. However, one advantage of the husband’s proposal is that there would be less “handovers”.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
42Both parents are competent and able to provide for all of Erica’s physical and intellectual needs. The husband would be assisted by his fiancée who has child care qualifications, a pleasant disposition and enjoys a good relationship with Erica. He would also be assisted, if needed, by his parents, who enjoy an affectionate relationship with Erica. Similarly the wife may have the assistance of Gary and Melanie, but would be more likely, where needed, to rely on her mother, who lives nearby and with whom Erica has a very good relationship.
43There are other matters relevant to this factor which I will consider when explaining the orders I propose to make.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
44There were no matters arising under this factor of any relevance save that I consider there is some substance in the wife’s concern that Erica has not yet reached the level of maturity where she would comfortably cope with being parted from the wife for long periods. This is not to suggest that Erica does not thoroughly enjoy all the time she spends with the husband and his fiancée.
(h) if the child is an Aboriginal child or a Torres Strait Islander child …
45Erica is not of Aboriginal or Torres Strait Islander descent.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
46Both parents have a very good attitude to Erica and take their responsibilities as parents seriously. Each of them is keen to be as big a part of Erica’s life as possible.
(j) any family violence involving the child or a member of the child’s family;
47I have already mentioned this issue and do not consider it a factor of significance.
(k) any family violence order …
48There are no family violence orders.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
49Erica is only five years old and the possibility of further proceedings cannot be ruled out, especially given the incapacity of her parents to resolve matters amicably.
50I acknowledge that if an order for equal shared care is not made now, the husband will potentially “have another go” later, whereas if such an order was to be made now I consider it unlikely the wife would seek to challenge it in the future. Nevertheless, my obligation is to make the order I consider is in Erica’s best interests, even if that leaves open the possibility of further proceedings at some later stage.
(m) any other fact or circumstance that the court thinks is relevant.
51The wife suggested there would be difficulties in obtaining out of school care to fit around a shared care arrangement, but I am satisfied these can be overcome. What was of most interest about the discussion concerning out of school care was the absence of any hint by either parent of having thought about making a joint arrangement.
Section 60CC(4)
52Subsection 60CC(4) of the Act applies, since the proceedings were commenced before its repeal by the 2012 amendments. The provision is lengthy and it is sufficient to say that I consider I have dealt adequately with it when discussing other provisions of the Act.
Discussion
53The husband and wife agree there should be an order for equal shared parental responsibility. Although this will be challenging, given their communication issues, I will make such an order. In doing so, I acknowledge that both parents have Erica’s best interests at heart and will hopefully realise that cooperative, conflict free parenting will be of far greater value to Erica than her spending a few more nights with either of them.
54As I propose to make an order for equal shared parental responsibility, I am required to consider whether it is in Erica’s best interests for there to be an equal shared care arrangement and whether such an arrangement would be reasonably practicable.
55The parents live in close proximity and Erica’s school is nearby. Erica is very familiar with both homes. Both parents have the capacity to provide for her needs. The main thing standing in the way of a finding that an order for equal shared care is “reasonably practicable” is the uncertainty associated with the husband’s employment. Although the husband would like to find suitable work in Perth after his career ends (which I accept will probably occur soon), he is understandably keen to continue his involvement with sport, which may take him away from Perth commentating, coaching, public speaking and/or undertaking promotional work.
56In 2012, the husband was away for 60 days when he was meant to be having Erica under the terms of the interim orders. He was away again from 27 March 2013 to 25 May 2013. On some occasions, the husband gave only very short notice of his departure. He is actively pursuing work which would take him away from Perth in the future. This would then raise issues as to who should look after Erica in his absence and raises the strong potential for a continuation of past disputes about “make-up” time. The husband’s proposed work away from Perth is also not restricted to work related to sports. He has set up a business which, if it gets off the ground, would result in him being “required to conduct [seminars] throughout Asia …”
57Although the husband says he would attempt to arrange his work around his commitments to Erica, I consider this would be difficult to achieve. If a good opportunity presented itself, the husband would be unlikely to turn it down merely because it conflicted with his obligations to Erica. The chances are he would take the work, and then make arrangements for his fiancée, his parents or the wife to step in to help out.
58Having said this, I am not entirely convinced that the husband is likely to be presented with many opportunities which would result in him being away from Perth for extended periods. He himself acknowledged that he will not be in the first tier of people who are able to make a good living after their sporting career ends. Accordingly, the reservations I do have about the “reasonably practicability” of a shared care arrangement would not be the primary basis upon which I would decline to make an order for equal shared care.
59My primary basis for not making such an order is that I do not consider an equal shared care arrangement would be in Erica’s best interests. In arriving at this view, I have taken into account a number of matters, some of which were informed by my own impression of the parents formed during the trial:
•The current arrangement is working well enough; Erica is accustomed to it, happy and enjoying good relationships with everyone in the family.
•I am satisfied the wife has been Erica’s primary carer and the constant figure in her life and therefore is likely to be the parent to whom she is most closely attached.
•I accept there is likely to be some substance in the wife’s concerns about how Erica would cope with a move to longer periods of time away from her, which is not to suggest that Erica does not greatly enjoy the time she spends with the husband (and with his fiancée, who appears extremely fond of Erica and who Erica likes very much).
•Importantly, the wife seemed to me to be at least somewhat more child focussed than the husband, in that she appeared a little more inclined to look at issues by reference to their impact on Erica.
•The parenting styles of the parties are quite different, with the husband more inclined to be somewhat disciplinarian in his approach (which is not a problem now while Erica is young and compliant, but could assume greater significance later in Erica’s life).
•Although the husband seeks to defend his actions, his conduct in redecorating Melanie’s room on the very morning after his argument with her revealed an approach to parenting that leads me to question how well he would manage Erica once she passes the complaint stage of her development.
•Although of lesser concern than the redecoration incident, the husband’s case was not advanced by his conduct in allowing Melanie, who had just turned 17, to travel interstate with her boyfriend for “schoolies”, after the wife had forbad her from doing so. Although this was an instance of the wife being more of a “disciplinarian” than the husband, I do not consider it augers well for an equal shared care arrangement, where both parents would desirably back the other up on issues of significance.
•My impression is that Erica will cope better if it is clear to her that she has one home and visits another, rather than having two homes. Regrettably, on either scenario, there remains a real possibility that Erica will learn to “play off” the two parents, in the same way Melanie did after separation.
•The more time Erica spends with the wife, the greater the opportunity for her to spend time with her half-brother and sister, whether they be living in the same home or merely visiting. Although the husband has understandable concerns, which the wife shares, about some of the behaviour of both the older children, the fact is they are Erica’s siblings and, in my view, it would be desirable for them to keep in as close contact as possible.
60In arriving at my decision, I have not overlooked the valid point made by the husband that a week-about regime is simple and easy for a child to understand. I accept also his contention that a week-about arrangement would potentially make it easier for him to arrange his work commitments. I have also not overlooked that it would give the husband greater opportunity for involvement in Erica’s schooling, although he will have an opportunity to be involved in any event. I also have not overlooked his concern about Erica becoming over-excited during the visit when she spends only one night with him and his fiancée.
61In her oral evidence, and notwithstanding what she sought in her Minute, the wife said that her preferred position was that Erica should spend three nights with the husband in one week and two nights with him in the other, rather than the current four/one arrangement. This would reduce the amount of time that Erica is away from her at any one time and would also deal with the husband’s concern about the fleeting nature of the visit when Erica comes for just one night. I consider there is some merit in what the wife says. However, the husband’s preference, if equal shared care is not ordered, is that Erica spends five nights in a row with him rather than the current four/one arrangement – even though this would mean she would not see him for nine days in succession.
62In my view, the current arrangement is working well enough and I would be concerned, for the reasons the wife expressed, to change the arrangement to a five/nine arrangement straight away. However, as Erica matures, I consider it would be in her interests to move to a regime that retains the amount of time she spends with the husband, but reduces the number of transfers between the two homes. In my view, that should commence when she turns eight, by which time she will be a little more mature and better able to cope with lengthier absences from both parents. In the meantime, if the parents agree, they could change the current arrangement to a three night/two night arrangement. However, failing such agreement, I propose to order a continuation of the current arrangement until Erica turns eight. I note that this arrangement satisfies the “substantial and significant time” formula in the Act, and I find it to be both reasonably practicable and in Erica’s best interests.
Caring for Erica in the absence of other parent
63I turn now to other issues which require resolution about Erica. The first relates to arrangements to be made if the parent with whom Erica is meant to be living is unable to care for her personally.
64This issue primarily relates to the husband, given it is his work which will more likely take him away from Perth from time-to-time. His proposal is that if he is away for three nights or less, then Erica would reside with either his fiancée or his parents. Erica would only be required to return to the care of the wife if he was away from home for more than three nights.
65The wife’s position is that she has no difficulty with the husband’s fiancée or parents caring for Erica during the daytime when the husband is away, but she wishes to have Erica return to live at her home if he is away overnight. In advocating this outcome, the wife accepts that the husband’s fiancée and his parents are capable of caring for Erica and she also accepts they enjoy a good relationship with her. Her position, however, is that it is preferable for one or other of the parents to care for Erica if the other is unavailable.
66I consider an outcome partway between the two proposals would be in Erica’s best interests. There would be some disruption to Erica in moving back and forth between the two homes if the husband was to be away for just one night. If he is to be absent for just one night, I consider Erica should stay with his fiancée or his parents. But if the absence is longer than one night, then she should return to live with the wife for the period of the absence. The same would apply if it is the wife who is absent.
67Although the husband’s career is likely to take a new path soon, there may still be occasions when he is away from Perth for extended periods in the same way as has happened previously. For example, in 2012 the husband missed a total of 60 days (out of a total of 130) when Erica was meant to be in his care. During his previous long absences, the husband’s parents have not been able to spend time with Erica. The wife and the husband’s parents have always had a fairly “cool” relationship and communication between them remains difficult. Nevertheless, it is important for Erica to keep in touch with the husband’s family and I therefore propose that Erica be able to have a two-night “sleepover” with the husband’s parents during any period in which the husband is absent from Perth for more than one month.
Christmas
68The next issue relates to sharing of time at Christmas. The wife’s proposals would ensure that Erica sees both sides of the family on Christmas Day, whereas the husband’s proposals would involve Erica spending Christmas Day with one parent one year and the other parent the following year. The husband’s rationale was that he has relatives living in the country and that if there has to be a handover on Christmas Day it makes it difficult or impossible to ensure Erica sees his family. The wife’s position was that Erica would want to see all members of the family on Christmas Day, it being a very special occasion for a little girl.
69I note that the husband’s parents now live in Perth and his only sibling lives [overseas]. The husband’s family has a holiday home [just outside of Perth] and he acknowledged that a handover on Christmas Day would not be a problem if Christmas was being celebrated in Perth or just outside of Perth. The difficulty would arise if Christmas was being celebrated at the home of aunts and uncles, who I understand live [further away from Perth]. The husband did not give evidence as to the regularity with which his family spends Christmas at a location other than Perth or just outside of Perth.
70The husband’s proposal is entirely reasonable, but regrettably not all reasonable proposals can be accommodated at Christmas, and the wife’s proposal is also reasonable. In my view, while Erica is still very young, and has siblings, it is preferable for her to be able to see them on Christmas Day every year. I therefore propose to make the orders sought by the wife. In my view, however, that arrangement should be reviewed by the parents at the time Erica is say ten, with a view to considering whether or not it may be preferable thereafter to share Christmas in the way the husband proposes.
Easter
71The husband proposes that one parent have Erica for the whole of Easter in one year and the other have her the following year. The wife proposes that Easter be shared each year. Both proposals have attractions, but I preferred the husband’s for the reason he gave, namely that it will allow Erica to have a holiday away from Perth or visit relatives in the country.
Birthdays
72The husband’s proposal was for Erica to spend her birthday with one parent one year and with the other parent the following year, whereas the wife proposed each birthday be shared. The husband conceded that both proposals were trying to be fair. There were also some minor differences between the proposals for the parents’ own birthdays. I intend to make the orders sought by the wife for Erica’s birthday and the orders sought by the husband for the parents’ birthdays.
School holidays
73The husband wishes to be able to have Erica for block periods of up to 14 nights during school holidays, whereas the wife considers this too long for her to be away at one time. Her proposals would permit the husband to take Erica away for up to five consecutive nights in 2013, six consecutive nights in 2014 and seven consecutive nights in 2015, with arrangements thereafter to be by agreement.
74Erica has only ever once been with the husband for as long as a week at a time (when the wife went on a training course in 2011, albeit Melanie was staying with the husband at that time). I accept the wife’s evidence that Erica was teary and clingy when she returned to her and was unusually calling for her in the night.
75In my view, the wife’s school holiday proposals are in Erica’s best interests, save that I consider there should be a default position included in the orders if the parties cannot reach agreement from 2016 onwards. If agreement is not reached, then I consider Erica’s holiday time with the husband from 2016 onwards should be taken in two week blocks (during the Christmas holidays) and one week blocks (in the other school holidays).
76The husband seeks detailed orders about arrangements for overseas holidays. While I accept neither parent is a “flight risk” I accept the submission of counsel for the wife that this issue is premature. The parties should consult about such matters and attempt to reach an agreement. If there remains a dispute, then the matter can be brought back for the Court to consider in the light of a precise proposal. If consent to a holiday is unreasonably withheld there could be costs consequences.
Notification of contact details
77The husband wishes to be kept informed of changes in the wife’s workplace so that he can contact her if she is not available on her mobile in an emergency. He acknowledged that he could not remember a time when he was unable to contact her when he needed to. The wife considers it adequate for the husband to have her mobile telephone number, and I agree.
Transport arrangements
78Although neither party sought an order about transport, I was informed that the husband both collects and returns Erica for the purposes of visits, but that it had been agreed that if either party moves more than 10 kilometres from the home of the other then the parent who is spending time with Erica will collect her and the other parent will return her. I see no need to make orders about this, given the orders will be long and convoluted enough already.
PROPERTY SETTLEMENT
79The parties agree the husband will keep the former matrimonial home in which he is living and the wife will keep the investment property in which she is living, as well as the small unit owned by the parties, but occupied by the wife’s mother.
80There is a dispute as to whether a sum of $100,000 should be notionally added back into the “pool” of assets, being an amount the husband paid to his parents at the time of separation, allegedly in repayment of a debt. On the basis the $100,000 is kept out of the pool – and assuming some other issues are resolved in his favour – the husband proposes an equal division of assets. On the basis that the $100,000 is brought back into the pool, the wife seeks a 60:40 division of assets in her favour.
Property settlement approach
81Section 79 of the Act, which governs these proceedings, relevantly provides that:
79Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them — altering the interests of the parties to the marriage in the property; or
(b)…
including:
(c)…
(d)an order requiring:
(i)either or both of the parties to the marriage; or
(ii)…
to make, for the benefit of either or both of the parties to the marriage … such settlement or transfer of property as the court determines.
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
82It will be noted that s 79(4)(e) incorporates, by reference, the factors in s 75(2) “so far as they are relevant”. It is unnecessary to set out all of the factors here, but later in these reasons I will refer to those that are relevant.
83Prior to the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), applications for property settlement were commonly dealt with by reference to what was called a four step process. These steps required the trial judge to:
•identify and value the assets and liabilities of the parties;
•assess each party’s contributions to the assets;
•assess a range of factors set out in s 79(4)(d) to (g) of the Act; and then
•consider whether the proposed orders are just and equitable.
84The jurisprudential basis for the process was well established – see the line of cases cited in Hickey & Hickey and Attorney-General of Australia (2003) FLC 93-143 at [39].
85Although the four step process has been regularly applied, the Full Court has stressed it is no more than a means to an end, since the statutory obligation permits alteration of existing interests only when it is just and equitable to do so. See Norman & Norman [2010] FamCAFC 66 at [60] and Martin & Newton (2011) FLC 93-490 at [305] and [306].
86Although the four step process was not disapproved in Stanford, it was not approved either. Given how the High Court resolved the dispute, there was no need for a pronouncement either way. However, the decision focuses attention on the importance of not making an order adjusting property interests unless it is just and equitable to do so.
87In many cases it will be readily established that it is just and equitable to adjust existing interests in property. The reasons for this appear in Stanford at [42] and it is common ground those reasons apply in the present matter, where both parties want the Court to adjust existing interests in property now that their relationship has come to an end.
88The High Court in Stanford also laid down three “fundamental propositions” to guide judges in approaching the task under s 79. These were summarised in Bevan & Bevan (2013) FLC 93-545 at [73] in these terms (original emphasis):
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
89I will be guided by these propositions in determining the present dispute.
Significant financial transactions
90Before identifying the existing interests in property, it will be helpful to set out some of the more significant financial transactions during the relationship.
91The husband and wife were both young when they commenced their relationship. Neither had any assets of significance. The wife was in receipt of social security and the husband was working as a labourer.
92The husband and wife initially rented a home; however, when the wife fell pregnant with Melanie in 1995, the husband’s parents suggested they move into an investment property they had in [Suburb V]. The husband and wife remained living there until 2002 (except for a period of either six months or a year when they rented elsewhere). Save for a few payments made at the commencement of their occupation, they did not pay rent.
93In 2002, the husband and wife moved into a home they purchased in [C Street, Suburb V]. The husband’s parents advanced $100,000 to assist in the purchase but there is controversy as to whether this was a gift or loan. The mortgage which was obtained to complete the purchase of C Street was quickly discharged, using income the husband received as a professional sportsperson in 2002/03. Although the mortgage was discharged quickly, no repayments of capital or interest were ever made to the husband’s parents for the funds they advanced – until the parties separated, whereupon the husband promptly paid them the amount of $100,000 they had originally advanced.
94In 2003, the parties took out a further mortgage to acquire another property in [T Street, Suburb V]. They moved into this property and let the property at C Street.
95In about 2006 (or 2004 according to the wife), the husband and wife used their savings to purchase a unit at [O Street, Suburb V]. The property was acquired as a home for the wife’s mother; who has continued to reside in the property ever since.
96At the time of separation, the husband and wife agreed they would each take $50,000 from their savings. The husband was about to go overseas and said that the arrangement was made to allow the wife to cover expenses for herself and the children in his absence. The wife still has about half the money, whereas the husband has spent his.
What are the existing interests in property?
97I find the assets and liabilities at the time of trial to be as set out in the table below.
98I have excluded items of minor value. I have also not included the [Holden Captiva], because neither party wants it and it will therefore be sold. The trust mentioned in the table was treated in these proceedings as if it were the husband’s alter ego.
| Asset | Value $ | Ownership |
| [T Street] (husband’s home) | 830,000 | Joint |
| [C Street] (wife’s home) | 660,000 | Joint |
| [O Street] (grandmother’s home) | 440,000 | Joint |
| Shares | 155,348 | Trust/husband |
| Bank Account [A] | 540,578 | Trust |
| [Holden Commodore] | 11,000 | Husband |
| Bank Account [B] | 1,962 | Husband |
| Bank Account [C] ([Husband’s company]) | 9,931 | Husband |
| Personal items/furniture | 10,000 | Husband |
| Superannuation | 237,187 | Husband |
| Dwyer Durack Trust Account | 40,000 | Husband |
| [Company X] (half bank account) | 11,000 | Husband |
| [Mercedes] | 24,100 | Wife |
| Bank Account [D] | 24,092 | Wife |
| Superannuation | 9,140 | Wife |
| Personal items/furniture | 10,000 | Wife |
| Total Assets | 3,014,338 | |
| Less Liabilities | ||
| Mercedes loan | (20,000) | Wife |
| MasterCard | (1,000) | Husband |
| Unpaid legal fees | (54,801) | Wife |
| Unpaid legal fees | (41,368) | Husband |
| Total liabilities | (77,169) | |
| Net Assets | 2,897,169 |
99There were few controversies relating to the composition of the asset pool. The only matters on which I need to rule are as follows:
Loan from the husband’s parents
100As earlier recorded, the husband’s parents provided $100,000 in 2002 to assist the husband and wife to acquire C Street. The evidence concerning the arrangements (if any) for repayment of the advance was – like so many other similar family arrangements – unsatisfactory. I was not persuaded that any of the witnesses gave entirely accurate testimony on this topic, with much of it having the appearance of self-serving ex post facto reconstruction.
101Doing the best I can with the evidence, I consider that the primary motivation of the husband’s parents was to give the husband and wife a head start in obtaining their own home. I have no doubt that, when handing over the money, they hoped one day to see it come back to them. But they stood by, without making demand for repayment, as the husband and wife went on to acquire another, more expensive home, without repaying them – while at the same time the husband’s career flourished. The money was not even repaid at a time the husband had over $1 million in the bank.
102Notwithstanding the wife’s claim that she was referring to payment of money to the husband’s parents for a different purpose (i.e. the occasional use of their [property just outside of Perth]), I consider that, from time-to-time, the wife probably admonished the husband in the presence of his parents for not having paid back the $100,000. I doubt she expected he would do so, but rather made these remarks by way of acknowledgement of the generosity of the husband’s parents in having provided the funds. The husband certainly ignored what she said, and, significantly, it was only when the parties separated that he decided to “repay” the money. Had it not been for the separation, the money would almost certainly not have been repaid.
103I find that the advance by the parents was neither a gift nor a loan. Rather it was part of a loose family arrangement by which the parents hoped to assist the husband and wife and anticipated that they might, one day, obtain reimbursement, in some form or another. I consider it unlikely that the wife agreed to repay the money at the time of separation, as the husband asserts, even if she perhaps agreed with his suggestion that “we pay off all the debts” or words to that effect.
104If the advance was ever formally a “loan”, I consider any demand for repayment would have probably have been statute barred. Nevertheless, I do not propose to notionally “add back” the $100,000 into the asset pool.
105I do not accept that the husband’s parents are holding the $100,000 on trust for the husband and indeed that proposition was not directly put to them. Even if I were to put the money notionally back into “the pool”, I would then need to take account of it, either when assessing the contributions or in considering s 75(2)(o). Such an account would need to recognise that the money came from the husband’s family, even if it was accepted – as I do – that the money was provided knowing it would benefit the wife, as well as the husband. In such an accounting it would also need to be recognised that the amount the husband’s family received back was worth much less than what they advanced. Finally, it would need to be recognised that the funds assisted the parties in putting together a small portfolio of real estate, which increased in value.
$40,000 held in husband’s solicitors’ trust account
106At the time of trial, the husband’s solicitors held in their trust account an amount of $40,000 the husband had provided on account of legal fees in these proceedings. Counsel for the husband properly conceded this was an asset, but submitted I should also take account of the husband’s unpaid legal fees. The husband claimed that the $40,000 had come from his post-separation income. The husband also said he had already paid $88,000 in legal fees, which he claimed also came from his earnings.
107It is noteworthy that the husband incurred significantly more legal fees than the wife. He has paid all his bills, whereas the wife has paid none, as she had an arrangement with her solicitors for them to be paid following the conclusion of the proceedings.
108At the conclusion of the trial, I directed both parties to provide a statement of the legal fees they had incurred in the proceedings. The wife’s fees were $34,715 for her solicitors and $20,086 for her counsel. The husband’s fees (to three sets of solicitors) totalled $117,419 and his counsel’s fees were $23,540. The husband’s solicitors advised that all his fees had been paid from the funds held in trust, save for an amount of $1,368 which the husband had paid from his own resources after the trial concluded.
109It will be seen that the husband has spent $86,158 more than the wife on these proceedings, but has no outstanding liability for legal costs. It cannot be right that this disparity in expenditure of funds be ignored based merely on a claim that the funds came from the husband’s earnings.
110I say this for two reasons. First, I will later find that the post-separation contributions were equal, but in arriving at that conclusion I will take into account the husband’s gross earnings, not what was left over after he paid his three sets of lawyers. Secondly, the husband could just as easily have paid the fees from the money that had been saved when the parties were together. It would seem to me an odd result, notwithstanding what may have been said in some authorities, if the outcome is different if a party elects to pay legal fees from pre-separation savings rather than from post-separation earnings. The net effect on the assets available for distribution is precisely the same (absent any suggestion of scrimping, saving and going without in order to pay the fees). In any event, it was acknowledged by both counsel that I should, in the exercise of the wide discretion conferred by the legislation, deal with this issue in the way I considered just and equitable.
111In my view, a more transparently just and equitable outcome will be achieved if I begin by not only including the $40,000 in the pool of assets, but also including as a liability the outstanding legal fees of both parties.
112There remains the issue of what (if anything) to do about the $86,158 disparity between the amounts expended on legal fees. I will come to that topic again when discussing s 75(2).
Capital Gains Tax
113The wife is concerned that both properties she is to receive as part of her settlement have been investments and would therefore attract capital gains tax (“CGT”) in the event of a sale. The wife estimated the CGT liability at $98,627; but provided no basis for that assessment. The actual amount of any CGT would depend on when the property was sold, the price at which it sells and the income of the owner of the property at the time of sale.
114The husband contends that as the wife has no plans to sell the properties, the potential CGT should be ignored altogether or at least not be included in the schedule of assets and liabilities. See Rosati v Rosati (1998) FLC 92-804. The wife submits that a fund should be set aside to cover the potential CGT, and in the event she sells either property within a specified number of years, the fund be used to discharge the liability. If the properties are not sold, then the fund would be distributed in the same proportions as the rest of the assets.
115There is no doubt that the CGT is not an existing liability. I have therefore not included it in the table of assets and liabilities. I will discuss the issue again later in the context of s 75(2).
Company X’s bank account
116The business [Company X], which is operated by the husband and his fiancée, has $22,000 in the bank. The husband said he was not due any of that money and, if anything, he had been overpaid $10,000 due to an “accidental transaction”. It was also submitted on his behalf that the business would also have liabilities, which have not been brought to account. No evidence was given of the existence or extent of such liabilities.
117The income of Company X has predominantly (about 70%) been derived from the husband’s exertions. The husband’s fiancée takes 40% of his income as a fee. This is more than she charges other clients, but she gave evidence of the additional effort she has had to make to ensure the husband is more “marketable”. In determining the appropriate level of her share of the income, it was not clear that account was taken of other benefits she receives from him, in particular occupation of the former matrimonial home. In the absence of any evidence of outstanding liabilities of the business, I propose to treat one half of the money in the account as belonging to the husband since the business is effectively jointly owned by the husband and his fiancée.
Contributions
118The wife contended that contributions should be assessed as being of equal value and said there should be a 10% adjustment in her favour on account of s 75(2) factors, bringing about a 60:40 division.
119The husband contended that contributions should be assessed 55:45 in his favour, but in advancing his propositions, counsel for the husband acknowledged that some of the matters on which he relied were more properly factors for consideration by reference to s 75(2). If contributions were assessed 55:45 in the husband’s favour, the husband’s counsel conceded there should be an adjustment of 5% in the wife’s favour on account of the s 75(2) factors, bringing about an overall equal division.
120The parties commenced their relationship with no assets of substance. By the time of trial, they had acquired a substantial pool of assets. Subject to specific matters raised by the husband, which will be discussed below, I am satisfied that contributions were of equivalent value – and I did not understand the husband to contend otherwise.
121The husband made a very substantial financial contribution (especially after 2002) but the wife made a very substantial contribution in her role as parent and homemaker. The husband would not have been able to undertake the work he did interstate and overseas were it not for the fact that the wife remained at home to care for the family.
122In arriving at my assessment of the value of the respective contributions, I have not overlooked the non-financial contribution the husband made, including his contribution as a parent. Nor have I overlooked the (very modest) financial contribution the wife made prior to separation.
123I consider that the parties’ contributions continued to be of equivalent value post-separation. The husband has earned a very good income, but again this has been possible only because of the wife’s contribution in continuing to care for the family, especially Erica. The wife has also commenced earning an income since separation, freeing the husband from the potential obligation to support her following her long absence from the workforce. Some of the income the husband has received from [his work] post-separation also relates to his service prior to separation.
“Unsupportive domestic environment”
124The husband argued that his contributions were made more difficult because of what was called an “unsupportive domestic environment”. One concrete example provided was that he had been injured during a game because he was thinking about an unpleasant phone call he had from the wife earlier that day.
125There is no doubt the wife did not want the husband to continue with his professional sporting career as long as he did. She persistently asked him to give it up, and it seems he frequently agreed he would, but then did not. The wife only agreed to have Erica when the husband agreed to give it up. When he did finally retire, it was only because the wife said she was going to leave him, and take the children.
126There is no doubt the husband wished the wife was more interested in his career and supportive of it. Unlike partners of his colleagues, she was “not too excited” when he earned selection and “basically could not give two hoots” about the progress of games and his career, whereas he saw himself cast in the role of “representing my country” – an expression he used on a number of occasions in his evidence. The wife’s conduct was contrasted unfavourably with that of his mother.
127I do not propose to grace this argument with too much discussion. The fact is that the wife did, on occasion, travel with the husband even though she was clearly not very interested in sports. Occasionally, she took the children with her, including four months spent overseas in 2004. However, her preference was to remain at home with the children and ensure they continued at school. If there was a choice between attending an award ceremony in the Eastern States or going to Melanie’s first day of the new school year, she chose the latter.
128I accept that many others in the wife’s position might have taken much greater interest and pride in their spouse’s career than she did. They may have availed themselves more extensively of international and interstate travel. They might also have spent a great deal more money than the wife appears to have done. However, it could not be said that she was unsupportive of his career, to the extent that she focussed on being at home and taking care of the children, thereby freeing him to undertake the very extensive travel, training and other commitments associated with his work.
129The husband was away for long periods. He admitted in cross-examination that there was one year when he was away for nine months; albeit he added that in the other years he was home for eight or nine months. This clearly placed a heavy burden on the wife who, for much of the time, was effectively a single parent. (Incidentally, I doubt the husband was right to admit he had been away for nine months in one year. It seems 2004 was the year he was away the most and that year he spent “only” 170 days away – i.e. a little less than six months).
130The husband’s career and the wife’s apparent lack of interest in it was one of the very sore points in this unhappy relationship. It is likely the parties’ recollections are clouded by their own perception of how the other behaved. I suspect that, in the process, the wife has failed to give some credit to the husband for assisting around the house and with the children when he was home and he, in turn, has overstated the extent of such assistance.
131What is clear is that the husband, through his own talent, earned a great deal of money during at least part of the marriage. In the last 12 years of the relationship he earned $3,973,439 from employment, including prize money. However, it is equally clear that he was able to do this only because the wife was available to care for the family. The reality is that this was an unhappy marriage in which neither party gave the other party the level of support they felt they deserved. I am not persuaded the wife’s conduct was such that it should make any difference to the assessment of contributions.
Rent free accommodation provided by husband’s parents
132The husband submits I should take into account the fact that the parties had rent free accommodation his parents’ Suburb V property, which they occupied from early in 1995 until 2002 (save for a period of either six months or a year when they lived elsewhere).
133The husband was in charge of the family finances and did not pay rent to his parents, save for a few payments at the commencement of their time at the property. The husband and wife did, however, meet the outgoings, maintained the property and undertook modest improvements.
134The husband acknowledged that while he and the wife may have had difficulty in paying rent when they first moved in to the home, as time went on they undoubtedly had the means of paying, but still did not do so. He explained this by saying that he was a “selfish son” and his parents were trying to “get us onto our feet”. I am satisfied this was the motive of the husband’s parents in not requiring payment of rent, noting that the arrangement commenced when they found out the wife was pregnant with Melanie.
135The wife acknowledged without reservation that it was a financial benefit not to have to pay rent. However, she says this ought not provide some advantage to the husband in the settlement for two reasons. First, because the husband’s parents acknowledged that their intention was to benefit both the husband and the wife. Secondly, she says there was an arrangement between the husband and his family for him to undertake unpaid work on their farm in return for the rent free occupation of the property.
136I accept that the husband’s parents intended to benefit both the husband and the wife; however, I nevertheless consider the rent free use of the property should be treated as a contribution made on behalf of the husband, since were it not for the relationship between the husband and his parents, the benefit would not have been bestowed: Pellegrino v Pellegrino (1997) FLC 92-789 at 82,728 and L and L [2004] FamCA 1010 at [31] and [32].
137I accept that the husband did, from time-to-time, do unpaid work around his parents’ property and that there was discussion between the husband and his father about this work being in lieu of rent; however, I am not persuaded there was any agreement that one would entirely offset the other. The husband said, and I accept, that his work on the property comprised at most two weeks per annum. Although there was little or no evidence about the value of the work and the rental value of the property, I have no doubt that the value of the latter far exceeded that of the former.
The $100,000 advance
138I have already explained why I have not “added back” the $100,000 paid by the husband to his parents after separation. The question remains, however, whether the husband should receive any advantage in the settlement as a result of the parties having had the interest free use of that money for many years. None of the parties to the transaction ever anticipated that the parents would receive interest on the money. They have received the money back, although its value at the time of repayment was much less than at the time of its advance. The money achieved the purpose for which the husband’s parents intended it, namely to provide some security for their son, his wife and their grandchildren. I am not persuaded that the husband should receive anything other than modest credit for the fact that the advance was free of interest.
Assessment of contributions
139In assessing contributions in percentage terms it is important to recognise that the asset pool is quite valuable. One per cent of the pool represents nearly $30,000 and an adjustment of that amount produces a $60,000 disparity between the parties.
140In my view, the contributions should be assessed at somewhere in the region of 51% to 52% by the husband and 48% to 49% by the wife.
Section 75(2) factors
141The wife proposes an adjustment of 10% in her favour on account of s 75(2) factors, whereas the husband says an adjustment of 5% would be appropriate. Both proposals were no doubt based on assumptions about the ultimate composition of the asset pool and a view about contributions which differ from the findings made above.
142The wife says there are three main matters which should lead to the 10% adjustment she seeks, namely:
(i)the husband has a far greater earning capacity than she has;
(ii)if her application in relation to Erica is successful, she will be the primary carer for Erica; and
(iii)the husband has re-partnered and has the advantage of living in a dual income home.
143The husband says there are matters which ought to reduce the extent of any adjustment the Court would otherwise be minded to make in favour of the wife. Although some of the submissions about these matters were directed at the assessment of contributions, the husband’s counsel acknowledged that some of them may more appropriately be dealt with pursuant to s 75(2)(o). I have left for consideration here those matters which appear not strictly related to contributions. The important thing is that they be considered at some point in the process, and nothing turns on precisely where they are considered.
144I will discuss these matters in the course of dealing with each of the factors mentioned in s 75(2).
(a)the age and state of health of each of the parties
145The parties are of similar ages, enjoy good health and will hopefully have many years left in the workforce.
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
146The property and financial resources of both parties have been discussed already.
147The wife is earning $65,000, having obtained [qualifications in her industry] since separation. Her long-term goal is to [obtain a promotion]. She appears a competent and resourceful person. She has already secured good increases in income since getting back into work. I consider she is likely to be able to earn an adequate income to support herself and Erica when she is living with her.
148It is more difficult to determine the husband’s future prospects. My impression is that he will be able to continue to use his celebrity and contacts, forged over a long career, in securing income from a variety of sources. It is highly unlikely the husband will be able to earn income from playing [sport] for more than a year or so, but while he keeps playing, he is likely to be well rewarded. However, when his playing career finally ends, I consider it is unlikely he will have a very lucrative income, given the number of other former players who would also be seeking to undertake the sort of work he wants.
149The husband’s own estimation is that he would earn between $70,000 and $90,000 per annum after he finishes playing sport. That may be an underestimate but I am not persuaded it is far from the mark. Although the husband obtained a commerce degree during the marriage, he has little experience in the field and I accept his evidence that he is probably not well suited to a career as an accountant.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
150Melanie has been living with her boyfriend and his family since March 2013 and is working. She has recently turned 18. Gary is also an adult. Although he has been living with his mother, he was looking for work on a farm at the time of trial.
151Both the husband and the wife will have the care and control of Erica, but as a result of my decision, she will spend more time with the wife than the husband.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person
152Both parties have the usual commitments to support themselves and Erica. Although the wife intends to allow her mother to continue to live rent free in the unit she will receive as part of her settlement, it was not suggested she had any legal duty to allow her to live there. The wife wants to help out her mother and can manage financially without the benefit of rent from the property, which I accept would be in the region of $420 to $440 per week.
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme …
153Neither party is entitled to a pension. Their superannuation entitlements have been included in the pool of assets.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
154Both parties will have an adequate standard of living.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
155Perhaps fortunately for the husband, the wife has obtained qualifications post-separation and therefore has no claim on him for spousal maintenance.
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor‘s debt, so far as that effect is relevant
156This factor is not relevant.
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
157There is no claim for maintenance, but it is to be noted that during the marriage the husband was able to obtain a degree. He also built up “a name”, which will be likely to lead to income in the future. I have already discussed the extent to which the wife assisted the husband during his career by looking after the children.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
158The marriage has not had an adverse effect on the husband’s earning capacity. There was no evidence to show that it affected the wife’s capacity either, but it is noteworthy that she has, since separation, been able to secure moderately well paid employment.
(l) the need to protect a party who wishes to continue that party’s role as a parent
159The wife accepts she must work, and needs to arrange her career around Erica. The husband is potentially limited also in the work he can undertake because of Erica.
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
160I accept that the husband lives in a dual income household, however, the income in that household is likely to be dependent to a significant extent on the income that he himself is able to generate. I note also that the wife had the opportunity to have a dual income household in that her previous boyfriend wanted to marry her, but she did not want to live with him. The husband’s fiancée does not appear to have any assets of substance (she owns a villa in [Suburb F], subject to a mortgage).
(n) the terms of any order made or proposed to be made under section 79
161The contribution assessment I have made means that, on the basis of contributions alone, the husband would have a slightly greater share of the assets than the wife would, if no s 75(2) adjustment was made.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB
162Not relevant.
(na) any child support under the Child Support (Assessment) Act1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
163The husband is assessed to pay child support and will continue to pay in the future, dependent of course on the level of income of the parties. He also wishes Erica to attend a private school and will, in addition to child support, pay the tuition fees and compulsory levies, as well as the cost of any laptop required by the school. The mother will pay for uniforms, school books and excursions.
164The wife said the husband was paying $450 per month in child support when she made her affidavit in May 2013, although the husband said in his affidavit sworn in March 2013 he was then paying $670 per month.
(p) the terms of any financial agreement that is binding on the parties to the marriage
165There was no financial agreement.
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
166There are number of issues potentially arising under this catch-all provision.
Legal fees
167The husband has incurred $86,158 more in legal costs than the wife. Had he not done so, these funds would have been available for division. While the husband claims that the funds he used to pay his legal fees came from his income, I have given him full credit for that income when deciding that contributions post-separation were of equal value.
168It is noteworthy, when considering the expenditure of such a large amount on legal fees, that the husband says he has disposed of the whole of the $50,000 he received when each party took $50,000 from their savings near the time of separation. The husband claims to have spent his money on living expenses, whereas the wife says, and I accept, that the money she still has in her bank account is the balance of her $50,000. The wife could, of course, have paid that money to her solicitors in discharge of portion of her legal costs. It would not be right for her to suffer some apparent disadvantage in the settlement due to her having held onto the money, rather than paying it towards the legal fees she must inevitably meet in the future.
169As Warnick and Boland JJ said in Hurst v Weber (2009) 233 FLR 337, at 348 at [34], the various ways in which the court attempts to deal with the issue of legal fees are “designed to avoid one party effectively bearing a proportion of the other party’s legal costs”. Given the findings I have made about contributions, if I made no further allowance for the fact that husband has spent so much more than the wife on legal fees, I would in effect be requiring her to bear a proportion of his legal fees. I therefore propose to take the disparity into account when determining the size of the s 75(2) adjustment (although recognising at the same time that if the husband had not spent the money on legal fees, he too would have received a proportion of it in the settlement).
Capital Gains Tax
170I have earlier referred to the potential CGT relating to the two properties to be retained by the wife. That liability has not been accounted for in the asset “pool”. I do not consider it appropriate to leave the parties tied together financially with a trust account arrangement along the lines proposed by the wife. I intend instead to have regard to the fact that while the husband’s home is CGT free, both pieces of real estate owned by the wife have the potential at some time in the future to attract CGT.
171In adopting this approach, I proceed on the basis that the comments made by the Full Court in Rosati (supra) should not be treated as if they were words in a statute. Thus the mere fact that there may not be “a significant risk that the asset will have to be sold in the short to mid term” does not lead inevitably to a conclusion that the potential for CGT to become payable in relation to the greater portion of the wife’s share of the settlement can simply be ignored. In deciding that at least some modest weight should be placed on the possibility of CGT becoming payable, I recognise that there was no evidence of the way in which the wife made her calculation and I also accept that there is no imperative for the wife to sell either property.
Rent free accommodation of O Street Property by wife’s mother
172The evidence about when the wife’s mother moved into the O Street property was unclear. I propose to accept the husband’s statement it was in 2006 (which would accord with the rough estimate given by the wife’s mother in her affidavit).
173Prior to the O Street property being purchased, the wife’s mother had been living in Homeswest accommodation, but this was infested with white ants and the husband and wife decided to buy a small unit for her to live in. This was a generous gesture on their behalf, and no doubt of considerable benefit to the wife’s mother. The husband’s evidence suggested that if he was not the instigator of the arrangement then he was certainly a willing participant. I doubted his evidence that he anticipated that this would be a short-term arrangement, although I do accept that he anticipated that the wife’s mother would pay rent. She did so, but only for about five months, after which no more payments were made when the wife’s mother ran into financial difficulty.
174I accept that the wife’s mother has maintained the property in good condition and met some outgoings. She also did some occasional babysitting for the family. The wife’s mother has also been on standby to help the wife following separation, which is a factor of some significance in the current financial arrangements since the wife may well have found it difficult to get back to work without this assistance.
175It is also, in my view, significant that the unit initially cost $245,000, but is now worth $440,000. Although it is difficult to tell what other investments the husband and wife might have made had they not purchased this unit for the wife’s mother, it is noteworthy that they have kept a very large amount of money in the bank over an extended period and they would therefore not necessarily have acquired another piece of real estate. As it turned out, the property they acquired has been a fairly good investment for them.
176I do not consider the use of the O Street property by the wife’s mother should be afforded anything than very modest weight in the settlement.
Payment of expenses for Gary
177Although not a matter raised in the husband’s Papers for the Judge, counsel for the husband argued that the husband should receive an advantage in the settlement as a result of him having provided financially for Gary from the time he was about one year old. He relied upon Robb and Robb (1995) FLC 92-555 as authority for this proposition.
178The wife claimed in her oral evidence that for much of the period of the relationship, Gary’s father paid child support of $50 per week. In the absence of any earlier statement to this effect in her affidavit, I was dubious about this evidence. Such payments as were made were paid in cash (according to the wife), and they were paid at handovers. The evidence suggested that Gary’s father had not always maintained contact with him and there was no evidence that he paid lump sums when he had missed seeing him for lengthy periods, (although the husband suggested in his oral evidence that the payments were made by cheque, and thus may have been posted). In any event, I have no doubt that the responsibility for the cost of maintaining Gary primarily fell on the husband and the wife. This included the cost of Gary attending [a private school] for either two or three years; however, this was the husband’s old school and the husband acknowledged that he was the main driver behind Gary changing to a private school.
179The husband, of course, knew when he entered into a relationship with the wife that this would involve taking on some responsibility for her child. He thereafter treated Gary as his own child and no doubt derived some satisfaction from that. Gary was referred to in the evidence as the husband’s “little shadow at [work]”. Sadly, the relationship has now hit rock bottom. Gary is a source of irritation to the husband and they are unlikely to reconcile their differences. Understandably, this has impacted on how the husband looks back on the time when he was helping to support Gary, financially and otherwise.
180There is no hard and fast rule that financial and other support provided for a stepchild must be recognised in a property settlement. Not everything in life can be – or should be – measured in money terms. Without suggesting this is the case here, the preparedness of a man to take on responsibility for a child who is not his own may be one very important thing a woman considers in agreeing to make a commitment to a relationship. In my experience in this jurisdiction, there is never a thought at a time a relationship is formed that there will be a financial price to pay for the support of a child if the relationship ends – as it did in this case almost two decades later.
181In approaching this topic, I respectfully adopt the following remarks of the Full Court in R & H [2003] FamCA 125:
18.The significance of Robb v Robb is that it recognises that in an appropriate case some allowance can be given to a step-parent who makes a contribution to the support of his or her step-children. There is nothing in Robb v Robb that mandates the adjustment and each case must turn on its own facts.
…
21.An adjustive exercise under s 79 is not an accounting exercise. The Court has to weigh up and evaluate the various contributions made at different times, all of which have to be taken into account in determining an appropriate division of the available pool of assets. They include not only capital introduced into the relationship, but also earnings during the relationship, physical labour expended upon improving or conserving assets, and services performed in the role of homemaker and parent. The process of evaluating these diverse contributions and attributing weight to them is not a scientific one. Minds will differ significantly on where weight should be placed. An appellate court cannot simply substitute its own assessment for that of the trial Judge unless it can be demonstrated that the trial Judge has erred on the facts or on the application of the law or has reached a result which is plainly unjust.
22.There is a danger of double counting in too readily making such an adjustment. Where each party brings in equivalent capital and the efforts of each party during the course of the marriage are seen to be equal, the fact that children from another relationship benefited in some way by support given to them arising out of that relationship, does not necessarily lead to the conclusion that a further adjustment should be made on behalf of the non-parent. One cannot necessarily conclude that, absent the step-children, the parties would be any the richer. Their quality of life may have been enhanced in terms of expenditure on themselves rather than on the children, or there may have been opportunity for capital gain or savings, but these things are merely speculative. Ultimately it is a matter for the discretion of the trial Judge.
23.There are further difficulties with the so-called Robb v Robb concept. Whilst it is true that a step-parent has no legal obligation to support a step-child unless an order has been made under s 66M of the Family Law Act, a moral obligation may well be created before then. In any event, the relationship between a step-parent and a step-child is not necessarily a one way street. Nor is it one upon which it is necessarily appropriate to put any commercial value.
182I am not persuaded it is appropriate to place any weight on this factor in coming to my assessment.
Assessment of s 75(2) factors
183It is again important to recognise that the 10% adjustment proposed by the wife would bring about a 20% disparity and the 5% adjustment proposed by the husband would achieve a 10% disparity. Thus the wife’s proposal would result in an “adjustment” of nearly $300,000, but a disparity of nearly $600,000.
184In arriving at my decision, I must of course have regard to the fact that the husband’s entitlement, on the basis of assessment of contributions, would be in the region of 51% to 52% of the asset pool. Doing the best I can with the information available to me, I consider that there should be an adjustment in favour of the wife on account of s 75(2) factors in the region of 6% to 7%.
Just and equitable?
185Selecting the midpoint for both the assessment of contributions and the adjustment for s 75(2) factors, I intend to order that the assets be distributed in proportions 55% to the wife and 45% to the husband.
186This will result in the wife receiving the items owned by her shown in the table above, the C Street and O Street properties, together with a balancing payment from the husband of $500,912, which I propose to round down to $500,000. The husband will therefore receive assets to a value of $1,304,638 and the wife will receive assets to the value of $1,592,531, a disparity of $287,893. In arriving at this outcome I have not overlooked that the husband’s share of the “pool” has a significant component of superannuation which he will not be able to access for some time.
Orders
187For these reasons, and subject to hearing from counsel, I propose to make the orders set out below. I recognise I have not given reasons for some very minor issues concerning Erica but these were not the subject of any submissions. I have made the orders which seem to me to be most appropriate in dealing with these issues but will provide further reasons if requested.
Parenting orders
1.All previous parenting orders are discharged.
2.The child, ERICA HART born 1 May 2008 live with the wife.
3.By consent, the parties have equal shared parental responsibility for Erica.
4.Erica spend time with the husband as follows:
a)Unless otherwise agreed, and until Erica attains the age of eight (8) years, from commencement of school or 8.30 am Monday until 5.00 pm Tuesday in one week, and from commencement of school or 8.30 am Friday until 5.00 pm Tuesday in the alternate week.
b)Unless otherwise agreed, from when Erica attains the age of eight (8) years, from after school or 5.00pm Friday until commencement of school or 8.30am Wednesday each alternate week.
c)Commencing in 2013 and each alternate year thereafter, from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day.
d)Commencing in 2014 and each alternate year thereafter, from 9.00 am on Christmas Eve until 3.00 pm on Christmas Day, with the husband to ensure Erica telephones the wife by 9.00 am on Christmas Day.
e)Commencing in 2014 and each alternate year thereafter, from the conclusion of school on Easter Thursday until the commencement of school or 9.00 am on the following Tuesday.
f)On a day when Erica would not otherwise be in his care, on her birthday from the conclusion of school until 6.30 pm, and in the event of a non-school day from 9.00 am until 1.00 pm.
g)On a day when Erica would not otherwise be in his care, from 4.00 pm on the evening before the husband’s birthday until the commencement of school or 10.00 am the next day.
h)On a day when Erica would not otherwise be in his care, on Father’s Day from 9.00 am until the commencement of school on Monday or 9.00 am.
i)During the mid-term school holidays for six consecutive nights in 2014 and seven consecutive nights in 2015 and thereafter.
j)During the Christmas school holidays for half of the holidays to be taken in periods of no more than five consecutive nights in 2013, six consecutive nights in 2014, seven consecutive nights in 2015 and thereafter for a period of no more than 14 consecutive nights.
5.Erica spend time with the wife as follows:
a)Commencing in 2013 and each alternate year thereafter, from 9.00 am on Christmas Eve to 3.00 pm on Christmas Day, with the wife to ensure Erica telephones the husband by 9.00 am on Christmas Day.
b)Commencing in 2014 and each alternate year thereafter, from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day.
c)Commencing in 2015 and each alternate year thereafter, from the conclusion of school on Easter Thursday until the commencement of school or 9.00 am on the following Tuesday.
d)On a day when Erica would not otherwise be in the wife’s care, on Erica’s birthday from the conclusion of school until 6.30 pm, and in the event of a non-school day from 9.00 am until 1.00 pm.
e)On a day when Erica would not otherwise be in the wife’s care, Erica spend time with the wife from 4.00 pm on the evening before the wife’s birthday until the commencement of school or 10.00am the next day.
f)On a day when Erica would not otherwise be in the wife’s care, Erica spend time with the wife from 9.00 am on Mother’s Day until the commencement of school on Monday or 9.00 am.
6.In the event either the husband or the wife is away or unable to care for Erica for more than one night, the other parent is to care for Erica overnight during that period, but the parent who is away shall still meet the cost of Erica’s day care for that period.
7.In the event the husband is away from Perth for more than one month at a time, the wife shall permit the paternal grandparents to spend time with Erica for two consecutive nights during that period.
8.The husband and wife be at liberty to holiday with Erica in Australia upon providing 28 days’ notice to the other parent, such notice to include proposed travel dates, destinations and details of travel, accommodation and contact details.
9.The husband and wife use their best endeavours to facilitate liberal communication between Erica and the other parent when Erica is in their care, including telephone communication between 6.00 pm and 7.00 pm each day.
10.The husband and wife will forthwith advise the other party of any medical diagnoses, emergency, hospitalisation or any medical appointment and the outcome of such an appointment in relation to Erica.
11.The husband and wife do all things and sign all documents necessary to authorise Erica’s treating health practitioners to provide the other parent with any information or documentation he or she may request, and the parties keep each other informed of the contact details of any such practitioners.
12.The husband and wife do all things and sign all documents necessary to authorise Erica’s school to provide the other parent any relevant information and each party be at liberty to attend any school event.
13.The husband and wife forthwith keep the other party informed of their place of residence and contact details.
Property orders
14.Within seven (7) days, the husband shall cause to be paid to the wife the sum of $500,000.
15.The wife transfer to the husband the whole of her right, title, estate and interest in the T Street property, more particularly described in the Certificate of Title (“the T Street property”).
16.Upon transfer of the wife’s interest in the T Street property to the husband, the husband indemnify the wife and keep her indemnified in relation to rates, taxes, insurances and other outgoings for the T Street property.
17.The husband transfer to the wife the whole of his right, title, estate and interest in the property at C Street, more particularly described in the Certificate of Title (“the C Street property”).
18.The husband transfer to the wife the whole of his right, title, estate and interest in the O Street property at, more particularly described in the Certificate of Title (“the O Street property”).
19.Upon transfer of the husband’s interest in the C Street property and the O Street property to the wife, the wife indemnify the husband and keep him indemnified in relation to rates, taxes, insurances and other outgoings for the properties.
20.Upon payment of the sum of $500,000 referred to above, the whole of the wife’s right, title, estate and interest in the following vest in the husband:
a)Shares in the husband’s name and shares in both parties’ names
b)Bank account A
c)Holden Commodore
d)Bank account B
e)Bank account C
f)Husband’s personal items and furniture
g)Husband’s superannuation
h)Funds in Company X bank account
21.Forthwith the whole of the husband’s right, title, estate and interest in the following vest in the wife:
a)Bank account D
b)Wife’s Mercedes
c)Wife’s personal items and furniture
d)Wife’s superannuation
22.Within seven (7) days the wife do all acts and sign all documents necessary to resign as trustee of the [Hart Family Trust], resign as trustee of the [Hart Superannuation Fund] and transfer to the husband any interest she may have in any loan account of the Hart Family Trust.
23.The husband and wife shall do all such acts and things necessary to sell the Holden Captiva and shall divide the proceeds in proportions 55% to the wife and 45% to the husband.
24.Subject to any provision in these orders to the contrary each party be solely entitled, to the exclusion of the other, to the property, chattels and superannuation entitlements in the possession or control of that party.
25.Subject to any provision in these orders to the contrary each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders, including but not limited to any capital gains tax liability.
26.All applications and responses before the Court otherwise be dismissed.
I certify that the preceding [186] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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