Hopley & Hopley
[2007] FamCA 865
•23 August 2007
FAMILY COURT OF AUSTRALIA
| HOPLEY & HOPLEY | [2007] FamCA 865 |
| FAMILY LAW – CHILDREN – Child to live with mother and spend time with father as per orders FAMILY LAW – PROPERTY – Order for sale of real property – division of other property |
| APPLICANT: | Mrs Hopley |
| RESPONDENT: | Mr Hopley |
| FILE NUMBER: | PAC | 395 | of | 2007 |
| DATE DELIVERED: | 23 August 2007 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | STEVENSON J |
| HEARING DATE: | 16, 17, 18 July 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levy |
| SOLICITOR FOR THE APPLICANT: | Coleman & Greig, Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Lees & Givney, Solicitors |
Orders
PARENTING ORDERS
I make the following orders:
1.That all existing parenting orders in relation to the children of the marriage be discharged.
2.That the parties have equal shared parental responsibility for the child … born … June 1996 (‘the child’).
3.That the child live with the mother at all times other than the periods specified in order 4, during which he will live with the father.
4.That the child live with the father as follows:
1.until the first week of Term 1 in 2008:
1.1 each alternate weekend from 5.30 pm on Friday until 6.00 pm on Sunday,
1.2 each alternate Wednesday from 5.00 pm until 9.00 pm during school term time.
2.from the first week of Term 1 in 2008
2.1 each alternate week from the conclusion of school on Friday until the commencement of school on Wednesday during school term time.
3.for one half of all school holidays, as agreed between the parties in writing or, failing agreement, the first half in odd numbered years and the second half in even numbered years.
4.from 9.00 am until 5.00 pm on Fathers Day, if the child is not with the father pursuant to these orders.
5.That the father return the child to the mother at 9.00 am on Mothers Day if he is in the care of the father pursuant to these orders.
6.That the parties be at liberty to vary these parenting orders by agreement between them from time to time.
PROPERTY ORDERS
7.That the parties do all things and execute all documents required to effect the sale, for the best price reasonably obtainable, of the property situate at and known as … (“the P property”) in the State of New South Wales and to distribute the proceeds of sale as follows:
1.In payment of agents commission and expenses
2.In payment of legal costs incidental to such sale
3.In discharge of the mortgage to the National Australia Bank
4.In payment to the wife of the sum required to constitute her entitlement to 60% of the net non-superannuation property of the parties, defined by reference to the assets set out in paragraph 72 and the liabilities set out in paragraph 87 hereof.
5.In payment of the balance to the husband.
8.1That, simultaneously with the settlement of the sale of the P property, each of the parties shall do all things and execute all documents necessary to effect the transfer to the husband of the whole of the wife’s right to title to and interest in the property situate at and known as … (“the W property”) in the State of New South Wales.
8.2That the husband indemnify the wife and keep her indemnified against all liability arising from the mortgage to the ST George Bank registered on the title to that property.
9.That each of the parties do all things and execute all documents required to effect the transfer to the husband of the whole of the Wife’s right title to and interest in:
1. Macquarie Bank joint account
2. AMP Policy
10.That the husband’s superannuation interest with A Employee Superannuation Account shall be split to create a superannuation interest for the wife as follows:
10.1Pursuant to Section 90MT(2) of the Act and Regulation 29 of the Family Law Regulations, the Court determines the value as at 30 June 2007 of the husband’s superannuation in A Employee Superannuation Account is $309,492.69.
10.2Pursuant to Section 90MT(4) of the Act, the Court allocates a base amount to the wife in respect of the husband’s superannuation interest in A Employee Superannuation Account of $159,132.
10.3Pursuant to Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable with respect to the superannuation interest of the husband in A Employee Superannuation Account, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $309,492.69 and there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
10.4That these orders shall bind the trustee of the fund and these orders take effect from the operative time being the fourth business day after the date of service of these orders on the trustee.
11.That, otherwise, each of the parties be declared to be solely entitled to all items of property presently in his or her possession or control.
12.That the parties cause the money held in trust by the wife’s solicitors, Coleman and Greig, to be applied as follows:
1.In payment of the amount of capital gains tax properly payable by the husband on the sale of shares pursuant to he orders of 2 December 2005.
2.In payment of 60% of any balance to the wife.
3.In payment of any balance to the husband.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Stevenson delivered this day will for all publication and reporting purposes be referred to as Hopley & Hopley.
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 395 of 2007
| Mrs Hopley |
Applicant
And
| Mr Hopley |
Respondent
REASONS FOR JUDGMENT
Mr Hopley (“the husband”) and Mrs Hopley (“the wife”) are the parents of 3 children:
The eldest son born … June 1989 (18)
The middle son born … April 1991 (16)
The youngest son born … June 1996 (11)
Neither party sought orders in relation to the eldest or the middle son. The husband and the wife require a court decision to determine how much time the youngest son (“the child”) spends with each of them. They are also in dispute as to settlement of their property.
In an amended application filed on 6 June the wife sought orders that the child spend time with his father each alternate weekend from Friday afternoon until Sunday afternoon, and as otherwise agreed. In her oral evidence she said that the child should continue to spend time with his father each alternate Wednesday from 5:00pm until 9:00pm.
The respondent, the husband, sought orders that the child spend time with him each alternate week from after school on Friday until before school on Wednesday. He also sought orders that the child be with him for half of all school holidays and on special occasions.
BACKGROUND
The husband, who is 51, and the wife, who is 44, began their relationship in June 1983. They became engaged in November 1983 and married in October 1984. They separated on 23 January 2005, having lived together for just over 20 years.
In 1975 the husband purchased National Australia Bank shares. His shareholding increased over a number of years, as a result of a dividend reinvestment arrangement and the purchase of an additional 198 shares in 1987, 1988 and 1998.
In 1981 the husband purchased vacant land at K, which he sold for $38,000 in 1983. During the parties’ engagement the husband purchased a block of land at B for $46,000. The parties chose the land together as the site for their matrimonial home.
A house was built on the land at a contract price of $52,500. The husband’s evidence, which I accept, was that the total cost of the house and land was approximately $110,000. This figure included acquisition costs, soft furnishings and landscaping.
According to the husband the parties borrowed $45,000 from the National Australia Bank and, otherwise, he provided the money for the purchase of the land and the construction of the home. His unchallenged evidence was that he contributed the sale proceeds of his land at K and a retrenchment payment of $20,000 which he had received in July 1984. He said that the additional component of about $7,000 came from his savings. The wife said that the latter amount was a first homeowner’s grant, which the husband received as the land was purchased in his name. I am inclined to accept the wife’s evidence as it seems likely that the parties received such a grant.
At the date of marriage the husband had National Australia Bank shares, $5,000 in savings, a Toyota Celica car, furniture and a superannuation benefit. The wife had savings which she said amounted to $8,000. The husband said that her savings amounted to $5,000 but he adduced no supporting evidence.
In May 1989 the wife left the paid workforce due to her pregnancy with the eldest son. She resumed part-time work in a medical practice in September 1989. She again ceased work in April 1991, when the middle son was born and resumed employment in a medical practice when he was about 6 months old.
In 1988 the husband purchased an investment property at G for $110,000. A mortgage of $80,000 was obtained from the Commonwealth Bank and the balance came from the proceeds of sale of a motor vehicle, amounting to about $22,000.
Between 1995 and 2002 the husband studied for a Bachelor degree as an external student. He did one subject per semester and studied mostly at night. He now has a tertiary qualification.
In 1996 the G property was sold for $104,000. The husband’s unchallenged evidence was that the net proceeds amounted to some $50,000. This money was applied to the purchase of vacant land at P (“the P property”).
The P property was purchased in 1997 for $210,000. The parties constructed a house on the land over the next 2½ years, while they lived with the husband’s mother in her home at E. The husband gave a detailed account of the source of the funds for the purchase of the land and the construction of the house, which was as follows:
· purchase price of land $210,000
· building contract $258,000
· swimming pool $22,000
· landscaping $51,000
· blinds $12,000
· carpets $8,000
· air conditioning $12,000
· stamp duty and legal costs $7,000
· Total: $580,000
The wife did not seem to dispute any of this evidence.
The husband said that this money came from:
· net sale proceeds of the B property $268,000
· net sale proceeds of G property $50,000
· National Australia Bank mortgage $110,00
· retrenchment package received by him in 1995 $38,000
· savings held by the parties when the B property was sold $34,000
· savings accrued while the parties lived with the husband’s mother $80,000
· Total: $580,000
In June 1996 the wife ceased work when the youngest son (“the child”) was born. She resumed paid employment at a Medical Centre in July 1999.
In 2000 the wife commenced the “green landscaping” of the P property. Her uncontradicted evidence was that she purchased plants, dug in manure, spread mulch, laid stepping stones and pebbles and did the planting.
In 2001 the parties borrowed $110,000 on a line of credit from the National Australia Bank. They purchased a share portfolio in the wife’s name for $54,000 in October 2001. This investment was sold in July 2003 and the sale proceeds were redeposited into the line of credit.
In May 2003 $8,200 was withdrawn from the line of credit and invested in an ING account in the name of the husband. This investment was rolled over into a managed share portfolio in August 2003.
A further $80,000 was then drawn down from the line of credit and invested in the same managed share portfolio in the husband’s name. This investment was sold in February 2006, pursuant to the interim consent orders made on 2 December 2005. The net proceeds of sale of this portfolio of shares amounted to $58,344, of which $50,746 was paid to the wife. The balance of $7,596 was retained in trust by the solicitors for the wife, to meet capital gains tax payable on the sale of the shares.
This figure of $7,996 was calculated by a chartered accountant, Mr N (exhibit 6). In cross-examination the husband admitted that he failed to inform Mr N that he had a carried forward tax loss from the sale of the G property. In his report Mr N stated he assumed that the husband had no carried forward capital loss.
In July 2004 the husband purchased an investment property at W for $620,000. The total acquisition costs amounted to $649,000. It was agreed that the source of the purchase money was as follows:
St George Bank mortgage secured on the W property
$480,000
St George Bank mortgage secured on the P property
$145,000
National Australia Bank loan for stamp duty
$24,000
The parties separated on 23 January 2005. The husband moved into his mother’s home at E, where he has since lived. He and his mother both gave evidence of an arrangement that he pay her board of $100 per week. He said, and I am inclined to accept, that he has been unable to afford to make these payments. There is an issue as to whether the husband has a debt to his mother of approximately $9,700 on account of unpaid board.
Between January and August 2005 the children spent time with the husband each alternate weekend; each other Saturday and for one week during the Easter and July school holidays. The wife left the former matrimonial home each alternate Saturday night and the husband stayed there with the boys. In August 2005 the wife withdrew her consent to the husband staying in the family home on alternate Saturday nights and spending time with the boys each other Saturday. From January 2006 the boys have spent time with their father each alternate weekend from Friday afternoon to Sunday afternoon and each alternate Wednesday afternoon. They also saw their father on special occasions and during school holidays.
On 2 December 2005 interim orders were made by consent, in relation to spouse maintenance and partial property settlement. These orders provided for the sale of a share portfolio to which I have referred, and obliged the husband to make the following payments:
· all St George Bank and National Australia Bank mortgage instalments
· the wife’s mobile phone account
· the wife’s car expenses, including petrol
· half of private health insurance
· spouse maintenance of $346 per month pending sale of the share portfolio.
On February 2006 the National Australia Bank line of credit was discharged when bank shares were sold. The sale proceeds amounted to approximately $58,000.
The wife received $50,748 from the sale of the share portfolio in early 2006. She deposited the money into an ING account and spent $2,400 on a Gold Coast holiday for herself and the children; $2,500 on the purchase of a computer and $20,700 for a Holden Commodore motor vehicle. It was agreed that the sum of $50,748 be added back to the list of assets.
In May 2005 the wife commenced a relationship with Mr S. Their evidence was that they do not intend to live together and that there is no intermingling of their financial affairs. In my view, their evidence was credible and will be accepted.
The wife’s new relationship clearly has been problematic for the husband. There was an incident at the middle son’s soccer match on 22 April 2006 which reflects no credit upon him. The husband verbally abused Mr S, to the point where other parents intervened. An attempt was made on behalf of the husband to blame Mr S for this incident. It was suggested that Mr S blew a kiss to the husband. It seemed clear to me that the incident occurred only because the husband ‘took offence’ to use his words, at Mr S’s attendance at the match.
The interim orders made on 2 December 2005 provided that the wife have the use of a Magna motor vehicle. The husband purchased this car from his employer, using $1,500 which he borrowed from his brother. They entered into a written loan agreement, which provides that the principal sum carries interest at the rate of 5% per annum.
Until 2004 the husband was a director and shareholder in a company. This company was incorporated by the husband’s father in November 1981 and became the Trustee for the Hopley Family Trust. The husband’s father used the trust to manage his investments on his retirement.
At various times before and after the death of the husband’s father in 1995, he and his three brothers became directors and shareholders of the company. The husband’s brother, gave unchallenged evidence that he has had the role of managing the company’s investments. He said that the company and the trust operate solely for the benefit of their mother. He said, and I accept, that none of the brothers has ever received a dividend from the company.
The husband’s brother gave evidence that the husband resigned as director of the company in 2005. He transferred his share to his brother in October 2004 and assigned his interests in any asset or income of the trust to his mother at the same time.
The wife did not allege that the husband received any money from these transactions or that he disposed of any valuable asset which should be brought to account. The husband’s previous involvement with the company thus has no relevance to these proceedings.
PARENTING ISSUES
APPROACH TO THESE PROCEEDINGS
The legislative provisions which govern parenting issues are contained primarily in Part VII of the Family Law Act. The objects of this Part are set out in section 60B(1) and, in summary, provide that children’s best interests are met by:
· ensuring that children have the benefit of a meaningful involvement of both parents in their lives to the maximum extent, consistently with their best interests
· protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
· ensuring that children receive adequate and proper parenting to help them achieve their full potential
· ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are set out in section 60B(2) and include the following:
· children have a right to know and be cared for by each of their parents
· children have a right to spend time on a regular basis and communicate with both parents and other people significant to their care, welfare and development, for example, grandparents and other relatives
· parents should jointly share duties and responsibilities concerning the care, welfare and development of their children.
These principles are expressed to be subject to the best interests of children.
In deciding whether to make a particular parenting order the court must regard the child’s best interests as the paramount consideration: section 60CA. In determining what is in a child’s best interests, the court must have regard to the primary and additional considerations set out in section 60CC.
Section 61DA(1) obliges the court to apply a presumption of equal shared parental responsibility, when making a parenting order. This 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 child abuse or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility: section 61DA(4).
The presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent. If there is an order for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent: section 65DAA(1). If there is an order for equal shared parental responsibility but the child is not to spend equal time with each parent, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent: section 65DAA(2).
As noted, Mrs Hopley seeks orders which would limit the child’s time with his father to 2 nights and 1 afternoon per fortnight. She seeks no orders at all which would allow the child to spend time in school holidays or on special occasions with his father. Presumably, any such time would be dependent upon her agreement.
Mr Hopley seeks orders that the child spend each alternate weekend from Friday afternoon until Monday morning with him, from the date of my orders. He seeks that the child live with him from Friday afternoon until Wednesday morning in each alternate week from the start of Term 1 in 2008. He also seeks orders for the child to spend time with him on special occasions and during school holidays.
THE PRIMARY CONSIDERATIONS
section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;
All three boys have a very close, loving relationship with their father. The wife readily conceded that the boys and their father love each other and that he is a good role model.
The husband is obviously a very committed parent, as is The wife. Both of the boys’ parents have a great deal to offer them. It can only be to their benefit that both their mother and their father play a very significant role in their lives.
section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There was no suggestion of any need to protect the child, or the older two boys, from abuse while in the care of either parent. The husband has obviously struggled to come to terms with the wife’s new relationship with Mr S. This difficulty has led him into some ill-advised behaviour. I have in mind particularly the incident at the middle son’s soccer match in 2006. I appreciate that the husband said that he regrets his conduct on this occasion but it may be that he considered it expedient to say so.
I have considerable concern at the husband’s attempt to involve the eldest son in these proceedings, as a witness in his case, in late 2006. He admitted that he prepared a statement and took the eldest son to a Justice of the Peace in December 2006. It can hardly be suggested that the husband focussed on the eldest son’s needs, rather than his own, on this occasion. Again the husband said that he regretted his actions and, again, I wondered if he considered it expedient to say so.
The husband would do well to desist from this kind of conduct in the future. I can only hope that he now realises that any attempt to turn the boys into his allies in the dispute with their mother would be of no benefit to them at all.
ADDITIONAL CONSIDERATIONS
section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;
Much reliance was placed by the wife on the views expressed by the child to the Family Consultant, Dr H. Dr H reported as follows:
“[The child], aged 10 years and 5 months, seemed a tentative, anxious Grade 4 boy. His constant refrain to questions was ‘I don’t really know’. He seemed at pains to avoid any preference with regard to his parents. The only exceptions were his nomination of his father as the crankier of his parents and the one who tends to spoil him.
[The child] anticipated that he would feel ‘weird’ if the court were to determine that he live half the time with each of his parents. However he said ‘I don’t really know’ how he would feel about a decision for him to remain living with his mother. Nevertheless, he wanted to urge the court to leave his living arrangement as it presently was. In the observations sessions, [the child] interacted naturally with both his parents and his older brothers, at times irritating [the middle son] by pushing puppets at him.”
In fact, all three boys told Dr H in clear terms that their wish is the current arrangements to remain unchanged. The husband suggested that these wishes are driven by the fact that they currently live in a comfortable home with a swimming pool, close to their friends. Dr H echoed the same sentiment when he observed that their wish for no change is tied to the fact that they spend time with their father at the home of his mother.
For these reasons I do not attach significant weight to the child’s expressed wish to leave his living arrangements unchanged. The reality is that the former matrimonial home is to be sold and each parent will shortly establish a new residence. A significant change is, therefore, inevitable.
I accept that the child’s stated wish for no change to the present arrangements is closely tied to the fact that he lives in the former matrimonial home. I accept also that the husband will establish a household independently of his mother as soon as possible. There was no evidence before me that the child has turned his mind to the time that he wants to spend with his father in these new circumstances.
section 60CC(3)(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);
The wife maintained that the child has a different relationship with his father than do the eldest son and the middle son. The older boys share with their father an interest in heavy metal music and the three of them regularly attend concerts together. The wife claims that the child is left out and feels excluded. The husband said that, when he and the eldest son and the middle son go to a concert, he tries to do “something special” with the child the next day.
Whatever may be the truth of the wife’s allegations that the child feels excluded from activities involving his father and brothers, there is no doubt that he has a loving, constructive relationship with the husband. I regard it as significant that the eldest son and the middle son have chosen to spend alternate weekends with their father at the home of their grandmother. As Dr H observed:
“Not surprisingly, [the eldest son] and [the middle son] are not enamoured by having to spend time with their father at the paternal grandmother’s home. In one sense, it is testimony to [the husband’s] relationship with both [the eldest son] and [the middle son] that they have continued to spend alternate weekends with him for as long as they have.”
section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
In my view, no concerns arise as to the ability and willingness of each of the parties to encourage and facilitate a close and continuing relationship for the boys with their other parent. For example, for some months after the separation the wife vacated the former matrimonial home on alternate Saturday nights, to enable the husband to stay there with the children. Another example is that the wife has been working on a restoration of old videos of the boys and their paternal grandfather, as a present for the husband for Fathers Day.
section 60CC(3)(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;
Dr H recommended that the child spend time with his father on alternate weekends and “at least one night during each week”. In his oral evidence Dr H said:
“I would not regard alternate weekends and one overnight for [the child] as terribly appropriate, at his age.”
He also said:
“Generally children benefit from both parents being involved in their schooling.”
Further, Dr H said:
“I would not recommend a gradual change for [the child] at his age.”
I can see no reason why the child should be deprived of time in the school holidays with his father. I have no doubt that the husband would make proper arrangements to care for him, if he is working during the day. The husband has three brothers, with whom he has close relationships. In the past the child has stayed overnight with his aunt and uncle and enjoyed time with his cousins. I would regard orders for the child to spend half of all school holidays with his father as an opportunity to spend time with the extended paternal family.
The husband also gave evidence that he would arrange for the child during holidays to spend time with his friends during the day, if he was required to work. I imagine that the child would enjoy doing so. Further, the husband said that he would look favourably upon any request by the child to spend some part of the Christmas holidays with his brothers at the home of their mother, if orders provided that he should be with him at the time.
In my view, it is likely that the eldest son and the middle son will opt to spend time with their father during school holidays once he establishes his own home, particularly if he is on leave from work. I appreciate that the eldest son is now 18 and will not be at school after this year. The husband thought it likely that the eldest son would enter the IT industry and work during the day and study at night.
section 60CC(3)(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;
No issues arise pursuant to this subsection.
section 60CC(3)(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;
section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
In my view there are no concerns as to the capacity of either parent to provide for the children’s needs or as to their attitude to the children and the responsibilities and duties of parenthood. I have referred already to the husband’s ill-advised behaviour at the soccer match and in his attempt to involve the eldest son as a witness in his case. It is to be hoped that he is now coming to terms with the wife’s new relationship and that he will desist from such behaviour in the future. There was nothing in the evidence to suggest that he has repeated his unfortunate behaviour at the soccer match since April 2006. If he is still having difficulty in accepting the wife’s relationship with Mr S, he would be wise to consider seeking professional help.
section 60CC(3)(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;
section 60CC(3)(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
section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
section 60CC(3)(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
section 60CC(3)(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;
No relevant considerations arise pursuant to these subsections.
CONCLUSION
The Presumption of Equal Shared Parental Responsibility
There was no submission that this presumption did not apply or has been rebutted. It seems to me to be abundantly clear that it is in the child’s best interests for his mother and father to have equal shared parental responsibility for him.
The result is that I am required to consider whether equal time with each parent is in the child’s bests interests and reasonably practicable. The husband did not seek an order that the child spend equal time with each parent. It may well be that he recognised the reality that his work commitments prevent such an arrangement.
In my view, another factor which militates against equal time is that such an arrangement would put the child in a significantly different position to his two brothers, vis-à-vis his parents. I regard it as unlikely that the eldest son and the middle son would want to change homes every week or fortnight or month, at their age.
It is then necessary that I consider whether it is in the child’s best interests, and reasonably practicable, for him to spend substantial and significant time with each parent. Section 65DAA(3) gives some guidance as to the meaning of the phrase “substantial and significant time”, although not in any temporal sense. The indication is that “substantial and significant time” involves weekdays as well as weekends and the opportunity for parents to participate in a child’s daily routine, as well as events of special significance. I have referred already to Dr H’s opinion that children generally benefit from involvement of both of their parents in their education.
There is always an element of arbitrariness in determining how many nights per fortnight a child should spend with each parent, as I am required to do in the present case. There is no magic number, from the point of view of the child’s best interests.
I accept Dr H’s opinion that an increase in time to include Sunday night, pending the husband’s move into his own accommodation, is only “a peripheral issue”. In my view, this change would be an unnecessary disruption to the child’s routine and may well jeopardise the willingness of the eldest son and the middle son to accompany him to stay with their father.
I am persuaded that it is in the child’s best interests that there be an increase in time with his father from the start of Term 1 in 2008. I assume that the husband will have his own accommodation by that time.
Dr H was of the clear view that alternate weekends and 1 overnight per fortnight was not appropriate for the child at his age. In my opinion, the husband’s amended proposal is likely to the child’s needs and I will make orders accordingly.
SETTLEMENT OF PROPERTY
APPROACH TO THESE PROCEEDINGS
According to guidelines established through a series of leading decisions, the Court is required to determine the following matters on the evidence:
· firstly, the assets, liabilities and financial resources of the parties to the marriage are to be determined
· secondly, all relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other
· thirdly, the matters in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2) must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution
· finally, an order under section 79 must not be made unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order.
The Assets
The only dispute in relation to the assets was the balance of the wife’s Commonwealth Bank account. An amount of $222 was included in the list of agreed assets which was submitted on her behalf. In submissions, however, counsel for the husband suggested that the amount should be $2,156, which was the figured included in the wife’s Financial Statement sworn on 13 July 2007.
I can only make a finding on the basis of available evidence. The result is that the wife’s Commonwealth Bank account will be included as an asset with a value of $2,156. Otherwise, the nature and value of the assets were agreed.
I find the assets of the parties to be as follows:
Non Superannuation Assets
1.
P Property (J)
$860,000
2.
W Property (J)
$566,500
3.
Shares (H)
$125,970
4.
National Australia Bank account (H)
$500
5.
Proceeds of sale of Magna motor vehicle (H)
$2,000
6.
Household Contents (W)
$8,000
7.
Proceeds of sale of Share Portfolio (W)
$50,747
8.
Commonwealth Bank account (W)
$2,156
9.
Macquarie Bank account (J)
$336
10.
AMP Policy (J)
$2,532
Superannuation Assets
11.
A Benefit (H)
$309,492
12.
Portfolio Care Benefit (H)
$22,219
13.
A Benefit (W)
$4,738
14.
BT Benefit (W)
$8,710
A sum of $7,596 is held in trust by Messrs Coleman and Greig, the solicitors for Mrs Hopley. I have not included these funds as an asset because the money was sidelined to pay capital gains tax on the sale of the share portfolio in 2005/2006. As seen below, there is a difficulty in the calculation of the amount of this capital gains tax.
Liabilities
The parties were agreed that they have the following liabilities:
1.
St George Bank mortgage
$480,000
2.
National Australia Bank mortgage
$144,000
3.
Husband’s Debt to his Brother
$1,581.
There was a dispute as to the following liabilities:
1.
Costs on Sale of P property
2.
Capital Gains Tax on sale of the Existing Shares
3.
Husband’s Visa Card debt
4.
Husband’s Debt to his Mother for Unpaid Board
In the absence of any evidence, I am at a loss to understand how I can make any finding as to the selling costs of the P property. I was informed by counsel for the husband that it was agreed that I should make an order for sale of the property and a division of the net proceeds to reflect the overall finding as to percentage distribution of the net pool of property between the parties. The state of the evidence leaves me little choice but to make such an imprecise order.
The husband maintained that he will incur capital gains tax of $13,446 when he sells his remaining shares. The wife maintained that there should be no allowance for capital gains tax on the sale of these shares. This dispute arose from the husband’s failure to inform Mr N of his carried forward taxation loss.
Counsel for the wife extracted from the husband an admission that he failed to inform Mr N of a carried-forward loss of $12,935, resulting from the sale of the G property. It was clear from Mr N’s report that he assumed that the husband had no such carried-forward capital loss available to deduct from the net capital gain on the sale of the share portfolio.
On this assumption, Mr N calculated at $7,596 the capital gains tax payable on the sale of shares pursuant to the orders of 2 December 2005. No submission was put to me as to what I should make of Mr N’s evidence, in light of the husband’s admission. There was a bald assertion, implicit in the list of agreed assets submitted on behalf of the wife, that no capital gains tax will flow to the husband on the sale of the existing shares.
The husband’s 2006 income tax return did not include any carried-forward loss. It may thus be that the loss on the sale of the G investment property was reflected in the husband’s 2005 income tax assessment but the evidence does not enable me to make any such finding. I simply do not know what amount of capital gains tax is payable upon the parcel of shares sold pursuant to the orders of 2 December 2005. The best I can do is to make an order that the money held in trust by Messrs Coleman and Greig, after payment of capital gains tax on the sale of these shares, be divided in the overall proportion of the distribution of the net pool of property between the parties.
Capital gains tax will also be payable on the sale of the remaining shares held by the husband. The only evidence of the amount is his own calculation of $13,446. He has qualifications and experience as an accountant and, for that reason, I will accept this evidence. I will include as a liability $13,446 on account of capital gains tax payable upon the liquidation of the husband’s existing share portfolio.
The sum of $7,596 held by Coleman and Greig should not be included as an asset, nor should that amount of capital gains tax be included as a liability. The capital gains tax payable on the sale of the relevant shares is unknown, as is the ultimate balance held on trust by the solicitors.
I was not informed by counsel for the wife as to what exactly was the dispute about the husband’s Visa Card debt. His evidence was that he had a credit card debt of $4,870 at the date of separation, which he has since reduced to $1,044. It is probable that he has used his credit card since separation but, clearly, he had a larger debt at that time. I will include the husband’s Visa Card debt in the list of liabilities.
The remaining issue as to liabilities is the husband’s alleged debt to his mother for unpaid board. There is a conflict between his evidence and that of the husband’s mother. The husband said that he has paid $100 per week since January 2007 and that he owes about $9,700 to his mother. The husband’s mother said in her affidavit sworn 8 January 2007 that he then owed about $6,000 and that he had paid only spasmodic small amounts since early 2005. In her oral evidence, however, the husband’s mother said that the husband started paying $100 per week in February 2005 and that he has since given her cash each week.
It may well have been that the husband’s mother was confused while giving her oral evidence. I fully expect that she was very uncomfortable in the witness box, at the age of 75. Objectively, however, it is difficult to reconcile her evidence as to the outstanding balance with that of the husband.
Neither the husband nor his mother suggested that they kept a record of any kind as to his payments of board. At best, their evidence relies on memory only and obviously, one of their recollections must be inaccurate.
In my view, the evidence does not justify a finding that the husband has a debt to his mother for unpaid board. Certainly, the conflicting evidence makes any finding as to quantum unsafe. I will take into account as a section 75(2) factor, however, that the husband feels morally obliged to make recompense to his mother for over two years of accommodation in her home.
I find the liabilities of the parties to be as follows:
1.
St George Bank mortgage
$480,000
2.
National Australia Bank mortgage
$144,000
3.
Husband’s Debt to his Brother
$1,581.
4.
Husband’s Visa Card debt
$1,044
5.
Capital Gains Tax on sale of the Existing Shares
$13.446
TOTAL
$626,625
Contributions of the Parties
The applicant, the wife, submitted that there should be finding of contribution as to 52.5% in her favour and 47.5% to the husband. She relied upon:
· her “major” contribution as a homemaker and parent, in circumstances where the eldest son has significant medical problems and the child has learning disabilities
· a financial contribution of her income earned while she was carrying out this significant homemaker and parent role
· her post-separation care of the children
It was also part of the wife’s case that the husband’s initial contribution should carry no weight. It was said that the husband led no evidence as to “what if anything that contribution was” and “there mere assertion that he owned property at the beginning the marriage is not, without more, proof of a contribution”.
To some extent, these submissions do not sit comfortably with the evidence adduced in the case for the wife. She conceded that the husband purchased land at K prior to meeting her, at a price of $32,000. She conceded, further, that the sale proceeds were contributed by him to the purchase of the B property and the construction of their first matrimonial home. The only evidence as to the amount of the sale proceeds was that of the husband, who said that he received $38,000. I have no reason to doubt that he received this amount and contributed the money to acquisition of the B property.
The husband also contributed a retrenchment payment of $20,000 to the acquisition of the B property. He received this money in 1983, thus the retrenchment benefit must have accrued before the commencement of the parties’ relationship.
The husband also had 321 National Australia Bank shares and a superannuation benefit as at the date of marriage. There was no evidence as to the value of these shares and no documentation to corroborate the husband’s assertion that his superannuation was worth $85,000. He had joined the workforce in 1974 and been employed as a public servant for 10 years at the date of the marriage. I regard it as likely that he had accrued a reasonably substantial superannuation benefit by 1984.
Each of the parties had savings at the date of marriage, being $5,000 in the case of the husband and $7,000 for the wife. I accept her evidence that the parties received a first home buyers’ grant of $7,000, in the name of the husband because he was the sole registered proprietor of the B property.
To some extent, the parties adopted traditional roles of major breadwinner and homemaker and parent during the marriage. The wife worked outside the family when she could, subject to her responsibilities as homemaker and parent. The husband was an enthusiastic and involved father, particularly when the eldest son and the middle son were babies and young children, subject to the demands of his study for a degree.
The husband paid substantial amounts by way of spouse maintenance and mortgage instalments after the date of separation. At the same time, he received all of the rent for the W property and the benefit of a negative gearing tax arrangement.
Some attempt was made on behalf of the wife to suggest that the husband should in some way be penalised for the increase in the National Australia Bank mortgage from approximately $135,000 at the date of separation to $144,000 at the date of hearing. The husband’s evidence was that he paid what he could in respect of this mortgage, which is a redraw account. It is not my view that any penalty should flow to him for this increase in the payout figure. The orders of 2 December 2005 placed substantial financial obligations on him.
I do not consider that the evidence warrants a finding that the parties were able to save $80,000 while they lived with the husband’s mother. However, it is obvious that a significant financial benefit flowed to them from rent-free accommodation for 2½ years. This generosity on the part of the husband’s mother must have assisted the parties in the acquisition of the P property.
The husband submitted that there should be a finding of contribution as to 57.5% in his favour and 42.5% to the wife. He relied on:
· his initial contributions
· rent-free accommodation in the home of his mother for two and a half years
· his post-separation contributions
I have already considered these contributions, which must carry significant weight. It is a question of weighing these contributions against those made by the wife over the 20 years of the marriage and during the post-separation period.
The wife had primary responsibility for the care of the children and the running of the household. The eldest son’s serious eczema, and consequent psychological problems, must have made this role somewhat onerous. She worked outside the family whenever she could and contributed her income to the household. She had a significant involvement in the construction of the P property.
I am not persuaded that the contributions of one party outweigh those of the other, on an overall basis. Their joint endeavours over 20 years enabled them to build up the pool of property. Theirs was a long marriage, during which they cooperated with each other and fulfilled various responsibilities as best they could. I find the contributions of the parties to be equal as at the date of separation and of hearing.
SECTION 75(2) FACTORS
I have considered carefully all of the factors set out in section 75(2) but I will only refer to those matters which appear to me to be relevant to the present dispute.
The wife maintained that she should receive an adjustment of 10%. Husband conceded that the section 75 factors favoured the wife and submitted that an adjustment of 5% was appropriate.
It is clear that the husband’s income earning capacity is significantly superior to that of the wife. He earns a salary of approximately $1,600 gross per week and has a company car. The wife earns $417 gross per week from her employment at a Medical Centre. Otherwise her income consists of substantial child support from the husband and government parenting payments. It should be remembered that the husband obtained a tertiary qualification during the course of the marriage, at a time when he had the assistance of the wife in maintaining the household and caring for the children.
I am not persuaded that the wife and Mr S intend to cohabit in the future, nor that there is any present intermingling at all of their financial affairs. The evidence simply does not warrant any such finding.
Pursuant to the parenting orders which I will make, the child is likely to spend more time with his mother than with his father. It is hard to predict what choices he and the middle son may make in the future as to where they will live. It may be that they will both choose to spend more time with the husband once he establishes a household independently of his mother.
Each of the parties sought a splitting order in relation to the husband’s superannuation benefits. These benefits will be inaccessible to both of them for several years.
The principal section 75(2) factors which favour the wife are the husband’s superior capacity to earn income and her responsibility to care for the child for more time than will his father. I also have regard to the husband’s moral obligation toward his mother. At the same time, it is clear that he is far more able to re-establish himself financially than is the wife.
I am comfortably satisfied that an adjustment in favour of the wife is warranted, on account of section 75(2) factors. It would be of little utility to her to make such an adjustment in terms of her entitlement to the superannuation assets. She has a present need for liquid funds, in order to purchase a home. I find that the wife should receive an additional 10% of the net non-superannuation assets on account of section 75(2) factors.
RESULT
The result is that I find that the net pool of non-superannuation assets should be divided as to 60% to the wife and 40% to the husband. The superannuation assets should be divided equally, by way of a splitting order in favour of the wife.
No submission was put to me as to how I should deal with the parties’ household contents. The wife sought an order for division between the parties on a ‘two list’ basis but advance no evidence or submission as to why I should adopt this course. The husband’s case was silent as to these chattels. As these items have now been in the possession of the wife for over two years, I will treat them as part of her entitlement.
Neither party made a submission as to who should take the AMP policy or the Macquarie Bank investment. I have to select one of them to receive these assets and it will be the husband. There is no magic in this choice.
On this basis the distribution of property between the parties is as follows, on an approximate basis because the costs of sale of the P property are as yet unknown:
Non Superannuation
Assets total
$1,618,714
Liabilities total
$640,071
Net Pool
$978,670
60% equals $587,202
40% equals $391,468
The husband will take:
1. W property
$566,500
2. Shares
$125,970
3. NAB account
$500
4. Magna sale proceeds
$2,000
5. Macquarie Bank account
$336
6. AMP Policy
$2,532
$697,838
Less Liabilities
1. Debt to his brother
$1,581
2. St George Bank mortgage
$480,000
3. Capital gains tax on sale of shares
$13,446
4. Visacard debt
$1,044
$496,071
which leaves him with net non-superannuation assets of $201,767. He thus requires $189,701 from the proceeds of sale of the P property to bring up his entitlement of 40% of the net non-superannuation pool. This figure is a guide only, as the selling costs of the property are unknown.
The wife would take:
1. Proceeds of sale of shares
$50,747
2. Household contents
$8,000
3. Commonwealth Bank Account
$2,156
$60,903
which falls short by $526,299 of her entitlement of 60% of the net non-superannuation assets.
These figures are also rendered imprecise because of the issue of what capital gains tax is actually payable on the shares sold 2005/2006. I have done these calculations only to assist in determining whether the overall outcome can be considered just and equitable.
To achieve an equal division of the superannuation assets, there will need to be a splitting order in an amount of $159,132 in respect of the husbands A Superannuation benefit. The effect of this order will be to leave each of the parties with superannuation benefits to a total value of $172,580.
The result of these orders will be that the husband will have a heavily encumbered apartment property and potential liquid funds of around $200,000. He will have superannuation benefits totalling about $172,500 and the opportunity to build on this balance. He will be obliged to furnish the W apartment.
The wife will have liquid funds of around $540,000 to $550,000, having regard to her evidence that she retains some $22,000 from the proceeds of sale of the shares and that she has approximately $2,000 in a bank account. She has the benefit of the furniture and contents of the former matrimonial house. She, too, has superannuation totalling $172,000 or thereabouts. I regard this outcome as just and equitable in all of the circumstances.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson
Associate:
Date: 23 August 2007
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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