Hogan & Hogan
[2008] FMCAfam 1219
•14 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOGAN & HOGAN | [2008] FMCAfam 1219 |
| FAMILY LAW – Property – valuations of personalty – whether paid legal costs should be added back – should the husband’s expenditure on cannabis be added back as waste – whether liabilities of parties be added back to the pool – the effect of the husband’s interest in a trust – s.75(2) factors. FAMILY LAW – Parenting – cannabis use and its effect on parenting – children’s views – the likely effect of changes in the children's circumstances – equal or substantial and significant time? |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 79, 75 |
| Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Barnard M., Drug Addiction and Families, London: Jessica Kingsley; 2007 |
| Applicant: | MR HOGAN |
| Respondent: | MS HOGAN |
| File Number: | SYC 2447 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 26 August 2008 |
| Date of Last Submission: | 26 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cleary |
| Solicitors for the Applicant: | Atkinson Vinden Heazlewoods |
| Counsel for the Respondent: | Mr Gould |
| Solicitors for the Respondent: | Humpreys & Feather Solicitors |
ORDERS
That the children [X] born in 1998 and [Y] born in 2001 live with the wife.
That the children spend time with the husband as follows:
(a)In week one of a two week cycle from after school on Thursday until Monday morning;
(b)In week two of a two week cycle from after school Friday until 10.00am Saturday;
(c)For one half of each of the New South Wales gazetted school holiday periods, as agreed, and failing agreement, for the first half of such holidays in even numbered years and for the second half of such holidays in off numbered years;
(d)From 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years;
(e)From 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years;
(f)From 9.00am to 5.00pm on Father’s Day each year;
(g)For a period of not less than two hours on the children’s birthdays in the event that they fall on a weekday and for a period of not less than four hours in the event that they fall on a weekend.
That the husband’s time with the children abate as follows:
(a)From 3.00pm Christmas Eve until 3.00pm Christmas Day in even numbered years;
(b)From 3.00pm Christmas Day until 3.00pm Boxing Day in off numbered years;
(c)From 9.00am to 5.00pm on Mother’s Day each year;
(d)For a period of not less than two hours on the children’s birthdays in the event that they fall on a weekday and for a period of not less than four hours in the event that they fall on a weekend.
That the husband be restrained by injunction from consuming illegal drugs for a period of twenty-four (24) hours before or during the time that the children are spending time with him.
That within forty-two days of the making of these Orders the husband do all acts and things and sign all documents necessary to transfer to the wife all his right, title and interest in the former matrimonial home into her name solely.
That simultaneously with the transfer in Order 5 hereof the wife do all acts and things and sign all documents necessary to re-finance the existing mortgage over the former matrimonial home into her name solely.
That simultaneously with the transfer referred to in Order 5 hereof the husband pay to the wife the sum of $2,498.
That the husband be declared the owner at law and in equity of his one-half interest in the property situated at and known as Property T.
That within fourteen (14) days of the making of these Orders the Husband do all acts and things and sign all documents necessary to transfer to the wife all his right, title and interest in the BMW motor vehicle, registration number [omitted].
Except as otherwise provided herein the husband and the wife each be declared the owner at law and equity of all items of property including but not limited to motor vehicles, shares, furniture, personalty including but not limited to money, jewellery and personal effects presently standing in their name or in their respective possession and control.
Except as otherwise provided herein the husband and wife remain liable for any debts in their own name as at the date of these Orders and in this respect shall indemnify and hold harmless the other from any liability in relation thereto.
That the husband and wife each be entitled to retain such superannuation, annuity entitlements and pension benefits to which they are or might become entitled in their own right.
That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, the Registrar of the Family Court of Australia be appointed pursuant to s.106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity and operation to the deed or instrument.
That in the event that the wife is unable to comply with order (6), should the parties need further orders in order to implement the reasons for judgment in this matter, they may relist on 7 days notice as regards interpretation, implementation or enforcement of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Hogan& Hogan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2447 of 2007
| MR HOGAN |
Applicant
And
| MS HOGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings is the husband. He is a 50-year-old [educational professional] who currently resides with his elderly mother at Property T, a suburb on Sydney's lower north shore. The respondent is his wife. She is a 50-year-old [information manager]. She lives in the former matrimonial home at Property W, a northern Sydney suburb.
The husband and wife commenced cohabitation in 1994, married in 1998, and separated in November 2006. They cohabited for a period of about 12 years. They have two children, [X], who is 10 years old, and [Y], who is 7 years old.
The dispute between the parties relates to both property and parenting orders. In relation to the parenting orders, the husband seeks an equal time order. The wife proposes that the children spend time with the husband for 4 nights out of 14. An interim order made by
Henderson FM on 18 January 2008 currently provides for the children to spend 5 nights out of 14 with their father, 4 nights in 1 week, and 1 night in the other week. In addition, the children spend half the school holidays with their father, as well special days. There is no serious dispute about the latter.
In relation to the property issue, the husband proposes that the former matrimonial home be sold, and that he receive 60 per cent of the net sale proceeds. The wife proposes that the former matrimonial home be transferred to her, on the basis that she takes over the mortgage. She also proposes that the husband make a further payment to her.
Background
As well as making parenting orders on 18 January 2008,
Henderson FM also made an order requiring the husband to vacate the former matrimonial home and, in effect, giving the wife exclusive occupancy, provided she pay all outgoings on the premises including mortgage payments, council and water rates etc. As part of the parenting orders, Her Honour also made an order restraining the husband from consuming any illegal drugs for a period of 24 hours before or during the time that the children are with him. The issue of the husband's consumption of cannabis was a major issue in the wife's case, insofar as it related to the parenting orders that are in the best interests of the children. The consumption of cannabis was also a minor issue in the wife's case about property settlement, as she asserts that the expenditure on cannabis constituted waste. Both of these matters are issues in respect of which I need to make findings.
Notwithstanding the current interim orders, an arrangement that has been in place for most of this year, the wife proposes that the children's time with their father actually be reduced to 4 nights out of 14. She has concerns about the husband's cannabis consumption, concerns about the impact on the children of lengthy periods of travel to and from school when they are in the husband's care, and more generalised concerns about how the children cope with absences from her, whilst in the husband's care. The husband proposes equal time on the basis that he has a strong relationship with the children, that they have expressed the view to spend more time with him, and on the basis that his consumption of cannabis is not such as to interfere with his ability to parent the children. It seems common ground between the parents that they have difficulty communicating, though it may well be that the situation is improving.
In relation to the property settlement, there are several issues. There are some relatively minor issues about the constitution of the pool of assets and liabilities. It seems common ground that the husband made a greater financial contribution to the marriage, as a result partly of pre-existing assets, but principally because of the generosity of his mother who, through a trust, the [Hogan] Family Trust, has enabled the husband to have access to quite considerable financial resources during the marriage and, indeed, since separation. As I indicated before, there is also an issue about waste.
It is uncontested that the [Hogan] Family Trust was established in 1974 and that in 1983 the trustee, [M] Pty Limited, purchased a property at Property D, which was entirely funded by the husband's mother.
In 1988 the husband and his mother purchased as joint tenants a property at Property T. The husband's only contribution to this property was by paying the mortgage. This property is the one that is occupied by the husband, his mother and the children during the period when they spend time with their father.
It is uncontested that the [Hogan] Family Trust provided quite substantial financial assistance to the parties throughout the marriage. When the husband and the wife purchased their first home at
Property P there is no dispute that the vast amount of the purchase price was derived as a result of the sale of the Property D property by the trustee of the [Hogan] Family Trust. The wife did make a substantial contribution using the sale proceeds of property that she owned at Property E, but it is uncontested that the contribution made through the husband's interest in the family trust was substantially greater than that of the wife. There is a minor dispute between the parties about how, precisely, the balance of the purchase price was financed, but nothing turns on this. The Property P property, which was purchased in 2000, was then sold the next year, in 2001. In 2002 the parties jointly purchased the former matrimonial home at
Property W using the sale proceeds of Property P as well as borrowings secured by way of mortgage.
It is uncontested that there were substantial periods during the marriage when the husband was unemployed but, for all practical purposes, the family's financial position remained comfortable, partly because both the husband and the wife were still able to earn income from occasional or part-time employment, but principally because of the benefits the husband derived from the [Hogan] Family Trust.
In her closing submissions, Ms Cleary, Counsel for the husband, submitted that as a result of the overwhelmingly greater financial contribution made by the husband, contribution should be assessed in his favour at between 60-65 per cent. She submitted that there was a s.75(2) adjustment that needed to be made in favour of the wife, but it should be assessed at no greater than 5 per cent. On behalf of the wife, Mr Gould, her Counsel, submitted that contribution should be assessed in the husband's favour at 60 per cent, and that there should then be a substantial adjustment in favour of the wife pursuant to s.75(2) of the Family Law Act having regard to the factors set out therein. He submitted the adjustment should be 15 per cent.
It is uncontested that, if possible, the wife would like to retain the former matrimonial home for the benefit of the children and herself. I did not hear any objection, in principle, from the husband about this. Ultimately, it is a matter of affordability for the wife, depending on the final outcome of this case.
I propose to deal with the parenting issues first, and then the property issues.
Issues
Having regard to the matters I have set out above, and to the evidence before me, I consider the issues in this case to be as follows:
Parenting
a)Does the husband's consumption of cannabis raise any issues about the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence? Related to this, of course, is whether the husband's consumption of cannabis affects his capacity to provide for the needs of the children, or perhaps reflect on his attitudes to the children, and to the responsibilities of parenthood?
b)Have the children expressed any views about how much time they should spend with each parent and, if so, what weight should be given to those views?
c)Having regard to the competing proposals of the parties, is there an issue about the likely effect of any changes in the children's circumstances including the likely effect on the children of separation from any parent?
d)Are there any issues of practical difficulty and expense of a child spending time with and communicating with the other parent?
e)Having regard to the fact that both parents agree that the presumption of equal shared parental responsibility applies which of equal time, or substantial and significant time, is in the best interests of the children and is reasonably practicable?
I formally record that both parties proceeded on the basis, and in any event if they had not, I would have found that, the children have a meaningful relationship with both of their parents, and there are no circumstances that would create any concern about the willingness and ability of each of the parents to facilitate and encourage a continuation of that relationship between the children and the other parent. There are no issues of family violence. I intend to focus on the matters that are in dispute only.
I have the benefit of a family report that was prepared by Regulation 7 Family Consultant, John Lemaire, dated 6 March 2008. I will refer to that report from time to time, as appropriate.
Property
There are issues relating to the constitution of the pool of assets:
These issues include:
a)The valuation of the husband's shares, stamp collection, wine collection and book collection.
b)Whether the husband's paid legal costs should be added back into the property pool.
c)What is the value of the jewellery in the wife's possession?
d)Should the husband's expenditure on the purchase of cannabis for his own use be added back as notional property, on the basis that it is waste?
e)Should a debt owed by the husband to his mother, in the sum of $70,000, be included as a liability in the joint pool of assets?
f)Should liabilities of the husband accrued on his Visa and Mastercard debts be included in the joint pool?
g)Should liabilities of the wife on her Mastercard and Myer card, which existed at the time of separation, be included as liabilities in the joint pool?
h)How should the husband's interest in the [Hogan] Family Trust be characterised and valued?
How should contribution be assessed at the date of the hearing, having regard to what both parties acknowledge was the greater financial contribution of the husband?
How should the agreed s.75(2) adjustment in favour of the wife be assessed?
Having regard to all of the above matters, what is a just and equitable order to make under the circumstances, particularly having regard to the wife's desire to remain in the former matrimonial home at
Property W?
Applicable Law
Parenting
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental conflict and shared parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by
Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
Parenting and drug addiction
In a case where it is alleged that one or both parents, or any person involved in the care of a child, are addicted to drugs, this is highly relevant because, potentially:
a)It might undermine or even destroy the meaningful relationship that exists between child and parent (s.60CC(2)(a)); and/or
b)It creates a need to protect the child from physical or psychological harm from being subjected to, abuse, neglect, or family violence attributable to the drugs (s.60CC(2)(b)); and/or
c)It adversely impacts on the nature of the relationship of the child with the drug dependent person (s.60CC(3)(b)); and/or
d)It impairs the capacity of that parent or person to provide for the needs of the child: (s.60CC(3)(f)); and/or
e)It demonstrated a poor attitude to the child and to the responsibilities of parenthood (s.60CC(3)(i)); and/or
f)It might lead to situations of family violence (s.60CC(3)(j)).
From a social science perspective, parenting and drug addiction are a potentially dangerous mix for the child. Drug dependence creates a
pre-occupation that is inconsistent with responsible parenthood. The compulsion for drugs is not inconsistent with parental love, but is often inconsistent with the ability to meet the needs of children. Choices are often made that compromise the ability of parents to protect their children. Funding and maintaining a drug habit creates instability in family life. Children can often become secondary priorities, and thus vulnerable to harm. Routines are often disrupted. Sometimes drug dependency leads to exposure to criminal behaviour and the criminal law. Even if a parent is physically present for a child, drug dependence often leads to emotional unavailability for children, which is sometimes the most damaging impact. In short, parental capacity is grossly compromised. (See generally Barnard M., Drug Addiction and Families, London: Jessica Kingsley; 2007.)
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Property
The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the
Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
One of the legal issues that arises is whether I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole.
My discretion in this regard should be exercised having regard to the facts of this case.
Another issue in this case is how, precisely, I should weigh and assess the initial contribution made by the husband in bringing property into the marriage. In this regard, I need to consider the decision of the Full Court in Pierce v Pierce (1998) FLC 92-844. A useful recent decision of the Full Court examines its earlier decision in Pierce v Pierce together with a later case. In Williams & Williams [2007] FamCA 313 the Full Court states as follows at paragraphs 26, 27, 28, 29 and 32:
26. We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
28. The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:
In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the father and the wife. In considering the weight to be attached to the initial contribution, in this case of the father, regard must be had to the use made by the parties of that contribution.
29. Pierce v Pierce was a case in which the father brought in $200,000 cash into the relationship. He applied that money towards the purchase of a matrimonial home. He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children. The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the father and 30 per cent in favour of the wife at the end of a 10 year relationship.
32. In Hunt v Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169 the Full Court (Kay, May and Boland JJ) allowed an appeal in a property case where a pool of assets of $1.12million had been assessed for contribution purposes as 75 per cent in favour of the father and 25 per cent in favour of the wife. The Court in allowing the appeal indicated that an assessment of 75:25 fell outside the realms of an acceptable range saying at 79,730; 170:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the father at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.
Accordingly, I must not only identify the contributions of each party, but also assess the weight to be attributed to these contributions having regard to many factors including what has occurred afterwards.
Waste
The wife raised what is, in effect, a waste argument. A succinct statement of the law in this regard is the statement by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76 644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Protecting the children from harm, and assessing capacity to provide for their needs
The only issue that arises under this consideration relates to the husband's consumption of cannabis. In short, and simplifying the husband’s case to a few words, he says "There is nothing to protect the children from." In effect, he denies that he has an addiction. He says the children have never seen him smoke cannabis. He says there is no evidence of actual abuse or neglect of the children. He says he has complied with the orders that were made by Henderson FM. He points out that he has held a responsible, full-time job as an [educational professional] for an extended period of time. He points out that in all of the wife's evidence, there is minimal criticism of him in terms of his parenting generally. Finally, his argument is that all of the evidence - his own, the wife's, and the Family Consultant's - all point to the strength of the children's relationship with him.
However, from the wife's perspective, she asserts that the husband has attempted to mislead both the Family Consultant and the Court about the nature and extent of his consumption of cannabis. She says this affects his credibility and that, indeed, a finding of addiction is clearly open on the husband's own evidence, though she concedes that his actual consumption varies from time to time. Whilst the wife acknowledges that the husband's consumption of cannabis was a feature of the entire period of their marriage, she argues that during the marriage she was there to provide a safety net for the children, but this has become more problematic since separation. The wife's concerns about the husband's consumption of cannabis is both retrospective and prospective. Indeed, she argues that the greatest risk to the children is in the future, and that as they become older, his consumption becomes increasingly harder to hide and there is a real concern about the poor role model that he will present to the children.
The husband responds to the wife's criticisms by pointing out that they are inconsistent with her stated position in relation to parenting orders. Indeed, he says that her concerns about his consumption of cannabis are exaggerated and that this is the best explanation for the wife's own proposal that he spend 4 nights a fortnight with the children. He points out that the wife does not even seek supervision of his time with the children, nor does she propose a regime of drug testing.
The husband's evidence about his consumption of cannabis was presented in a rather minimalist form. In paragraph 67 of his affidavit sworn 13 August 2008, he states:
I no longer smoke any cannabis. I have also quit smoking tobacco.
The family report was prepared as a result of interviews and observations conducted on 3 March 2008. It contains a number of observations in relation to this issue. For example, at paragraph 8, the Family Consultant records:
8.Mr Hogan explained that the separation occurred following a 'long term decline in the relationship', and to the stresses and adjustments related to having children late in life. He claimed that he and Ms Hogan 'drifted apart' and that she began to drink and he 'smoked pot'. He added that he no longer uses the drug and has undergone an addiction-related Counselling program.
The Family Consultant noted, further, what the wife said on this topic at paragraph 20:
20.Ms Hogan asserted that Mr Hogan continues to use marijuana in spite of his denial. She asserted that recently, when he collected the children, he was affected, but 'not off his face'. She questioned her wisdom in letting the children go with him and said, 'I have to balance safety issues and their need to see him, a balancing act I had to do during the marriage and I'm still going to have to do.'
In his evaluation, the Family Consultant stated at paragraphs 36 and 37:
36.Ms Hogan was concerned about Mr Hogan's alleged use of marijuana. Yet, she would agree to the children spending five days per fortnight with him. If he is affected by the drug, then increased time with the children would render them in danger of harm as a consequence of lack of supervision. It is noted that Mr Hogan denied any present use of marijuana.
37.If the Court finds that Mr Hogan is drug free, then nothing emerged from this assessment to preclude his extensive involvement with the children.
I record the fact that an issue arose in the proceedings about whether the wife had in fact told the Family Consultant that she would agree to the children spending 5 days a fortnight with the husband. The Family Consultant says that his report records what the wife told him. The wife asserts that she merely indicated to the Family Consultant that she would abide with any order that was made by the Court. I see no need to rule on this issue. Nothing turns on whether the wife agrees to
4 days a fortnight or 5 days a fortnight, in the context of this issue about the husband's consumption of cannabis.
I gave leave to the husband to give some brief evidence-in-chief about changes to his affidavit sworn on 13 August 2008. He said, in effect, that notwithstanding paragraph 67 of his affidavit, he has in fact been smoking cigarettes since then. Furthermore he said he has had no cannabis since that affidavit, but perhaps smoked it the week before that, an event that he described as a "lapse".
The husband was cross-examined at length about this issue. He agreed that three weeks before the hearing he had smoked a joint of hydroponic cannabis. He conceded that he had done a fair bit of smoking over the years, that he has periodically smoked cannabis, but not since the affidavit. Indeed, he agreed that he had been smoking cannabis for 20 years. When pressed about the inconsistency of asserting that he no longer smokes cannabis when he had, in fact, smoked cannabis a week before signing the affidavit, he had to agree that the evidence before the Court did not give a full disclosure and history of his consumption of cannabis. He agreed that it was difficult to give up smoking cannabis.
In cross-examination his evidence was that in 2008 he had smoked cannabis five or six times. He described it as "an unusual event" possibly happening every six weeks or so. He asserts that he had not smoked cannabis for two months before his appointment with the Family Consultant. When it was put to him that having regard to a
20-year history of consumption it was rather inconsequential not to smoke for two months, his response was that he did not know.
He certainly agreed that there was nothing remarkable in stopping for two months. He agreed that he had tried, during that period, to give it up several times, but without success. He agreed that his consumption of cannabis was a concern to the wife that she had expressed to him several times, and indeed a significant matter in the breakdown of their relationship. He agreed that if he were under the influence of cannabis, and driving a motor vehicle, there would be a risk to the children. When it was suggested to him that there have been numerous times when he had been under the influence of cannabis and driving the children his response was, "Not numerous, but a few times". He said, however, that this had certainly not occurred in 2008, with or without the children. The last time he consumed cannabis was at his home, on the balcony. When he consumed cannabis at the former matrimonial home, it was outside.
The husband's evidence is that he last purchased cannabis last year, and that his consumption this year was of cannabis that had been gifted to him by a friend. He gave evidence that the current price of cannabis is $400 an ounce, but he denied that it was a very expensive drug to use. He estimated that over a period of 10 years he had spent $20,000 in the purchase of cannabis for his own use. This was calculated on the basis of 20 $100 deals each year. During the marriage, he described his consumption as every few days, but not regularly, and certainly not daily. He asserted that out of every $100 purchase of cannabis, he would be able to make 30 joints, when mixed with tobacco. He estimated that a $100 deal would last him about 10 days. His evidence was that there were periods in the marriage when he was not consuming cannabis at all.
He was cross-examined about whether, in his opinion, his consumption of cannabis presented any "downside" for the children. His response was that he did not think so because he did not smoke in front of them, or in their presence, it was always outside and, indeed, they would be in bed. He was firmly of the view that the children did not know that he was smoking, even though, in all likelihood, both his clothes and the vehicle he drove smelt of cannabis. His evidence was, in effect, that the children would not know what cannabis smelt like and that, in any event, they had never said anything to him. He denied that the consumption of cannabis had an after-effect on him, except on a few occasions when he became lethargic. He agreed, however, that the consumption of cannabis assisted him going to sleep. The husband categorically refuted allegations of the wife that on 22 May 2008 he was under the influence of cannabis when he attended the home to collect the children. Whilst he agrees that he may well have smelt of cannabis, his evidence was that he did not consume it that day and that he did not believe his speech to be slurred.
The Family Consultant was also cross-examined on the topic of the husband's consumption of cannabis. He certainly was not aware that the husband had been consuming cannabis for 20 years, including in the last 12 months before the report. He suggested that, at the very least, his continued consumption of cannabis suggests that any good intentions the husband might have were not carried through. If the Court found that the husband was addicted, he would have some concerns about the husband's capacity to interact, and to be available for the children. Indeed, he said that if the Court found that the husband is addicted to the consumption of cannabis, although the consumption was variable and continuing, this would diminish the husband's parenting capacity. Moreover, if the husband's consumption of cannabis was constant, and obvious, there was a chance that he would be a poor role model for the children. Indeed, the Family Consultant made a very interesting and useful comment when he said words to the effect that there is a difference between an addiction that permeates the husband's life, or a controlled usage.
I believe that the totality of the evidence leads to the inevitable conclusion that the husband is addicted to cannabis, in the sense that, for the husband, the consumption of cannabis permeates his life and is not something that can be controlled. I agree with the submission made by Counsel for the wife - the effect of the husband's evidence to the Court, and his statements to the Family Consultant, was quite misleading about the nature and extent of his consumption of cannabis. I accept that his evidence indicates that his consumption fluctuates from time to time and that he is able to control it for periods of, perhaps, up to two months. However, the consumption of cannabis has been a feature of the husband's life for the last 20 years, by his own admission. His own evidence was that his expenditure on cannabis was about $2,000 a year, consisting of 20 $100 deals. Each deal led to 30 joints of cannabis when mixed with tobacco, and each deal would last 10 days approximately. This means, however, on the husband's own evidence, that he would consume 600 joints each year. This sort of usage is clearly one that permeates the husband's life and, in that respect, constitutes an addiction. It is hardly the controlled use that was asserted on his behalf.
Evidence was called from Dr B, the director of the Drug and Alcohol Clinic at the [L] Centre in Sydney. This evidence was admitted by consent after I had requested Counsel to provide me with such evidence as they could find about the impact on parenting capacity of an addiction to cannabis. Dr B gave his evidence by telephone. He was asked the question whether there is reliable research that addresses the issue about the effect on parenting, of the consumption of cannabis. He explained that there was no specific literature on that issue, and that most of the literature concerned addiction to alcohol. His opinion, however, was that occasional use of cannabis was of little concern, but dependent use is different. He opined that occasional use of cannabis is consistent with being able to parent. However, he emphasised that there is a need to assess the individual, rather than to make broad generalisations from the research.
The husband's evidence that he no longer consumes cannabis is not evidence that I can accept under the circumstances. He has consciously, in my opinion, sought to mislead the Court and the Family Consultant about an issue that he clearly knew would be a significant one in this case, as the family report was available to him for many months before he swore his affidavit. In the family report, he indicated to the Family Consultant that he had undergone an addiction-related Counselling program, and yet he gave no evidence about this to the Court.
In addition, there are other aspects of his disclosure to the Court that I find of concern. Even putting that aside, however, it is the husband's own evidence that leads me to the finding that he is addicted to the consumption of cannabis. What are the implications of this?
The primary considerations set out in s.60CC(2) and the additional considerations set out in s.60CC(3)(f) are both retrospective and prospective in nature. In other words, both the need to protect children, and the capacity of the parent to provide for the children's needs, looks both to the past and the future. In this case, there is insufficient evidence for me to find that, on the balance of probabilities, the husband has in fact been under the influence of cannabis whilst driving the children or, indeed, having them in his care Indeed, there is no evidence of actual risk of or exposure to abuse or neglect of the children arising out of the husband's consumption of cannabis, or otherwise. However, the inquiry does not stop there. These considerations require me to look to the future and assess the risk to the children of being parented by a father who is addicted to cannabis. This risk is far greater in the future, than it has been in the past. During the period of cohabitation I accept that the wife provided a safety net for the children and, to that extent, sought to protect them from any possible adverse consequences of their father's addiction. I accept that since separation she has maintained her concern but sought to balance that concern against her own acknowledgment that the children need to spend time with their father. In the future, however, the children will become older and much more perceptive to what is happening around them, including what they observe in their father, and what they notice by way of smells. It is a fact that most children at primary school and high school undertake routine instruction about the effect of addictions of all sorts, including cannabis. Even if it is the case that the father has succeeded in hiding his addiction from his children in the past, it is inevitable that they will become aware of it at some time in the future. When that happens, what sort of role model will he be for his own children?
During his Counsel's closing submissions, I put to her what I considered might be, on the husband's own case, a worst case scenario for the children. That scenario is one where the husband becomes under the influence of cannabis as a result of consuming the same, outside the house, after the children had gone to bed. What would happen if an emergency arose that night that required the husband to be fully alert and able to make a quick and correct judgment call in a potentially
life-threatening situation? Counsel quite properly responded by articulating the reality of modern society, i.e., that there are many, many families who confront drug and alcohol addiction problems and yet still seem to function at an acceptable level. She suggested, however, that the evidence here indicated that he does not smoke when the children are in his care and that, in any event, he offers undertakings and would certainly abide by any order such as that imposed by Henderson FM. By inference, the response to my hypothetical scenario was that the risk was a minimal and manageable one under the circumstances. However, the evidence before me indicates that the husband has, on his own evidence, smoked up to
600 joints of cannabis a year, so I would have to be reticent about accepting an undertaking from him not to do so when the children are in his care and, moreover, I would have to be sceptical about his capacity to comply with any order I make to that effect.
I accept that the husband is a good parent when he is not under the influence of cannabis. However, when he is under the influence of cannabis, he is not as available for his children as he otherwise should be, and needs to be. The context of this discussion is that the husband applies for an order that he have the care of his children on an equal time basis, i.e., seven out of 14 nights. Implicit in his proposal is that he would not consume cannabis at all during the time immediately before and during this period of care of the children. But this period of abstinence is not something that I believe the husband is capable of achieving and/or sustaining, having regard to his own evidence. Perhaps, at some future time, he might be able to demonstrate to me, or another Court, that he has conquered his addiction to cannabis and that might invite, at that time, and subject to all the other relevant considerations, a reconsideration of his request for equal time. On the evidence before me, however, I could not possibly conclude that equal time was in the best interest of these children because of the concerns I would have about his reduced capacity to meet their needs whilst under the influence of cannabis, and the resultant need to protect them from the risk of abuse and neglect.
I have not lost sight of the fact that the wife herself proposes four nights a fortnight, knowing full well (indeed, probably better than anybody else) about the precise extent of the husband's addiction to cannabis. Her rationale is that the children need their father and have a good relationship with him. Indeed, they do. From my perspective, however, the less time the husband has with the children, the greater the chance that he is, indeed, able to control his addiction so that he does not consume immediately before or during the time that he has them in his care.
I acknowledge that the Family Consultant recommended that the children spend time with their father for six nights per fortnight, but that recommendation was clearly predicated by an assumption that the Court would find that the husband was drug free. Clearly, that is not the Court's finding.
I record the fact that I recognise that the husband, and possibly other sections of the community, might find my decision harsh and uncompromising. I can understand that perception. After all, the husband holds down a very responsible and respected position as a [educational professional]. I recognise that there is no evidence before me to indicate there has been any actual abuse or neglect of these children, and I recognise that by depriving these children of more time with their father, I might in fact be inhibiting them from spending time with their father which might enable them to build on the good relationship that he already has with them. Notwithstanding all of that, my decision is informed by both the objects and principles of Part VII of the Family Law Act as contained in s.60B. I note, for example, that the best interests of children are met by ensuring that they have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. Another object is clearly about protecting children from being subjected to or exposed to abuse and neglect. I am charged with the responsibility to ensure that the children receive adequate and proper parenting so they can achieve their full potential, as well as ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. A parent who suffers an unfortunate addiction is not available to achieve the objects that I have emphasised above. The husband is a responsible, respectable person who, unfortunately for his children, suffers from an addiction to cannabis.
It is within his power to deal with that addiction.
In any event, the order for time with his children that he will enjoy will enable him to have a meaningful involvement in their lives and for him to have an active role in parenting, but that time is restricted because of the concerns I have about his ability to control his addiction.
The reasoning I have adopted above creates problems with the time that the husband can spend with the children during the school holidays. Even the wife proposes that the husband has time with the children for one half of each of the New South Wales school holiday periods. Before I can make an order to this effect, I would have to be satisfied that the husband could abstain from the consumption of cannabis for three periods during the year of up to one week's duration, and then for one three-week period during the December/January school holidays. Can I be so satisfied? The findings I have made above carry with it the implication that I cannot be satisfied that the husband could control his addiction to cannabis for a period of up to seven days each fortnight, but could control his addiction for a period of three or four days each fortnight. It is not just an issue of for how long the husband can abstain, but how frequently he can abstain. I am satisfied that he could abstain for one-week periods during the mid-year school holidays. Could he abstain for three weeks over the December/January school holidays? I am not sure he can. Implicit in the wife's proposed order is the assumption that she believes he can abstain. I must assume that the wife's proposal was formulated after consideration by herself, and consultation with those who advise her, and having regard to the issues in the case. The wife, I must assume, is confident that he can abstain for up to three weeks. I acknowledge that this is consistent with the evidence that he gave at the hearing. I am sceptical, but I am not prepared to substitute my judgment for that of the wife, and accordingly, I will accept her proposal for the division of school holiday time.
The views expressed by the children
Both parents seem to admit that the children wanted to spend more time with their father. The Family Consultant met with both children. During the interview with [X], the Family Consultant was clearly impressed with her as a "quiet, thoughtful and articulate child". She indicated to the Family Consultant that "she preferred a shared care arrangement and said 'I'd be okay with dad for a week and mum for a week. It would be equal.'" However, she then acknowledged to the Family Consultant that her father had suggested equal care to her, but nonetheless [X] insisted that she thought it was a really good idea. [X] is 10 years old. There is no report by the Family Consultant of the younger child, [Y], expressing a view about time.
In his evaluation at paragraph 33 the Family Consultant notes, in relation to [X]:
While she has said that she wants to be cared for equally by her parents, she is aware that her mother does not support that proposal and she is keen not to disappoint Ms Hogan. It is considered, however, that a resolution of this matter, whether in favour of either party's position would, in itself, be instrumental in settling the children and will give them the opportunity to adjust.
I accept that [X] has expressed a view that might be indicative of equal time with her father. However, I have some concern that that might have been influenced by comments her father has made to her, or comments she has overheard her father make. The Family Consultant seemed more focused on the benefits to the children of resolution of this conflict between their parents, rather than any adverse implications of not giving effect to the views expressed by [X]. In any event, [X]’s views need to be taken into account together with all the other factors that are relevant in this case. By no means do I ignore her view, but under the circumstances, I do not give it significant weight because I believe the most important considerations are those related to her father's unfortunate addiction.
The likely effect of changes in the children's circumstances
If I accept that the wife's proposal is, in fact, that contained in her minute of order, ie, from after school Thursday until 6 pm Sunday each alternate week, and from after school Friday until 10 am Saturday on the other week, this means she proposes the husband would spend
4 nights a fortnight with the children. The problem with giving effect to this proposal is that it actually reduces the amount of time that these children have enjoyed with their father for most of this year. Her Honour Henderson FM, having heard an interim application, ordered the children to spend time with their father from after school Thursday until Monday morning one week, and then from after school Thursday until before school on Friday during the other week. In other words, this is 5 nights a fortnight.
Despite the serious concerns that I have expressed in relation to the husband's addiction, the risk to the children, and his ability to parent them, I would be concerned about the impact on the children of actually reducing the amount of time they spend with their father. All of the evidence points to the strong bond that exists between the children and their father. The Family Consultant reports on the wife's comments to him about how the children have been missing their father and want to spend time with him. He reports that the wife believes that they are no less attached to him than to her. The Family Consultant concluded, after his observation of the interaction between the children and their parents, that it was not possible to discriminate between the parents in terms of their importance to the children and their connection to them. As indicated above, [X] expressed to the Family Consultant a desire to spend more time, in fact equal time, with her father. Even [Y] made the comments to the Family Consultant indicative of the strength of her relationship with him. The Family Consultant concludes that the children "are significantly connected to both parents, and the parents are significantly connected to them". In these circumstances, it is not in the best interests for the children for their time with their father to be reduced below that which was set by her Honour Henderson FM. It will involve trusting the husband to be able to control his addiction for four consecutive nights each fortnight.
I note that the interim order provides for the children to spend Thursday nights with their father in the alternate week. In her orders, however, the wife proposes that it become the alternate Friday night. By way of summary of her evidence about this issue, she seems concerned about the impact on the children of the additional travel associated with getting them from school on Thursday afternoons and to school the following morning. She provided examples of the children being disrupted. By way of explanation, because the husband lives on the lower north shore, the wife on the upper north shore, and the husband works south of the harbour, he has to leave very early in order to get the children to school on time, because they go to school near the former matrimonial home. He, of course, needs to leave himself enough time to get to work on time each morning. I accept that the travel arrangements are onerous on the children, and probably for the husband as well. He did give evidence about the possibility of finding another job much closer to the children's school and existing locality, thus minimising the disruption to him. This evidence came in very late, however. Whether I give much weight to this evidence or not, I think the focus should be on minimising disruption to the children, and I think the wife's proposal provides the best opportunity for that, whilst changing the existing arrangements in a relatively minor way. Accordingly, I will accept the wife's proposal about changing the alternate week time to Friday night, instead of Saturday. She must have made this proposal in the full understanding that it might circumscribe what she can do with the children on those weekends.
Issues of practical difficulty and expense
In the previous section of my judgment I have touched upon some of the issues of practical difficulty. They are not significant issues. Assuming that the interim orders are continued subject to the modification referred to above, it means that if both the children are to continue to reside in their current locality, and the husband continues to work where he does at the moment, they will have to drive not inconsiderable distances Thursday after school, Friday before and after school, and on Monday morning. This will occur each alternate week. It is not the sort of inconvenience, however, that I believe was envisaged in paragraph (e) of s.60CC(3).
Equal time or substantial and significant time?
For the reasons that I have set out above, I do not believe that it is in the best interests of the children for them to have equal time with their father. However, I would have come to that conclusion even if I had not been concerned about the husband's addiction to cannabis.
The Family Consultant was of the opinion that equal time was contra-indicated in this case because of the high level of conflict, and low level of communication that existed between the parents. I agree with the Family Consultant in this regard.
In the Family Report, the Family Consultant reports that the husband described his relationship with the wife as "pretty bad". He is recorded as acknowledging that one of the disadvantages of his shared care proposal is that "[Ms Hogan] and I would need to communicate okay about the kids".
The wife expressed the view to the Family Consultant that:
Shared care could not be conducted adequately because she and Mr Hogan do not verbally communicate. She said matters relating to the children “have to be written down” and that
Mr Hogan will not provide timely answers. Consequently, she is frequently frustrated in her attempts to manage the children. She cited an occasion when she gave Mr Hogan the health care card when he took a child to the doctor. She said 'I have asked three times for the card' to be returned.In relation to the suitability of shared care in this family, the Family Consultant provides the following evaluation at paragraph 34:
If the parents were able to verbally communicate, and positively interact, shared care would seem to be an appropriate option. At this point, however, according to the parents, they avoid interacting, and Ms Hogan intends to rely on email to communicate. She said she cannot trust Mr Hogan and contends that he is untruthful and unreliable. A shared care arrangement requires substantial information to pass more frequently between parents than otherwise is the case. Thus, the opportunities for conflict between parents increases and the children's exposure to that conflict. Exposure to conflict creates emotional reactions which affect relationships, not only with the family, but in later life. In this matter, the parties say they have an acrimonious relationship.
However, the Family Consultant did go on to say that if the Court determined that the parties were able to parent their children in a
co-operative manner, then equal care emerged as an appropriate option. However, the parents did not demonstrate that to me. The husband, in cross-examination, described communication between them as being "awkward". It occurred mostly by way of telephone and email.
When the obvious communication problems between these parents are noted, and then the high level of conflict that exists between them over the nature and extent of the husband's addiction to cannabis, I agree with the Family Consultant that shared care is contra-indicated and thus equal time is not in the best interests of these children.
However, for the reasons I have set out above, an order for substantial and significant time is in their best interests, as well as being reasonably practical.
Conclusion about parenting
Having regard to all the matters I have set out above, as well as all the evidence before me, I propose to make final orders in terms of the interim orders made by Henderson FM, with the exception that in week two of the two-week cycle, the children spend time with their father from after school Friday until 10 am on Saturday. I will, of course, continue the injunction about the husband consuming illegal drugs for 24 hours before, or during the time that the children are with him.
I note that the wife sought an order restraining the husband from permitting the children to have access to pornographic or other age-inappropriate material on his computer. There was no evidence about the children's exposure to any such age-inappropriate material and, accordingly, I cannot make the order sought.
The wife also sought an order for urinalysis for a period of 12 months. The form of order suggested by the wife is problematic, on the facts of this case. For example, it was not suggested that the urinalysis be on a random basis and thus, in theory, the husband could control his consumption so as to minimise the chances of detection in a drug test. In any event, the husband is a long-term user of cannabis and his own evidence about his pattern of consumption leads me to conclude that if it continues at its current level, he is bound to fail a urine test. In any event, the order suggested by the wife does not address the consequences of an unsuccessful urine test. On the facts of this case, urinalysis is of little assistance because I find the husband is a long-term addict. However, if the husband decided in future to take up the implied invitation I have made to him to rid himself of his addiction and thus precipitate a reconsideration of how much time he spends with the children, then he might find that properly supervised urinalysis would greatly assist his evidence in any future application. In the present context, however, it provides no assistance when framed as the wife sought.
Property settlement
Issues about the pool of assets
As indicated above, a number of issues arise in relation to the constitution of the pool of assets to be divided between the parties. At conclusion of the hearing, during submissions, I was provided with the following agreed balance sheet which identifies the issues of agreement, and disagreement. I reproduce that balance sheet below:
| Assets | Ownership | Wife | Husband | Agreed | |
| 1. | Property W | Joint | $850,000 | $850,000 | Yes |
| 2. | ½ interest in Property T | Husband | $500,000 | $500,000 | Yes |
| 3. | BMW vehicle | Wife | $2,000 | $2,000 | Yes |
| 4. | Mercedes Benz | Husband | $6,000 | $6,000 | Yes |
| 5. | Wife’s contents | Wife | $10,000 | $10,000 | Yes |
| 6. | Husband’s contents | Husband | $10,000 | $10,000 | Yes |
| 7. | Westpac account | Husband | $200 | $200 | Yes |
| 8. | Husband’s shares | Husband | $36,400 | $36,400 | Yes |
| 9. | Husband’s stamp collection | Husband | $30,000 | $30,000 | Yes |
| 10. | Husband’s wine collection | Husband | $30,000 | $15,000 | No |
| 11. | Husband’s war medal collection | Husband | $5,000 | $3,000 | No |
| 12. | Husband’s book collection | Husband | $10,000 | $10,000 | Yes |
| 13. | AMP Super | Husband | $26,384 | $26,384 | Yes |
| 14. | Australian Employees Retirement Fund | Husband | $36,353 | $36,353 | Yes |
| 15. | State Super | Husband | $19,278 | $19,278 | Yes |
| 16. | State Super | Wife | $72,093 | $72,093 | Yes |
| 17. | Paid costs | Husband | $27,671 | $27,671 | Yes |
| 18. | Paid costs | Wife | $165 | $165 | Yes |
| 19. | Jewellery | Wife | $2,000 | $2,000 | Yes/No |
| 20. | Wastage on Cannabis | Husband | $20,000 (not less than) | $20,000 | No |
| Total Assets | $1,693,544 | $1,676,544 | |||
| Liabilities | |||||
| 21. | Westpac mortgage | Joint | $240,000 | $240,000 | Yes |
| 22. | 1st Westpac Mortgage over Property T | Husband | $63,000 | $63,000 | Yes |
| 23. | 2nd Westpac Mortgage over Property T | Husband | $100,000 | $100,000 | Yes |
| 24. | Husband’s debt to Mother | Husband | NIL | $70,000 | No |
| 25. | MACU loan | Husband | $2,450 | $2,450 | Yes |
| 26. | Citibank Visa | Husband | NIL | $27,536 | No |
| 27. | Westpac Mastercard | Husband | NIL | $36,707 | No |
| 28. | Commonwealth Bank Mastercard | Wife | $9,800 | $9,800 | |
| 29. | Coles Myer credit card | Wife | $6,000 | $3,000 | No |
| Total Liabilities | $421,250 | $552,493 | |||
| Financial Resources | |||||
| 30. | [Hogan] Family Trust | Husband | $36,578 | $36,578 | Yes |
Valuation of various items of personal property belonging to the husband
Item 8 represents shares in the husband's name. The valuation of $36,400 is arrived at by way of an admission against interest. In other words, this is the figure that the husband himself attributes to the shares, and in the absence of any contrary evidence from the wife, I accept the same.
Item 9 refers to the husband's stamp collection. I accept that the valuation should be $30,000 based on a concession that the husband made in cross-examination that the collection could fetch $30,000 if some time were invested in the collection, and it were properly broken up.
Item 10 is the husband's wine collection. The husband says it is worth $15,000, even though he had represented in a document prepared about two years ago that it had a value of about $30,000. He says the difference arises as a result of consumption of spoilage, but I found his evidence unconvincing in this regard. I accept there was some spoilage but that, for all practical purposes, the wine collection is largely intact. Accordingly, the wine collection is valued at $30,000.
Item 11 is the husband's war medal collection. The wife says it is worth $5,000 and the husband $3,000. There was little evidence about this, but I accept that the husband's estimate is the only one available to the Court, and therefore I accept it as an admission against interest.
Item 12 is the husband's book collection. He agreed in cross-examination that it could have a value of $10,000, and I also accept this as an admission against interest.
Add-back of paid legal costs
The husband agrees that he paid legal costs totalling $27,671 after separation, but disputes that it should be added back. This is a case where the family has had access to quite considerable funds through the [Hogan] Family Trust which is largely controlled by the husband. Indeed, it was uncontested between the parties that through the [Hogan] Family Trust, they received considerable benefit of a financial nature, but made no financial contribution to the same. I think there is an overwhelming inference that any moneys that were paid by the husband by way of legal fees were sourced through the family trust or, in the alternative (but less likely so) came from his own income. It could have been borrowed from his mother as well. In any event, there is no evidence to sustain the add-back that is asserted by the wife.
The wife's jewellery
The wife agrees that she has jewellery, but disputes that it has the value attributed by the husband. There is no formal valuation evidence. I am not satisfied with any of the evidence about the value of these items and, accordingly, can make no finding in relation thereto. Specifically, it is not even possible for me to make a finding about valuation by way of admission against interest.
The waste argument – expenditure on purchase of cannabis
As indicated above, the husband conceded that he spent $20,000 purchasing cannabis during the period of their relationship. That is the only evidence there is about the extent of this expenditure. The wife asserts that it is waste and it should be added back to the property pool as notional property in the control of the husband. According to the description of waste enunciated by Baker J in Kowaliw (referred to above) the husband would have had to act recklessly, negligently or wantonly with matrimonial assets, the overall effect of which was to reduce or minimise the value of the same. On behalf of the wife, it is submitted that the consumption of cannabis was an illegal activity and it thus falls within the category of waste. On behalf of the husband, it is submitted that the evidence before the Court does not sustain such a finding, and that, in any event, the husband's consumption was something that the wife acceded to. I am certainly not satisfied that the evidence indicates that the wife either approved or acceded to his consumption of cannabis. It is more likely the case that she felt helpless in the face of what I have found to be an addiction on his part. However, I am not sure that the mere fact that it was an illegal activity necessarily constitutes the expenditure as waste.
I think the essence of the waste principle is, in fact, whether the activity could be characterised as a joint or individual one. The consumption of cannabis was clearly an addiction that was attributable to the husband alone, and not the wife. There is no conceivable benefit that could be attributed to the wife arising out of this activity. There was no conceivable improvement in life that could be enjoyed by the family as a whole. It was an entirely selfish pursuit, designed to produce pleasure and possibly some form of relief to the husband. If he had not spent this money, I think there is a strong inference that it would have been enjoyed by the family in some other way. Under these circumstances, I conclude that his expenditure on cannabis should be added back as notional property. I note, however, that it comprises a tiny proportion of the overall pool of assets.
The husband's debt to his mother
Item 24 is a liability that the husband asserts that he owes to his mother, and that should be included in the joint pool. However, the evidence of both the husband and his mother indicates to me that it is highly unlikely that his mother will ever ask for this money back. Indeed, her evidence was that if it was paid back, it would simply return to the husband in the form of the inheritance that he will receive from her. Accordingly, it is not appropriate to include this liability in the pool of assets and liabilities.
The husband's Visa and Mastercard debts
Items 26 and 27 are debts asserted by the husband as being expenses incurred for the benefit of the family after separation. He produces no specific evidence about these debts. On his behalf, it is submitted that he was not cross-examined in relation to the same. Even that does not detract from my finding that they ought not to be included as a liability, as he has not discharged the burden on him to satisfy me, on the balance of probabilities, that these debts were incurred for the benefit of the family.
The wife's Mastercard and Myer card debts
Items 28 and 29 are debts that the wife asserts she had at the time of separation. The issue is about quantum. The husband agrees that the Mastercard debt of $9,800 existed at separation and should be a joint liability. In relation to the Coles Myer credit card, I am satisfied that the evidence indicates that the liability at the date of separation was approximately $3,000, and that is the amount that I will allow.
Interest in the [Hogan] Family Trust
Item 30 in the document provided by the parties represents the available cash in the [Hogan] Family Trust. It is agreed that the figure is $36,578. The wife asserts, however, that based on the evidence of the husband and his mother, the husband has such an element of control over this trust that, for all practical purposes, it should be treated as property available to him. The husband says it is a financial resource. I agree with the husband in this regard. The mere fact that the husband has, I accept, unrestricted access to these funds does not change its character from a financial resource to property. I will treat it as a financial resource. It is clearly something to be taken into account because it forms part of what I accept from the evidence will be the inheritance that the husband will receive from his mother.
Conclusions about the pool of assets and liabilities
Apart from the matters in respect of which I have made findings in the previous section, I propose to ignore items 7 and 18, on the basis that the amounts are relatively small, and their elimination will make the final adjustment process simpler and thus more transparent.
Accordingly, I find the pool of assets and liabilities available to the parties as follows:
| Assets | Ownership | Value | |
| 1. | Property W | Joint | $850,000 |
| 2. | ½ interest in Property T | Husband | $500,000 |
| 3. | BMW vehicle | Wife | $2,000 |
| 4. | Mercedes Benz | Husband | $6,000 |
| 5. | Wife’s contents | Wife | $10,000 |
| 6. | Husband’s contents | Husband | $10,000 |
| 8. | Husband’s shares | Husband | $36,400 |
| 9. | Husband’s stamp collection | Husband | $30,000 |
| 10. | Husband’s wine collection | Husband | $30,000 |
| 11. | Husband’s war medal collection | Husband | $3,000 |
| 12. | Husband’s book collection | Husband | $10,000 |
| 13. | AMP Super | Husband | $26,384 |
| 14. | Australian Employees Retirement Fund | Husband | $36,353 |
| 15. | State Super | Husband | $19,278 |
| 16. | State Super | Wife | $72,093 |
| 20. | Wastage on Cannabis | Husband | $20,000 |
| Total Assets | $1,661,508 | ||
| Liabilities | |||
| 21. | Westpac mortgage | Joint | $240,000 |
| 22. | 1st Westpac Mortgage over Property T | Husband | $63,000 |
| 23. | 2nd Westpac Mortgage over Property T | Husband | $100,000 |
| 25. | MACU loan | Husband | $2,450 |
| 28. | Commonwealth Bank Mastercard | Wife | $9,800 |
| 29. | Coles Myer credit card | Wife | $3,000 |
| Total Liabilities | $418,250 | ||
| Net Assets | $1,243,258 | ||
| Financial Resources | |||
| 30. | [Hogan] Family Trust | Husband | $35,578 |
Contribution
It should be remembered at the outset that even the wife concedes that the husband has made a greater financial contribution, and the only issue for me to determine is whether, having regard to this agreed fact, contribution should be assessed in his favour at 60 per cent (as asserted by the wife) or 65 per cent (as asserted by the husband). The 5 per cent difference on the net pool of assets and liabilities, but excluding the financial resource, amounts to approximately $62,162.90.
The husband's financial contribution is significantly greater than that of the wife. Whilst the wife made a substantial contribution to the purchase of their first property at Property P, arising out of the sale of her property at Property E, even she concedes that, at that time, he made twice the contribution that she did. The Property P property was later sold in order to purchase the former matrimonial home. Specifically, she says that she contributed $200,000, but he contributed $400,000. Moreover, I accept that there were times when the only substantial income available to the parties was through the [Hogan] Family Trust.
On the wife's proposal, attributing to the husband's 60 per cent contribution, produces a 20 per cent differential, which is worth about $248,651,60. On the husband's proposal of contribution at 65 per cent, it produces a 30 per cent differential, which is worth about $372,977.40. Over time, the precise value of the husband's greater contribution reduces because of the myriad of other contribution made by the wife, both financial and non-financial. From the evidence of both parties, there appears to have been some not inconsiderable "leakage" in the sense that not all of the sale proceeds of prior properties were applied towards the acquisition of later properties, and there is no clear accounting provided that would explain how this leakage was spent. Over time, of course, the former matrimonial home has increased in value, an increase that would have occurred either because of what the parties did, or in spite of it.
Accordingly, having regard to all of the evidence, and even taking into account the substantial benefits enjoyed by the family as a result of the husband's access to the [Hogan] Family Trust, I think a 20 per cent differential is just and equitable under the circumstances. Accordingly, I assess the husband's contribution as at the date of separation to be
60 per cent. That is the figure proposed by the wife. It must be recognised that in view of the findings I have made about the husband's addiction to cannabis, it must follow that her contribution was a difficult one under the circumstances.
Assessing s.75(2) considerations
On behalf of the wife it is asserted that this should be 15 per cent, and on behalf of the husband it is asserted it should be 5 per cent.
Both parties are about the same age. They both appear to be in good health, subject only to the husband's cannabis addiction which does not appear to be impacting on his earning capacity.
The husband is a [educational professional]. In his financial statement filed 14 August 2008 he deposes to having a salary of $1,444 per week as well as receiving other income of about $45 per week from his investments. In her financial statement filed 8 August 2008, the wife deposes to earning $970 per week, consisting of a salary of $150 per week, family tax benefit of $160, a parenting payment of $260, child support of $200, and board received from a boarder of $200. She works part time as a [information manager].
The husband's continued earning capacity is clear and I am satisfied that as a result of the cross-examination of the wife that she does have a capacity to earn more than she currently does as a [information manager], for which she is qualified and experienced. For as long as the children are in her care, however, I do not think that she will be able to return to work full time, and I do not regard it as reasonable to expect her to do so. In any event, there is no evidence before me to indicate that her earning capacity will match that of the husband.
Clearly, the husband has access to financial resources that she does not. He enjoys access to the [Hogan] Family Trust funds, at will.
His mother, during her lifetime, will, I am satisfied, continue to provide to assist him with financial needs. He is a joint tenant with his mother in the Property T property, thus meaning that when his mother dies, this property will pass automatically to him by way of statutory survivorship.
The husband's mother, Mrs H senior, provided evidence in this case. She is an 86-year-old widow. She gave evidence that she is in poor health. She had a fall recently. She has high blood pressure. She relies on hearing aids. She suffers from angina. She gave evidence that she has provided about $70,000 worth of assistance to her son in 2008. She believes that this was spent on car repairs, legal fees, repayment of debts and living expenses. She gave evidence that she has made a will that appoints her son as the sole beneficiary apart for $100,000 to be kept in trust for the grandchildren.
The husband gave evidence about the inheritance he expects to receive from his mother. Apart from receiving the Property T property as a result of her death, he believes that apart from the first $100,000 to be made available for the children, he will receive the remaining proceeds of his mother's Canberra property ($500,000), possibly her jewellery, silverware, a Mercedes Benz motor vehicle, and perhaps $50,000 in savings.
In the circumstances of this case, I am entitled to take into account the prospective inheritance that the husband will receive, and to treat it as a financial resource or, in any event, as a s.75(2)(o) consideration. I had evidence from both the husband and his mother. He is her only son. It could not be said that the husband's benefit is in any way speculative, on the evidence before me. He himself volunteered the information about the prospective inheritance. One must not lose sight of the fact that the parties agree that the husband's half interest in the Property T property was $500,000 and this must mean that once his mother dies, his interest in the property would double, whatever it is worth at the time. I cannot ignore the nature and extent of the husband's potential and future benefits on the evidence before.
Having regard to the parenting orders that I have made, the wife will be primarily responsible for the care and control of the children who are aged 10 and 7. Of course, she will have the benefit of the payment of child support from the husband.
The husband already has accommodation, which he proposes to continue to use for the benefit of the children and himself. As for the wife, whilst her preference is to retain the former matrimonial home if possible, if it is not possible she will have to re-accommodate the children and herself, which might involve borrowing from a financial institution, subject to her capacity to do so. Clearly, this is a greater need that she has over and above that of her husband. Whatever happens, he will be relieved of responsibility for the mortgage secured over the former matrimonial home.
In these circumstances, I find that the wife's claim to a s.75(2) adjustment of 15 per cent is appropriate. I appreciate that creates a
30 per cent differential which, on the current pool of assets, amounts to $372,977.40. I note, however, that the husband's prospective benefits on the death of his mother are considerably greater than that.
I recognise that the husband has debts that he will need to pay, but I am satisfied that he has the resources to be able to meet these debts.
Conclusion about contribution and future needs
I have assessed contribution in the husband's favour at 60 per cent, and future needs under s.75(2) in the wife's favour to the extent of
15 per cent. Accordingly, the impact of this assessment would be a final adjustment of 55 per cent in favour of the wife, and 45 per cent to the husband. No one submitted that it was not appropriate to apply this percentage across both the superannuation and non-superannuation assets, and I agree that it is appropriate in these circumstances.
No splitting order was sought, however, so each party will retain their superannuation.
Just and equitable Order
If the wife receives 55 per cent of the net final pool of assets and liabilities as I found it, she will receive total entitlements of $683,791 and the husband will receive total entitlements of $559,466. Assuming that the wife retains the former matrimonial home (subject to the mortgage), and each retains what is already in their possession and control, the following scenario arises:
Wife
| Property W | $850,000 |
| BMW vehicle | $2,000 |
| Wife’s contents | $10,000 |
| State Super | $72,093 |
| Westpac Mortgage | ($240,000) |
| Commonwealth Bank Mastercard | ($9,800) |
| Coles Myer credit card | ($3,000) |
| Payment from the husband | $2498 |
| TOTAL | $683,791 |
Husband
| ½ interest in Property T | $500,000 |
| Mercedes Benz | $6,000 |
| Husband’s contents | $10,000 |
| Husband’s shares | $36,400 |
| Husband’s stamp collection | $30,000 |
| Husband’s wine collection | $30,000 |
| Husband’s war medal collection | $3,000 |
| Husband’s book collection | $10,000 |
| AMP Super | $26,384 |
| Australian Employees Retirement Fund | $36,353 |
| State Super | $19,278 |
| Wastage on Cannabis | $20,000 |
| 1st Westpac Mortgage over Property T | ($63,000) |
| 2nd Westpac Mortgage over Property T | ($100,000) |
| MACU loan | ($2,450) |
| Payment to the wife | ($2498) |
| TOTAL | $559,467 |
In theory, it might be possible for the wife to acquire the home if she can take over the mortgage. It may well be difficult, having regard to the financial evidence that I have before me, but given that there is a clear benefit to the wife and the children of continuing to reside there, I should at least provide her with a reasonable opportunity to do so. If she cannot do so within six weeks, the former matrimonial home should be placed on the market for sale, with orders to give effect to the settlement referred to above.
Is this is just and equitable in the end result? I believe it is. The wife has the opportunity to buy the husband out, if she can afford so, and thus provide long-term accommodation for the children and herself. Even if she cannot, she will receive a substantial amount by way of property settlement, with a significant cash component that enables her to re-accommodate the children and herself. She will have her own superannuation entitlement that will assist in the provision for her retirement, in the long term.
Overall, the husband is not in a dissimilar position, having regard to their different financial circumstances. In the longer term, he will have the benefit of access to financial resources that will, in the fullness of time, probably result in him having a stronger financial position than that of his wife.
Overall, I am satisfied that the orders I propose are just and equitable.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Monique Robb
Date: 14 November 2008
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