Jardine and Jardine
[2015] FCCA 2639
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JARDINE & JARDINE | [2015] FCCA 2639 |
| Catchwords: FAMILY LAW – Parenting and property proceedings. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Bevan & Bevan [2013] FamCAFC 116 Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395 MRR v GR [2010] HCA 4 Stanford & Stanford [2012] HCA 52 |
| Applicant: | MS JARDINE |
| Respondent: | MR JARDINE |
| File Number: | WOC 264 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 19-20 August 2015 |
| Date of Last Submission: | 20 August 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Christie |
| Solicitors for the Applicant: | Hansons Lawyers |
| Counsel for the Respondent: | Mr Blank |
| Solicitors for the Respondent: | Hilton King Lawyers |
ORDERS
Parenting
The Mother have sole parental responsibility for the Children, X born (omitted) 2001 and Y born (omitted) 2004 (“the Children”).
The Children are to live with the Mother.
The Applicant Mother be solely responsible for the long term and day to day care, welfare and development of the children.
X spend time with the Respondent Father as agreed between the parties.
Y spend time with the Respondent Father, unless otherwise agreed, and failing agreement as follows:-
(a)Week One:
During school term, commencing the first week after school holidays conclude each term, from Friday until the commencement of school on the immediately following Monday or 9am in the event it is not a school day or on Tuesday until the commencement of school in the event the Monday is a public holiday, and each alternate week thereafter.
(b)Week Two:
During each school term, commencing in the second week after the school holidays conclude each term, from Thursday 4pm until 8pm and each alternate week thereafter.
(c)On the weekend that includes Father’s Day from 4pm on Friday until the commencement of school on the immediately following Monday or 9am in the event it is not a school day.
(d)At Christmas as follows:
(i)In even numbered years commencing 2014 from 3pm to 9pm on Christmas Day;
(ii)In odd numbered years commencing 2015 from 3pm on Christmas Day until 9pm on Boxing Day.
(e)At Easter in even numbered years commencing 2016 from 12noon on Good Friday until 4pm on Easter Monday.
(f)During the Terms 1, 2 and 3 New South Wales Public School Holiday periods for one week as agreed between the parties and failing agreement in the first week in even numbered years commencing 2016 and the second week in odd numbered years commencing 2015.
(g)During the Term 4 Public School Holiday periods for one week as agreed
(h)between the parties and failing agreement from Monday 9am to Sunday 5pm in the second week however in the event that the Christmas period from 24 December to 26 December falls in the second week the Father will spend time with the children in the third week from Monday 9am to Sunday 5pm and on any other occasion as agreed to between the parties.
The provisions of Order 4 be suspended as follows:
(a)On the weekend that includes Mother’s Day from 4pm on Friday until the commencement of school on the Monday immediately following or 9am;
(b)From 5pm on 6 December until 5pm on 8 December;
(c)From 10am Christmas Eve to 3pm on Christmas Day;
(d)In odd numbered years commencing 2015 from 12noon on Good Friday until 4pm on Easter Monday.
Periodic time in accordance with Orders 4(a) and (b) be suspended during the school holiday period and resume at the conclusion of school holidays and be calculated as if holidays had not intervened.
School holidays be defined as commencing at 9am on the first Monday following the last day of school and concluding at 5.30pm on the Friday before school resumes.
Changeover occurs at the children’s school on school days and at the Mother’s residence on all other occasions.
The Mother be permitted to obtain Passports for the children without the consent or signature of the Father.
Neither party denigrate the other party, their family or any other person with whom they may live within the presence or hearing of the children or any of them and shall immediately remove the children from any other person who does so.
Property
Within 56 days of the making of these Orders (“the due date”), the Father pay the Mother the sum of $375,000.00.
If the Father shall fail to pay the amount as set out in above Order 12 within 42 days of the date of these Orders he shall, in addition thereto, pay interest on such sum as may be outstanding at the rate specified in the Family Law Rules 2004, as varied from time to time and calculated on a daily basis from the due date for payment until the actual date of payment.
Contemporaneously with Order 12, the Mother do all things necessary and sign all necessary documents to cause her interest in the property at Property S and being the whole of the land comprised in title reference (omitted) (“the Home”) to be transferred to the Father.
In the event the Father fails or neglects to pay to the Mother the said sum of $375,000.00 together with interest thereon as provided in Order 12 and 13 above within 56 days from the date of these Orders, then in that event, the both parties take all necessary steps and execute all necessary documents to cause the property situated at Property S and being the whole of the land comprised in title reference (omitted) (“the Home”) to be sold by private treaty at the earliest possible date at a price to be agreed on between the parties, and failing such agreement to be determined by the proper officer of the Real Estate Institute or their nominee and that the proceeds of the sale be disbursed as follows:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b)Payment of any money due and owing to the mortgagee, (omitted) Bank;
(c)In discharge of any outstanding Council and Water rates;
(d)In payment of 60% of the balance remaining to the Mother;
(e)In payment of $3,770 towards the Mother's (omitted) credit account;
(f)In payment of the sum of $5,000 owing to the Mother’s mother, Ms K's Estate;
(g)In payment of the balance then remaining to the Father.
On or before completion of the sale of the property, the party residing therein will provide vacant possession, remove all items not included in the sale and ensure that the property is left in a clean and tidy condition.
Within 7 days of the making of these Orders, the Father return to the Mother the keys to the Toyota Yaris.
In the event that the Father is unable to locate the keys referred to in Order 16 above, then he is to pay to the Mother the balance to replace the cost of a replacement key within 7 days of receipt of a copy of the invoice from the Mother for the cost of same.
Except as otherwise set out in these Orders, the parties have the sole right, title and interest in any other property which is, at the date hereof, in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
Except as provided in these Orders, each party retain all their right title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.
In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the court be appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
NOTATION
That notwithstanding the provisions of Order 3 herein, the Mother will endeavour to consult with the Father on matters pertaining to the children that are of a long term nature, including matters with respect to the children’s health, education and religion and to keep him advise din relation to any such decisions made by her.
IT IS NOTED that publication of this judgment under the pseudonym Jardine & Jardine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 264 of 2013
| MS JARDINE |
Applicant
And
| MR JARDINE |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the Orders that the Court has made in a dispute between two parents about how they should divide up their property and what parenting orders should be made in relation to their youngest children. The children in question are X, who is 14, and Y, who is 11.
The issues in dispute between the parents narrowed considerably during the course of the litigation. In these reasons, the focus will be on the orders sought by each parent as at the end of the hearing. It may be necessary to refer to their earlier proposals, but that will be by way of background only.
The Court recognises that litigation between parents can be particularly damaging, both in the short term and long term, for the parents themselves but also their children. In these reasons for judgment the Court will do its best to mitigate the potential adverse impact on both parents and their children of the Court’s decision. The Court will adopt a deliberately minimalist approach in referring to events during the relationship of the parents and since separation, which otherwise need to be referred to in order to explain the reasons for making the Orders. The parties to this litigation know very well about the events that will be referred to, but this Court sees no reason for the details of these events to be published, even in anonymised form.
Background
The Applicant Father is 58 years old and he is a (occupation omitted). The Respondent Mother is 53 years old and is a (occupation omitted). They both live in the (omitted) region of New South Wales. In fact, at the moment, they live just a few doors away from each other.
The parents commenced cohabitation in 1987, married in 1988 and separated in 2012 after a relationship that subsisted almost 25 years. They have five children: three girls, aged 26, 24 and 22; and two boys, aged 14 and 10. It is common ground that the Father has no relationship with the three older children, has a tenuous relationship with X, but has a very good relationship with Y. In relation to X, for example, both parents agree that he should spend time with his father in accordance with his own views and as agreed between the parents.
The parents have diametrically opposed views about why the Father has lost his relationship, in effect, with his four oldest children. The Mother says that the Father has become estranged from his own children as a result of his own conduct. The Father, however, is convinced in his own mind that the Mother has caused these children to be alienated from him. The determination of this issue is not pertinent to the matters before the Court.
The ambit of the dispute in relation to Y, and, to a lesser extent, X, is actually quite narrow. The Father seeks an order for equal shared parental responsibility for the children but the Mother seeks an order for sole parental responsibility. In relation to Y, both parents agree that he should spend time with his father from after school each alternate Friday to Monday morning. The Father proposes that, in addition, each alternate Wednesday he spend time with Y from after school until before school the following day. The Mother proposes that Y spend time with his father on the alternate Thursday from 4:00pm until 8:00pm. The issue is a narrow one but very important to the parents and the children.
It is common ground between the parents that their relationship was a tumultuous one. Looking back, they each have very different perspectives on the problems that they experienced and the reasons why. Unless it is absolutely necessary, in these reasons the Court proposes to avoid what would only be a most undignified traversal of the conduct of both parents.
The property dispute between the parents is also of narrow ambit. The Mother would like the Father to pay her $375,000 in return for a transfer to him of her interest in the former matrimonial home. He proposes to pay her $320,000 in this regard. In very simple terms, they each otherwise propose that they keep what they have, including their superannuation entitlements which are not insubstantial but which have almost the same value. In deciding the property aspect of the claim, the Court will need to assess contribution and future needs, after dealing with some balance sheet issues.
The evidence
Dr R was the single joint expert appointed under Part 15 of the Federal Circuit Court Rules 2001. Her Report dated 2 May 2014 was released to the parties shortly after that date. She gave evidence on the first day of the hearing. Briefly stated, her recommendations were that both boys live with their mother, that she have sole parental responsibility, that Y have contact with the Father each alternate weekend from Friday afternoon until Monday morning and, in addition, that Y spends time with his father for one week in every school holiday. In relation to X, Dr R recommended that he choose whether, and if so when, to spend time with his father. Dr R was cross-examined. Where it is necessary and relevant, aspects of Dr R's Report will be discussed in these reasons for judgment. It is obvious, however, that both the proposals put by the parents to the Court are not inconsistent with Dr R's Report in any substantial way.
In the Father’s case, he relied on his Affidavits filed 5 December 2014 and 16 August 2015. The Father also relied on a sworn Financial Statement that was filed on 2 December 2014. Evidence in the Father’s case was given by his brother, Mr M, by way of an Affidavit filed 2 December 2014. In addition, the Father’s mother, Ms P, filed an Affidavit on 2 December 2014. She was not required to give evidence. The Father was extensively cross-examined. The Father’s brother was briefly cross-examined.
In the Mother’s case, reliance was place on her Affidavits filed 5 August 2015 and 1 December 2014. She relied on a Financial Statement filed on 5 August 2015. The only other witness in the Mother’s case was Ms E, the oldest child of the parents. She swore an Affidavit on 1 December 2014. The Mother was extensively cross-examined but Ms E was not required for cross-examination.
Overview of reasons for judgment
The first part of these reasons for judgment will focus on the parenting issues. The applicable law will be set out. The evidence will then be examined by reference to a number of headings that are consistent with the applicable law. As the issue of parental responsibility is in dispute, that will be the first topic. Thereafter, there will be a consideration of the relevant matters under s.60CC of the Family Law Act 1975 (hereafter referred to as ‘the Act’). There will then be a discussion about the orders that are in the best interests of X and Y.
The second part of these reasons will deal with the property dispute. After setting out some background, the Court will set out the agreed balance sheet and examine and then determine the issues arising from that. There will then be a discussion about assessment of contribution, assessment of future needs and then a discussion about the formulation of an order that is just and equitable in all the circumstances.
The Applicable law
In determining parenting matters under Part VII of the 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.
Family violence is defined by s.4AB of the Act as follows:
Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
At the very core of Part VII of the Act 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, the Court is 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 the Court must then go back to consider s.60CC which specifies how the Court must determine 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).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(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 extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"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." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(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."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
This is also an Application under s.79 of the Act which relevantly provides:
Alteration of property interests
(1) In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4) incorporates the provisions contained in s.75(2) of the Act, which states:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:
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.
The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case, the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.
Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. This is not inconsistent with step one in Hickey. A problem that commonly arises, and indeed does arise in this case, relates to property that once existed but no longer does. It is no longer appropriate to notionally “add-back” this property. This disposed of property may still be significant, however, and needs to be considered as part of the history of the marriage, as well as a s.75(2)(o) consideration. As the Full Court said in Bevan, such disposals must be dealt with carefully. In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible, and then assessing its weight whilst neither placing too much, or too little, weight on it. Maintaining jurisprudential rigour, transparency and accountability may well be challenging in the era post the demise of the traditional add-back.
Parenting application
Parental responsibility
The Father proposed equal shared parental responsibility; the Mother proposed sole parental responsibility. The Mother argued through her Counsel, Ms Christie, that the statutory presumption of equal shared parental responsibility set out in s.61DA of the Act, firstly, did not apply because there had been family violence and/or secondly was, in any event, rebutted because the evidence satisfied the Court that it was not in the best interests of the children for the parents to have equal shared parental responsibility. As it turns out, the Court accepts the argument made on behalf of the Mother, and will make an order for sole parental responsibility. The following brief reasons will explain why.
The Court is satisfied that there was family violence during the relationship that was perpetrated by the Father. Moreover, the Court is satisfied that the children have been exposed to family violence. The definition of “family violence” in s. 4AB of the Act has been set out earlier in these reasons. The evidence satisfies the Court that, at various times during the relationship, the Father:
(a)assaulted the Mother by physically pushing her, forcibly dragging her;
(b)physically assaulted his daughter, Z;
(c)physically assaulted X;
(d)engaged in repeated derogatory taunts of the Mother;
(e)threatened the Mother verbally or by electronic communication.
Moreover, the evidence demonstrates that, when the Father perpetrated the above acts, the children either overheard his threats or derogatory taunts, or saw or heard the assaults, or were certainly exposed to the aftermath.
Most of these findings can be made on the basis of admissions that the Father made in cross-examination. For example, he admitted that on 18 August 2012 he sent the Mother a text message:
I could never love a person like U. I feel sorry for U. U are pure evil. No wonder U are a nervous wreck. I hope you rot in hell. I wish your suicide attempt had been successful. Or was that just a scam as well?? God help our children and may he have mercy on your soul.
The Court is satisfied that this text message is threatening and derogatory and would reasonably have caused the Mother to be fearful, as she asserts. Indeed, the Mother’s evidence is that she found these messages “extremely distressing” (paragraph 33, Affidavit of 1 December 2014).
In cross-examination the Father agreed that there was one time when he did wish her dead, in the sense that he wished that her attempt at suicide had been successful.
In cross-examination, the Father agreed that, on 19 August 2012, he rang the Mother 19 times on her mobile phone. The Court is satisfied that, in the circumstances of this case, this too was family violence as defined, being “other behaviour by a person” that caused the Mother to be fearful.
Other behaviour that the Court is satisfied constitutes family violence as described in the preceding paragraph involves the document that became exhibit A2. The Father agreed this is a document in his writing. The Mother’s evidence about this is set out at paragraph 24 of her Affidavit of 1 December 2014. The Court accepts her evidence about this. Indeed, she was not cross-examined about it. She deposes that the Father had written a list about her that he demanded she read to the children. It is not in contention that the list in question is comprised in the document being exhibit A2. She refused to do so. The Father agrees he read the list out to the children. The Mother describes this list as including “what Mr Jardine considered to be my negative points, including that I lost my virginity at 14 years old, that I had anorexia and bulimia, and that he thought I was sexually interested in a neighbours’ husband”. The Mother’s description of exhibit A2 is correct. The Father agreed that X and some of the other children were there. He asked the children to come into the room. He read it out. Looking back on it, he agrees that he is not proud about doing this. Quite apart from the impact on the children who were present, the Court is satisfied that, at the very least, this was a derogatory taunt for the purposes of s.4AB(2).
The Court has had regard to the Father’s own evidence about an incident on 23 June 2012 involving the Mother and both boys at a motel in (omitted). The Court is satisfied that the Father’s own evidence at paragraphs 38 and 39, together with his cross-examination about these events, demonstrates that he assaulted both X and the Mother.
The Court is satisfied that similar findings, and on the same basis, flow from the Father’s own evidence at paragraphs 58–61 of his Affidavit of 2 December 2014. The Father assaulted Z by pulling her hair. The Court does not accept his version that his “fingers became entangled in her hair”. Even he admits, at paragraph 61, that he “didn’t let go immediately”.
The Court wishes to restate that it prefers to adopt a minimalist approach to these reasons for judgment in an attempt to preserve the dignity of the parents and of the children. It would be possible to make many more findings about the family violence, as defined in the Act, perpetrated by the Father against the Mother. Putting aside what amounts to be the Father’s own admissions, there is what can only be described as the damning evidence of his daughter, Ms E, in her Affidavit of 1 December 2014. She was not required for cross-examination. The Court, therefore, accepts her evidence. Furthermore, there is material in the Single Joint Expert Report of Dr R, which would again strongly support a finding of family violence. The Court finds there are reasonable grounds to believe that the Father has engaged in family violence, and thus, the statutory presumption set out in s.61DA does not apply.
Even if the Court were wrong in this regard, the Court is satisfied that s.61DA(4) applies, that is, there is evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. The reasons for this will become apparent from the following sections of this judgment.
Meaningful relationship
The fact is that the Father does not enjoy a meaningful relationship with his son, X. That is common ground. Both parents’ proposals reflect this. Just on this point alone, one would have thought that an order for equal shared parental responsibility in relation to X would not be in his best interests, particularly given his age.
The Father does enjoy a meaningful relationship with his son, Y. Again, both proposals reflect this.
Nature of relationships
Focusing on X, the Father seeks an order that X spends time with him at such times as X wishes and with the Mother to use her best endeavours to facilitate such time. The Mother proposes that X spend time with the father as agreed between the parties. Both Orders reflect the tenuous relationship that exists between X and his father. Both Orders, and Dr R's Report, reflect the reality that X will determine if, when and how he spends time with his father. In the Family Report interviews, the Father certainly demonstrated his skills in seeking to engage with his son. Thus, whilst the relationship might not be a meaningful one, for the time being, there is some hope for the future.
In relation to Y, there is no question the evidence demonstrates that he has a good relationship with his father. This is reflected in Dr R's Report. Given the very narrow issues before the Court in relation to Y’s time with his father, this consideration is not really determinative. There is no doubt from the evidence that both boys enjoy a very strong relationship with their mother. They also enjoy strong relationships with their siblings.
The children’s views
The evidence about X’s views, principally in Dr R's Report, are adequately reflected in the proposals each parent makes about him. The same conclusion pertains to Y. He wants to spend time with his father, and both proposals reflect this.
Extent to which each of the parents has taken, or failed to take, opportunities
An overview of the evidence creates a sad impression of the life of this family, particularly in the post-separation period. The family, in this particular context meaning all of the children and not just the boys, was well and truly on the path to fragmentation by the time of separation. It was undoubtedly a traumatic event for the Mother and the children. Since then the Father probably did not avail himself of every opportunity he had to participate in decision-making about the children and to spend time and communicate with them. He probably could have been far more proactive, particularly in relation to X. The Mother probably could have done far more to include the Father in decision-making. She was clearly adversely affected in an emotional sense by the tumultuous relationship and traumatic separation. The Mother’s evidence suggests that she sought to create opportunities for the Father to become involved in matters pertaining to X in particular, but he either declined or failed to exploit those opportunities.
Having stated these matters, however, this particular consideration is not determinative of the very narrow issue that is before the Court, that is, whether it should be alternate Wednesday nights or alternate Thursday afternoons.
Fulfilment of obligations to maintain
This was not raised as an issue in the Mother’s case. The Father pays weekly child support in the sum of $346 for both X and Y.
The likely effect of any changes in the child’s circumstances
When the Court put it to Dr R that the differences in the parents’ proposals hardly amounted to change of seismic proportion, she agreed in the sense that Y could tolerate the absence from his mother and time with his father. She could see the benefit of changeovers at school. She was concerned, however, about the quality of parenting that Y would get at his father’s home. Her particular concern was his lack of empathy and lack of insight in relation to the children’s’ needs, and that the Father would struggle to meet Y’s emotional needs. All of this, she inferred, would contraindicate an extra overnight.
The Mother strongly opposed the Father’s proposal to convert an afternoon in the alternate week to an overnight. She echoed Dr R’s concerns about the Father’s lack of empathy and insight. The Mother was concerned about the Father’s proposal to return Y to her home before school on Thursday, as creating the opportunity for a problematic changeover.
The focus of this particular consideration in s.60CC(3) is about the likely effect of any changes in the child’s circumstances. The change that the Father proposes is not one that would be a major one for Y, or indeed, for his parents. Ultimately, this consideration is not determinative of the issue.
Issues of practical difficulty and expense
At the present time, there are no issues of practical difficulty and expense. The parents live close to each other. The Mother’s preference is to remain in the home but she acknowledges the possibility that she may not be able to buy out her siblings, who are presently co‑owners with her. There was no evidence to suggest, however, that the Mother would move away, should she have to, in a manner that raises issues of practical difficulty and expense.
Issues of parental capacity to provide for the needs of the children
The Father has consistently raised quite serious issues about the Mother’s capacity to provide for the needs of the children. The proposal that he finally advanced to the Court is quite inconsistent with his stated concerns. In any event, the objective evidence before the Court does not raise issues of concern. The Court accepts that the Mother has shown poor judgment at times. Dr R had no concerns about her parenting capacity.
The concerns raised about the Father’s parenting capacity focus on his lack of empathy and lack of insight. In all other respects, there is no question that he is capable of meeting the children’s physical and intellectual needs. The focus is on his capacity to meet Y’s emotional needs.
At page 32 of Dr R's Report, she says this about the Father’s parenting capacity:
The father:
As a (occupation omitted), the father is very capable of stimulating the children 's love of learning and inquiry. He has worked extra jobs to provide for the family until separation.
From that time on, he has withdrawn all financial assistance to his daughters, taking back their cars, and has made it very difficult for Z to get to uni. He has remained in the matrimonial home.
His emotional understanding of his children is poor. Despite working with teenagers for more than 20 years, (occupation omitted), he uses humiliation and belittling in order to control his children. He has undermined the children's mother 's authority by publicly denigrating her in front of the children.
The older girls hated attending (omitted), they told me. They were not free to choose their elective subjects at school themselves . They disliked having to travel with him in the car every day.
One would expect a (occupation omitted) familiar with adolescents to understand their need for increasing autonomy with age, their wish for independence and to assist with guidance, not coercion.
His lack of understanding of the effect his own angry, aggressive behaviour has had on all four older children is further evidence of his poor emotional sensitivity. All four have seen counsellors for Anxiety and the three older girls expressed their resentment towards him.
In cross-examination, Dr R maintained her evidence. In addition, whilst accepting that she did not formally diagnose the Father as such in her Report, she described him as having narcissistic traits. She described him as lacking empathy, sometimes having unreasonable expectations, and having an expectation of compliance with his directions. She explained that the Father would not be easy to live with.
One of the themes of Dr R’s evidence is that it is impossible to ignore the Father’s fractured relationships with his four older children in the context of the assessments that needed to be made about his relationship with Y. Her observation of the Father was that he had adopted a very authoritarian parenting style with the older children, which had certainly not worked out well for him in terms of his ongoing relationship with them. She noted, however, that Y seemed to tolerate the Father’s authoritarian style quite well and there was no evidence of anxiety found during her assessment.
Perhaps the clearest evidence of the Father’s authoritarian parenting style, lack of insight and lack of empathy is found in the evidence of his daughter, Ms E. This evidence was unchallenged.
The Father’s lack of empathy and insight is clearly demonstrated, in the Court’s opinion, when he read out to the children the litany of complaints he had about their mother, as set out in the document that became exhibit A2. In cross-examination, he was given the golden opportunity to demonstrate his insight and empathy, even after the fact. He was asked a question to the effect, “How might X have experienced that?” His response gives an insight into the issue at hand. He said words to the effect, “I was struggling at this time. I am not proud of this. But I imagine he felt like my 17-year-old felt at her graduation when her mother said I was not her father.” Thus, instead of articulating how X might have felt, he initially focused on himself, almost by way of mitigation, and then sought to deflect by referring to an incident at Z’s graduation, which in any event, he plainly misconstrues. At no stage, even though given the opportunity, did he answer the question, “How might X have experienced that?”
The Father’s lack of empathy, and lack of insight into the children’s’ needs was palpable throughout the evidence. Even in a dispute of such narrow parameters as the present one, it is a significant consideration that contraindicates the extension of time.
Parental attitudes and responsibilities
There is much to be critical about both parents in this regard, but it would be unproductive in the present context of a dispute that can easily be determined by reference to other considerations. The Father complains that the Mother has exaggerated her evidence at times and was manipulative during the relationship and after separation. There is a kernel of truth to the Father’s concerns, but not nearly as great as he believes in his mind. The Mother’s complaints about the Father’s violence, abuse, denigration and controlling behaviour are largely made out. Her concerns about his lack of insight and lack of empathy are also borne out by the evidence. All of these are examples of poor attitudes to children and irresponsible parenthood.
Family violence
As foreshadowed, the Mother’s case about family violence has been established such that there should be an order for sole parental responsibility. The relevance of violence in the present context of determining what time Y should spend with his father is not so much whether Y would be exposed to the risk of harm in his father’s care in a physical sense but, rather, the potential risk of psychological harm from spending time with a person who has perpetrated violence which could probably be characterised as coercive and controlling. In this regard, the Mother’s concern is that the Father would become a very bad role model for his son. There is a risk of this. The risk can be managed by not extending the Father’s time with Y.
Making Orders that are least likely to be the subject of further proceedings
The Court acknowledges the risk of further proceedings if the Father loses his relationship with Y. This is a risk for Y because of who his father is, his authoritarian style of parenting, his lack of empathy and insight. As Y individuates, the risk of conflict between the Father and himself increases, and the issue of authoritarian parenting may well become a focal point, indeed as it did with the other children. Ultimately, Y may well decide for himself. The Court will have to deal with such matters as they arise in the future.
Orders in the best interests of the children
Whilst the Court has very carefully considered the Father’s proposal for extra time with his son in the alternate week, ultimately, the Court has decided that there should be no extension of time, for the reasons that have been set out above. The Orders proposed by the Mother in relation to X and Y are consistent with the Court’s assessment of what is in their best interests, and thus Orders will be made in those terms.
Alteration of property interests
Introduction
By the time of closing submissions, the issues in dispute had narrowed considerably. On behalf of the Mother, it was submitted the contribution would be assessed equally, but that there would be an adjustment under s.75(2) in her favour of just over 7 per cent, resulting in an approximate 57/43 split in her favour. The Father’s proposal would also result in an adjustment in the Mother’s favour. This part of the case did not attract much evidence in cross-examination. It is possible that each party presented their proposals on the basis of different interpretations of the balance sheet. It is quite likely that the Orders that the Father sought for property settlement as at submissions, that is, payment to the Mother of $320,000, represented a compromise rather than any principled approach to a property settlement.
Whilst the parents are to be commended for their very pragmatic approach in relation to this litigation, especially the property settlement, the Court must, nonetheless, undertake the assessment exercise consistent with law. The balance sheet will need to be established. Contribution will need to be assessed. Likewise, any future needs factors under s.75(2). A just and equitable order will then have to be made.
Balance sheet issues
The Court was presented with the following agreed balance sheet by the time the evidence closed.
| Ownership | Description | Wife / de facto partner’s value | Husband / de facto partner’s value | ||
| ASSETS | |||||
| 1. | J | Property S | $ 660,000 | $ 660,000 | |
| 2. | J | Toyota Prius | $ 6,950 | $ 6,950 | |
| 3. | W | Household contents – in wife’s possession | $ 7,500 | $ 7,500 | |
| 4. | H | Household contents – in husband’s possession | $ 7,500 | $ 7,500 | |
| 5. | H | Mazda | $ 11,760 | $ 11,760 | |
| 6. | W | Toyota Yaris | $ 8,450 | $ 8,450 | |
| 7. | W | Toyota RAV 4 | $ 30,000 | $ 30,000 | |
| 8. | W | (omitted) Bank account | $ 11,016 | $ 11,016 | |
| 9. | W | (omitted) Bank account | $ 1,026 | $ 1,026 | |
| 10. | H | (omitted) Bank - (omitted) saver | $ | $ 7,300 | |
| 11. | H | (omitted) Bank account | $ | $ 500 | |
| 12. | W | Interest in the estate of Ms K | $ 158,500 | $ 158,500 | |
| Total | $ 902,702 | $ 910,502 | |||
| ADDBACKS | ||||
| 13 | H | Savings expended by husband | $ 34,000 | $ 0 |
| Total | $ 34,000 | $ 0 |
| LIABILITIES | ||||
| 14 | W | Loan from Ms K | $ nil | $ nil |
| 15 | W | (omitted) Credit Line | $ nil | $ nil |
| 16 | W | (omitted) Bank Mastercard | $ 300 | $ nil |
| 17 | W | (omitted) Bank credit Card | $ 700 | $ nil |
| 18 | W | (omitted) school | $ 2,831 | $ 2,831 |
| 18A | W | (omitted) Bank Visa | $ 3,250 | $ 3,250 |
| 18B | W | (omitted) Bank Visa | $ 2,650 | $ 2,650 |
| Total | $ 9,731 | $ 8,731 |
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Wife / de facto partner’s value | Husband / de facto partner’s value | |
| 19 | W | (omitted) Super | Defined benefit | $ 446,475 | $446,475 |
| 20 | W | (omitted) Super | Defined benefit | $ included above | $ included above |
| 21 | H | (omitted) Superannuation Fund | Accumulation | $ 346,778 | $ 346,778 |
| 22 | H | (omitted) Super Fund (omitted) | Accumulation | $ 95,283 | $ 95,283 |
| Total | $ E 888,536 | $ E 888,536 |
| FINANCIAL RESOURCES | |||
| Owner | Description | Wife / de facto partner’s value | Husband / de facto partner’s value |
| Total | $ 0 | $ 0 |
As a result of sensible concessions made by Counsel at the hearing, there are, in fact, very few contentious issues. The first observation that the Court makes is that item 12 includes in the balance sheet the inheritance the Mother received, even though this was after separation. This was appropriate on the facts of this case, and indeed simplifies the assessment process. The next point to observe is that the superannuation entitlements of both parents are about the same. Neither sought an order for a superannuation split. Again, that is appropriate on the facts of this case. The superannuation still needs to be taken into account, of course, in the overall assessment process.
The most significant issue appears, therefore, to be item 13. The Mother contends that savings expended by the Father, totalling $34,000, should be added back into the balance sheet. In reality, there was only faint resistance to this. The evidence is quite clear. Shortly after separation, the Father took $44,000 from a joint account. In cross-examination he explained that he used $10,000 of this for a trip to the (country omitted) and at least $13,129 on his legal fees. It is conceded that the Father paid Dr R’s fees in relation to the single joint Expert’s Report. On the facts, it is hard to resist the conclusion that, apart from the expenditure on Dr R, the balance of the $44,000 represents a premature distribution of assets that belong to both parties, and not just the Father. It is appropriate to notionally add a sum of $34,000 back. It would be artificial in the extreme, and probably harder to do justice and equity to the Mother, to somehow treat this as a contribution factor or a s.75(2)(o) factor. In circumstances where there was such little resistance to the notion of adding it back as is proposed, that is what the Court will do.
There was an issue about whether the Mother’s credit card liabilities should form part of the balance sheet. On balance, the Court concludes that it should. To the extent that the evidence was tested, it suggests that the liabilities in question were joint liabilities pertaining to the family as at the date of separation.
The balance sheet for the purposes of this case will, therefore, be as follows.
| ASSETS | |||
| Ownership | Description | Court’s value | |
| 1 | J | Property S | $660,000 |
| 2 | J | Toyota Prius | $6,950 |
| 3 | W | Household contents – in Wife’s possession | $7,500 |
| 4 | H | Household contents – in Husband’s possession | $7,500 |
| 5 | H | Mazda | $11,760 |
| 6 | W | Toyota Yaris | $8,450 |
| 7 | W | Toyota Rav 4 | $30,000 |
| 8 | W | (omitted) Bank account | $11,016 |
| 9 | W | (omitted) Bank account | $1,026 |
| 10 | H | (omitted) Bank account | $7,300 |
| 11 | H | (omitted) Bank account | $500 |
| 12 | W | interest in the estate of Ms K | $158,500 |
| TOTAL | $910,502 | ||
| ADDBACKS | |||
| Ownership | Description | Value | |
| 13 | H | savings expended by Husband | $34,000 |
| TOTAL | $34,000 | ||
| TOTAL ASSETS | $944,502 | ||
| LIABILITIES | |||
| Ownership | Description | Value | |
| 14 | W | loan from Ms K | nil |
| 15 | W | (omitted) line of credit | nil |
| 16 | W | (omitted) Bank Mastercard | $300 |
| 17 | W | (omitted) Bank Credit Card | $700 |
| 18 | W | (omitted) School | $2,831 |
| 19 | W | (omitted) Bank Visa Card | $3,250 |
| 20 | W | (omitted) Bank Visa Card | $2,650 |
| TOTAL | $9,731 | ||
| TOTAL NET ASSETS | $934,771 | ||
| SUPERANNUATION | ||||
| Ownership | Description | Value | ||
| 21 | W | (omitted) Super | defined benefit | $446,475 |
| 22 | W | (omitted) Super – (omitted) | defined benefit | (included in 21 above) |
| 23 | H | (omitted) Superannuation Fund | accumulation | $346,778 |
| 24 | H | (omitted) Super Fund (omitted) | accumulation | $95,283 |
| TOTAL | $888,536 | |||
| TOTAL | |
| TOTAL NET ASSETS | $1,823,307 |
| NON-SUPERANNUATION ASSETS | $934,771 |
| SUPERANNUATION | $888,536 |
Assessment of contribution
This is a long marriage. In substance, each parent came into the relationship with minimal assets, and such assets were applied towards the purchase of property. They initially purchased land at Property F, then a home at Property B, and then an investment property in Property G. The land at Property F was sold and another property at (omitted) purchased. They purchased land in Property S, sold one of the Property B properties and built what is the former matrimonial home on the land at Property S.
Each parent worked hard in their respective capacities. The Father was the main breadwinner, the Mother worked but was also primarily responsible for parenting and homemaking.
Each of the parents were fortunate to have been assisted through the generosity of other family members. Thus, early in the relationship, the Father’s mother gave him $20,000 to reduce their mortgage. In 2004, the Father inherited from the estate of his late aunt, $212,000 which was applied to the mortgage and for the benefit of the parties. In 2011, the Father’s aunt gave him $10,000. In 2013, the Mother’s mother provided her with a Toyota Rav4 motor vehicle at a cost of about $42,000. In 2014, the Mother inherited from the estate of her late mother, and the agreed value of that is $158,500.
After such a long relationship and period of time, the Court considers it appropriate to adopt a broad brush approach to the assessment of contribution. Even if, in a mathematical sense, the total value of the contribution that the Father made as a result of his gifts and inheritances exceeds the value of the contributions the Mother made through her gifts and inheritances, the Court must have regard to the diverse contributions that each party made over the entire period of their relationship.
When one has regard to the evidence in its totality, even in this tumultuous relationship, it is impossible to find anything other than an equality of contribution, both financial and non-financial, both direct and indirect, as at the date of the hearing.
The Court acknowledges that there is a potential argument on behalf of the Father that an assessment of the quality of contribution as at the date of the hearing should not apply to the superannuation assets because, he asserts, and it was not otherwise contended, that his superannuation increased significantly in the post-separation period. The Mother contends, expressly or certainly inferentially, that if the Court takes this into account, it must also take into account the fact that the Father remained in occupation of the former matrimonial home after separation, in circumstances where the Mother submits, and the Court in fact concludes that, directly or indirectly, and certainly by his actions, he left the Mother no choice but to leave the home with the children. The Mother’s contribution, therefore, as homemaker and parent, took on another dimension after separation.
Even having regard to the above, the Court concludes that its assessment of equality of contribution should apply to both superannuation and non-superannuation assets.
Assessment of special needs
In the Father’s Case Outline document filed 18 August 2015, the concession is made on his behalf that the s.75(2) factors favour the Mother. This submission was made on the basis that he would have equal shared care of the child, Y. He conceded that the Mother had diminished earning capacity but an unquantified workers’ compensation claim. It was acknowledged, at least implicitly, that he had a higher earning capacity, but it was submitted that this was for a limited period only, given his age. Doing the best the Court can to understand the Case Outline, he seems to have conceded that, if contribution had been assessed in his favour at 52.5 per cent, and the Mother’s favour at 47.5 per cent, the s.75(2) adjustment would result in an outcome of 55 per cent to the Mother, but excluding the superannuation pool.
The Court prefers to apply any s.75(2) adjustment to all assets, both superannuation and non-superannuation. It seems artificial to do otherwise.
The Father, in his outline of argument, and indeed in his Counsel’s closing submissions, appeared to continue to accept that the s.75(2) factors worked in favour of the Mother, a result that must follow given that she would have the main caring responsibilities for the children. Moreover, the Father’s income of $1,723.50 is significantly greater than the Mother’s at $1,389 weekly. In any event, the principal matter that calls for adjustment is that, even though the Mother is working, albeit currently on workers’ compensation benefits, she still is responsible for the care of the children, though it should be acknowledged the Father does pay child support.
Counsel for the Mother submitted that there would be an adjustment in her client’s favour so that the overall conclusion was 57.35 per cent. One suspects the percentage may have been tailored to reflect the outcome that the Mother sought, that is, a payment of $375,000.
Whatever the rationale for the figures advanced by either party, the Court assesses s.75(2) considerations to favour the Mother and considers that 7.5 per cent is appropriate in the circumstances.
A just and equitable order
Having regard to the Court’s assessment of contribution and future needs discussed above, the Court considers that a final adjustment of 57.5 per cent in favour of the Mother, and 42.5 per cent in favour of the Father, is just and equitable. When that conclusion is applied to the asset pool, the following result becomes apparent:
Net asset pool $1,823,307
Mother$1,048,401.50
Father$774,905.50 (with rounding)
Assets available to the Mother comprise:
ASSETS
Ownership Description Court’s value 3 W Household contents – in Wife’s possession $7,500 6 W Toyota Yaris $8,450 7 W Toyota Rav 4 $30,000 8 W (omitted) Bank account $11,016 9 W (omitted) Bank account $1,026 12 W interest in the estate of Ms K $158,500 16 W (omitted) Bank Mastercard ($300) 17 W (omitted) Bank Credit Card ($700) 18 W (omitted) School ($2,831) 19 W (omitted) Bank Visa Card ($3,250) 20 W (omitted) Bank Visa Card ($2,650) 21 W (omitted) Super – (omitted) (defined benefit) $446,475 TOTAL $653,236 SHORTFALL $395,165.50
As the Mother only sought payment of $375,000, that is the Order that the Court will make. The difference is only about 1 per cent on the Court’s estimation.
As noted earlier in these reasons, the differences between the parties was not significant. This is reflected in the Orders they proposed, which share great commonality. The Orders the Mother proposes are more comprehensive, so the Court will adopt those Orders. Having regard to the time of year, however, 42 days to pay may be difficult, so this will be extended to 56 days.
These Orders are as just and equitable as the evidence allows.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 21 December 2015
Key Legal Topics
Areas of Law
-
Family Law
-
Property Law
Legal Concepts
-
Costs
-
Damages
-
Remedies
-
Injunction
0
3
2