Jardine and Jardine
[2008] FMCAfam 271
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JARDINE & JARDINE | [2008] FMCAfam 271 |
| FAMILY LAW – Child aged nine – final arrangements for care – presumption of equal shared parental responsibility – competing applications for child to live with each of her parents – whether in child’s best interests or reasonably practicable for child to spend equal periods or substantial and significant periods of time with each parent – relevance of child’s views – consideration of other section 60CC factors – property – assessment of contributions – gifts made by parties’ parents – assessment of s.75(2) factors – just and equitable. |
| Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA; 65DAC; 75(2), 79(4) |
| Lee Steere v Lee Steere (1998) FLC 91-626 D & D [2003] FamCA 473 Goode & Goode (2006) FLC 92-286 C & C (2005) FLC 93-220 |
| Applicant: | MS JARDINE |
| Respondent: | MR JARDINE |
| File Number: | ADC3170 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 12 & 13 March 2008 |
| Date of last submission: | 13 March 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Nelson QC |
| Solicitors for the Applicant: | Townsends |
| Counsel for the Respondent: | Mr Healy |
| Solicitors for the Respondent: | Armour & Allen |
ORDERS
The parties have equal shared parental responsibility for the child of the marriage B born in 1998 (hereinafter referred to as “the child”).
The child live with the wife.
The father spend time with the child as follows:
(a)During school terms, on alternate weeks, from the conclusion of school on Friday until the commencement of school the following Monday (or Tuesday in the event that Monday is a public holiday).
(b)For one half of each school holiday period at times to be agreed between the parties.
(c)For a period of four (4) hours on the child’s birthday at times to be agreed between the parties or in default of agreement between 3:00pm until 7:00pm.
(d)For a period of at least four (4) hours on the father’s birthday each year at times to be agreed between the parties or in default of agreement from 3:00pm until 7:00pm.
(e)At any other times as may be agreed between the parties.
The operation of these orders is suspended in respect of the Christmas period of each year so that the child spends equal time with each of her parents, at times to be agreed between the parties and failing agreement to be from 6:00pm on Christmas Eve until midday on Christmas Day with the mother in 2008 and each alternate year thereafter and with the father from 6:00pm on Christmas Eve until midday on Christmas Day with the father in 2009 and each alternate year thereafter.
In the event that Mother’s Day falls on a day when the child is in the care of the father, the father shall spend time with the child on the preceding weekend in lieu thereof.
In the event that Father’s Day falls on a day when the child is in the care of the mother, the father will be entitled to spend time with the child on Father’s Day from 9:00am until 6:00pm.
The mother is entitled to continue the enrolment of the child at the [R] School.
Each party has the right to attend at the child’s school for all events that parents are normally entitled to attend.
Each parent shall have the right to obtain copies of the child’s school academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own costs), fee and enrolment information and all other information pertaining to the child’s schooling and school related activities.
The husband and wife shall do all reasonable things to ensure that the other is kept informed in a timely manner of any issues related to the well being, health, education and care of the said child whilst she is with that respective parent.
The husband and wife shall provide to the other party from time to time the following information within four (4) days of that parties written request to the other party having such information:
(a)The name of the general practitioner attending to the said child’s health requirement and the names of any medical specialists, psychologists, psychiatrists and social worker so attending to the said child; and
(b)The names of any hospitals, clinics and health institutions that the said child attend and the dates of such attendances.
Should a medical emergency arise in relation to the said child whilst the said child is in the care of a parent, then that parent shall notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and address of any treating medical practitioners and hospital and the location of the said child.
The husband and wife shall have the right to communicate with and obtain any information concerning the child’s physical and mental health and welfare direct from any general medical practitioner, specialist medical practitioner, psychologist, psychiatrist, other health professional, counsel and/or social worker.
That in full and final settlement of all claims for settlement of matrimonial property:
Within thirty (30) days of today’s date the parties do all things necessary and execute all necessary documents to place the former matrimonial home situate at Property [M] in the State of South Australia on the market for a price of not less than $430,000.00 or any lower price on which the parties’ mutually agree and that pending the sale of the property the husband be entitled to sole occupation of the property provided he pays all rates, taxes, mortgage payments and house insurance as they fall due and upon the sale of the aforesaid property the proceeds of sale be paid as follows:
(a)Firstly to pay the costs, commissions and expenses related to the said sale;
(b)Secondly to pay the mortgage and overdraft secured against the aforesaid property;
(c)Thirdly to pay Ms J the sum of $20,000.00;
(d)Fourthly to pay the balance as to 75% to the wife and 25% to the husband.
Concurrently with the payment to the husband referred to in order 14(d) hereto, the husband pay to the wife the sum of forty-two thousand dollars ($42,000.00) from his share of the proceeds of sale.
In the event the parties are unable to agree upon the method of sale of the former matrimonial home and the identity of any real estate agent to effect such sale these issues be determined by the President of the Real Estate Institute of South Australia or his/her nominee.
Unless otherwise as specified in these orders and except for the purposes of enforcing the payment of any moneys due under these or subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses in action) in possession of such party as at this date;
(b)Each party hereby foregoes any claim that he or she may have to superannuation benefits belonging to or earned by the other which are standing in the other’s name;
(c)All insurance policies become the sole property of the beneficiary named thereunder;
(d)Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
The application herein be otherwise dismissed.
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 MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC3170 of 2007
| MS JARDINE |
Applicant
And
| MR JARDINE |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Jardine and Mr Jardine were married in April 1995 and separated in November of 2005. They are the parents of B born in 1998.
These proceedings are concerned with final arrangements for the care and parenting of B and how the parties’ property should be divided between them at the end of their marriage.
The parties’ major asset is their former family home situated at Property [M]. When the parties separated, the wife and B moved to rented accommodation in [R], approximately 17kms away. As a result, B moved from attending [M] School to [R] School, the school which she continues to attend.
The husband continues to live in the [M] property. He has a close connection with the [M] area and wants to continue living there. He also believes that B too retains many friendships from her time at the [M] School. As such, he believes it is likely to be in her best interests to return to the school, which will require her to live predominantly with him.
Unfortunately, these proceedings have taken too long to be resolved. The wife started the proceedings, in the Family Court at Adelaide, on 20 January 2006. On 21 March 2006, Registrar Kelly (as she then was) made orders that B live with the wife and have “contact” with her father, during school terms, on alternate weekends from after school on Friday until 6:00pm the following Sunday; as well as on each Wednesday, from after school until the commencement of school the following Thursday. Registrar Kelly also ordered that B should spend half of each school holiday with each of her parents.
These orders have essentially remained in place until the present time. The only change has been to make specific arrangements for the husband to spend time with B on special occasions, such as Father’s Day; Christmas time; the father’s birthday; and B’s birthday.[1]
[1] See orders of 30 June 2006
Mr Jardine finds the current Wednesday night arrangement inconvenient and disruptive to him. He is self employed, running a business from both his home in [M] and business premises in [P].
Ms Jardine works, on a part-time basis, as a receptionist for [X], at its office in [K]. This is a firm operated by her family and she has worked there for many years. As a result, she has been able to arrange her hours of work around B’s attendance at school at [R] School. Her place of work, her home and B’s current school are in close proximity to one another. As such, she can see no pressing need to change arrangements for B’s care at this stage.
However, in deference to Mr Jardine’s concerns about the current overnight Wednesday arrangement, Ms Jardine is prepared to consider a longer arrangement each alternate weekend during term times. She proposes that B should spend time with her father from after school on Friday until the commencement of school the following Monday in alternate weeks. She is however vehemently opposed to any change in B’s school, particularly that she returns to [M] School.
A central plank of Mr Jardine’s case is that B should immediately return to [M] School. This would be much more convenient to him, given his current address and business commitments. He also believes it is what B would prefer.
As such, he proposes that B should live with him, during school terms, from the commencement of school on Monday until the conclusion of school the following Friday and spend each weekend with her mother, apart from the times when B is playing netball on Saturday mornings.
In respect of school holidays, he proposes that B should spend an even number of nights, during school holidays, with each of her parents.
Ms Jardine does not say anything other than that B should spend equal periods of time, with her parents, during school holidays.
In order to assist in the resolution of the dispute between them, regarding parenting arrangements for B, the parties commissioned a family assessment from Mr Rudzitis, an experienced psychologist.[2] In his report, Mr Rudzitis cautioned against any major change in arrangements for B’s care at this stage. He also considered that B’s view about her future living arrangements should be given “considerable weight” by the court in its ultimate decision.
[2] Registrar Kelly ordered that a family assessment be prepared, by a psychologist to be agreed between the parties, at their joint expense, on 30 June 2006. Mr Jardine apparently nominated Mr Rudzitis as a satisfactory psychologist from his point of view. However, he was unable to contribute his half of the cost of Mr Rudzitis’ report and did not attend upon Mr Rudzitis for the necessary interviews required for the preparation of a family assessment. Accordingly, on 22 November 2007, I ordered that a family report be prepared pursuant to Section 62G of the Family Law Act 1975. Fortunately Mr Rudzitis was able to complete the family report pursuant to this order.
In interview with Mr Rudzitis, B said as follows:
“I would like to see Dad a bit more, maybe stay with him on Sunday night instead of coming back to Mum’s on Sunday afternoon. I miss Mum as much when I’m at Dad’s… changing schools is possible but it was a bit hard for me to change from [M] to [R] before and it might be a problem now.” [3]
[3] See family report dated 11 March 2008 at paragraph 32
As a result of these matters, Mr Rudzitis recommended that B should continue living with her mother, attending at [R] School and should maintain her present regime of visits with her father. Although
Mr Rudzitis believed that the parties should have equal shared parental responsibility for B, he did not consider that their relationship with one another was suitable to sustain an arrangement whereby B lived with each of her parents for equal periods of time.
It is now over two years since the wife commenced these proceedings in the Family Court. The proceedings were transferred to this court in June of 2007. At that stage, Mr Jardine was acting on his own behalf. One of the reasons for the delay seems to have been an argument between the parties regarding the size of the pool of property available to be distributed between them.
The wife concedes that, during the marriage, she held large parcels of shares in both publicly listed and proprietary companies. The latter category of shares being related to businesses operated by her father and other family members. However, it is the wife’s evidence that she held these shares on trust, for her father, Mr S and derived no financial benefit whatsoever from them. She has now transferred her legal interest in these various shares to other members of her family.
Mr Jardine initially asserted that these shares were in actuality the wife’s property and she had the potential to derive significant benefit from her ownership of them. It was only during the hearing of the evidence in the case that he conceded that there was no deceit, on the wife’s part, in respect of her holding of the shares, which in reality actually belonged to others rather than the wife. Accordingly,
Mr Jardine abandoned his application that these various shares should be “added back” into the parties’ pool of marital assets.
As a result of this concession, the parties’ pool of marital assets is a modest one, chiefly consisting of the parties’ former family home at Property [M]. The parties agree that the property is worth $430,000.00 and is subject to two mortgages totalling $142,000.00.
The only other assets of any significant value are the parties’ respective superannuation interests – $42,522.83 in the wife’s case and $16,225.29 in the husband’s case.[4] In addition, the husband has maintained control of his business. The various aspects of this business have not been formally valued.
[4] During the hearing of the case, Mr Jardine indicated that he held $3,872.58 in ANZ Superannuation and $12,352.71 in Australian Superannuation
It is the husband’s case that the parties’ various contributions, during the marriage and afterwards, should be regarded as essentially equal. As such, he asserts that the parties’ property should be divided equally between them.
The wife does not agree. It is her position that her contributions, both financial and non-financial, have been vastly superior to those of the husband. In particular, she points to moneys advanced by her father, Mr S, which enabled the parties to purchase the [M] property in the first place.
In addition, if B remains living with her, the wife asserts that it is unlikely that Mr Jardine will contribute much to B’s ongoing financial support, as he is currently paying no child support for B. As a result of these factors, the wife asserts that she should receive all of the proceeds of sale of the [M] property and retain her superannuation entitlement.
In these circumstances, she would have no objection to the husband retaining his business. The second mortgage on the [M] property ($40,000.00) was taken out by the parties to purchase the business in the first place. If the [M] property is sold, which the wife asserts is inevitable, this second mortgage would be paid out and the husband would be able to retain his business, effectively debt free, which would provide him with a measure of financial security in future.
These proceedings are designed to resolve the various disputes between the parties, and, as far as possible, finalise their financial relationship with one another. When parents, who no longer live together, ask the court to determine where and with whom their child should live, it is the best interests of the child concerned which are paramount.[5]
The legal principles to be applied and the issues in the case
[5] See Family Law Act at section 60CA
a) Property aspects
The process to be followed for the division of the parties’ property is well established by law.[6] The relevant legal principles are primarily contained in sections 79 and 75(2) of the Family Law Act 1975. I am required to follow a number of specific steps.
[6] See Lee Steere v Lee Steere (1998) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-335;
Firstly, I must ascertain what are the parties’ assets and liabilities as at the date of trial.[7] As has previously been indicated, the parties have been able to agree upon the value of their most significant item of property, the former family home situated at Property [M]. They also agree as to the amounts outstanding in respect of the two mortgages registered against the property.
[7] See Wardman & Hudson (1978) FLC 90-466; and Biltoft & Biltoft (1995) FLC 92-614
However, there exist several other significant disputes between the parties, regarding the extent of their matrimonial pool of assets and the liabilities relating to it. These disputes can be summarised as follows:
·The wife asserts that her parents lent her and the husband a total sum of $93,285.00 to purchase the land at Property[M], in August 1999 and to finance the building of the house there. As such, she says this sum needs to be repaid to Mr and Ms S, when the property is sold.
·The husband asserts that these moneys were a gift to him and the wife and, as such, need not be accounted for as a joint matrimonial debt.
·The husband, supported by his mother, asserts that Ms J lent him (and by necessary implication the wife) the sum of $20,000.00 in 1999 in order to purchase a truck for use in his transport business. The wife does not accept that this sum should be taken into account.
·There is a further dispute between the parties regarding a loan the husband’s mother, Ms J made in 2003 in order to pay for repairs to the husband’s truck. The husband says the loan was $20,000.00, the wife says it was $15,000.00. Both agree it should be repaid.
·There is a dispute between the parties regarding the value of the husband’s model collection. It has not been valued. The wife says it is worth in excess of $15,000.00. The husband says it is around $4,000.00.
·The husband operates three related businesses – [G]; [S]; and [T]. These businesses have not been formally valued.
·The husband owns numerous equipment used in his business. The value of the stock and plant used in the various businesses will have to be taken into account in some way.
·The husband has a Ford motor vehicle. It has not been formally valued. He asserts its value is $200.00.
·Other issues potentially arise regarding the value of household items in the possession of each of the parties.
Secondly, I must ascertain the contributions which each party has made towards those assets. Contributions fall into two broad categories. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.” It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
In assessing the parties’ contributions to the acquisition of the assets of their marriage, it is necessary to consider whether the court should adopt a global approach or an asset by asset approach. In the former, the court assesses the parties’ contributions to their assets in a total or comprehensive manner. In the latter, the court assesses the parties’ contributions to individual items of property.
The global approach is the method generally adopted because it is usually the more convenient, particularly when the court is assessing different types of contributions – home making and financial – towards the acquisition of the various assets concerned.[8] In this particular case, the parties have agreed that it is appropriate to adopt the global approach.
[8] See Norbis v Norbis (1986) FLC 91-712 at 75,268
The second step occasions controversy between the parties in the following major areas:
·The husband asserts that he had more assets at the commencement of the parties’ relationship than the wife - $19,200.00 as opposed to $8,800.00.
·In addition to the loan from his mother, the husband asserts that Ms J gave to the parties other significant sums of money, which should be accounted for as contributions made on his behalf.
·The wife asserts that if the moneys advanced by her parents are not treated as a loan, which requires repayment, the significant sums advanced by them should be regarded as a contribution to which she alone is entitled.
·It is the husband’s position that he consistently earned more than the wife during the marriage and his income was used entirely for joint family purposes.
·On the other hand, it is the wife’s position that the husband’s employment was sporadic, whilst her employment, though modestly paid, was regular and reliable. She asserts that her wage was used to pay the periodic mortgage payments required on the [M] property.
·The husband asserts that the wife has made a number of significant “negative contributions” during the marriage. He alleges that she lost money gambling on poker machines and her mismanagement of the finances of his various businesses has caused moneys to be lost.
·Although the husband concedes that the wife’s shareholdings, on behalf of other members of her family, should not be added to the parties’ pool of assets, he contends that these holdings have at times precluded him and the wife from receiving various government benefits, which potentially amounted to many thousands of dollars. Again, he asserts that this is a “negative contribution” attributable solely to the wife.
·The husband asserts that he made considerable improvements to the [M] property, including landscaping and other improvements, which have significantly increased its value.
·The husband asserts that his mother provided free child care for B, prior to her attending school, which has saved the parties many thousands of dollars in child care. He asserts that this is a contribution for which he is now entitled to credit.
·The wife asserts that the husband has wasted significant sums of money in pursuit of his interest in models.
·The husband is critical of the mother’s standard of home making and asserts that he had to assume a greater amount of these duties because of the wife’s domestic ineptitude. He also asserts that he did all of the household maintenance and gardening.
·The wife asserts that she was B’s primary care giver and the husband did little to assist her in regards to B’s care. The husband does not accept this.
·It is the wife’s position that she has made far greater contributions in the period in excess of two years since the parties separated. She has had to move to rented accommodation and has provided the vast majority of the care for B, without any significant financial contribution from the husband, who has had the benefit of living in the former family home.
·On the other hand, the husband points to the fact that he has made all the necessary mortgage payments, apart from one, on the [M] property since the parties separated.
·There is a significant discrepancy in the parties’ current level of superannuation. How should the court assess the parties’ various contributions to these separate funds.
At the end of the second stage, the wife asserts that her various contributions, during the marriage, particularly the significant injection of cash from her parents, which enabled the purchase of the [M] property are significantly greater than those of the husband. On the other hand, it is the husband’s position that the parties’ various contributions should be regarded as being essentially equal.
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 75(2) of the Family Law Act 1975. Pursuant to section 75(2)(o), the Court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
In the main, section 75(2) deals with the prospective needs of the parties. This area too, occasions controversy between the parties in the following areas:
·The wife points to her responsibility to parent B as being a significant factor in her favour.
·It is also the wife’s position that she is unlikely to get any significant child support from the husband.
·On the other hand, it is the husband’s position that now B is aged 10, there is no impediment to the wife assuming full-time work. He also points to his proposal for B’s care, as being likely to assist the wife in having an increased income earning ability.
·On the other hand, as much of his work takes place on weekends, the current arrangements for B’s care are significantly disadvantageous to him.
·The husband suffered a heart attack in November 2005. At the time of the heart attack, he was diagnosed as suffering Type II Diabetes. He has made a good recovery and has made significant changes to his lifestyle. However, as the wife enjoys good health, the husband asserts this is a factor, which favours him.
·The wife is forty years old. The husband is forty-seven. Accordingly the husband is closer to retirement age.
·Given that the wife works for a company owned and controlled by members of her family, it is the husband’s assertion that the wife’s employment is “completely secure” whereas he, being self-employed, is more financially precarious.
It is the wife’s position that the various section 75(2) factors favour her. She asserts that there should be at least a further allowance of at least ten percent, made in her favour, for these various factors. On the other hand, it is the husband’s position that no significant allowance should be made in favour of either party, by way of section 75(2) factors.
Finally in determining what order the court should make under section 79, the court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the court must consider.[9]
[9] See Russell v Russell (1999) FamCA 187
The “overriding requirement” of section 79 is that considerations of justice and equity should inform each step of the process. The exercise I must undertake is not a “process of social engineering”[10] or of equalisation of assets or financial resources.
[10] See Waters & Jurek (1995) FLC 92-635
At the outset, I am at pains to point out to the parties that the task I must undertake is not a simple accounting or arithmetical task. In the jargon of the times, I cannot “crunch the numbers” to come up with a division of their property, which is not open to challenge or incapable of different interpretation.
Marriage is by and large a joint enterprise. How much buffer spouses must give one another, when financial set backs occur, must depend on the degree of consultation and acquiescence in their relationship.[11]
[11] See D & D [2003] FamCA 473 at paragraph 49
The task, set out for me in this case, requires me to balance and compare contributions which are by their nature different, within the framework of a marriage. Many contributions in a marriage, such as being a homemaker, do not result in the direct acquisition of assets. They are also difficult to value. The discretion I have is a wide one.
b) Child issues
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of B’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm arising from the child being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, including grandparents and cousins [section 60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)]. In this case, neither party raises any issues to do with neglect, abuse or family violence.
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time, provided this outcome is both likely to be in the child’s best interest and reasonably practical.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the child’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the child concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the child concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[12]
[12] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
In this particular case the following issues seem to arise regarding future arrangements for B’s care:
·Fundamentally is it likely to be in B’s best interests that her parents have equal shared parental responsibility for her? [section 61DA(4)].
·If so, should she live with her parents for equal periods of time or substantial and significant periods? [section 65DAA(1)(2) & (3)].
·
Given the distance between the parties’ respective homes; the uncertainty about where Mr Jardine will live in future; the parties’ poor parenting relationship with one another; and the hours
Mr Jardine puts into his business; is either a shared care arrangement or a substantial and significant time arrangement reasonably practicable in all the circumstances of this case? [section 65DAA(5)].
·If it is found that shared care arrangement or an equal time arrangement is impracticable, what is the best means of ensuring B has a meaningful relationship with each of her parents? [section 60CC(2)(a)].
·Do the current circumstances dictate that B should live more with one parent than the other? If so, who of the parties should it be?
·In this regard, what weight should be given to any views expressed by B? [section 60CC(3)(a)].
·What are the likely consequences for B, if there is a significant change in arrangements for her care at this stage? [section 60CC(3)(d)].
·Who of the parties is better placed to provide for B’s needs? [section 60CC(3)(f)].
·In particular, is the mother incapable of providing for B’s dietary requirements, as the husband alleges or is his fixation on this issue, including his examination of B’s stools, potentially emotionally detrimental to B, as the wife alleges?
·Finally and most importantly, what is the best outcome for B?
The evidence
The wife relied on the following documents:
i)two affidavits of herself filed on 17 August 2007 and 22 February 2007 respectively;
ii)a statement of her financial circumstances filed 17 August 2007.
The husband relied on the following documents:
i)an affidavit of himself filed on 7 March 2008;
ii)a statement of his financial circumstances filed 7 March 2008;
iii)an affidavit of his mother, Ms J filed 7 March 2008.
In addition, both parties relied on the family report of Mr Rudzitis dated 11 March 2008. This was tendered into evidence. The parties themselves, Ms J and Mr Rudzitis were the only witnesses who gave evidence in these proceedings.
Mr Rudzitis has been a psychologist specialising in providing family reports for courts adjudicating disputes concerning arrangements for children for many years. During that time, he has prepared literally hundreds of family reports. I accept his evidence and the recommendations which he makes.
Ms J was a delightful person, whose integrity and honesty are beyond doubt. She and the wife have been able to maintain a close and cordially relationship with one another, notwithstanding the end of the marriage between the parties. Indeed the wife stayed with Ms J, for around six weeks, after the parties separated.
In addition, when B was a small child and both her parents were working, Ms J regularly cared for B. As a result, Ms J has an extremely close relationship with B, whom she continues to see regularly, at her home, as well as at the father and mother’s home.
Ms J described B as a healthy and happy little girl, of whom she is very fond. She also indicated that both B’s parents loved her very much indeed and both wanted the best for her, both now and for the rest of her life. I accept Ms J’s evidence in this regard unequivocally.
I do not think that either of the parties was dishonest or disingenuous in their respective presentation of evidence to the court, notwithstanding that there are many areas of dispute between them. Rather, I think both followed the natural human tendency, in adversarial proceedings such as these, to maximise their own respective contributions and minimise those of the other. For the reasons which follow, I consider that this tendency is particularly pronounced in the case of the husband.
In addition, both parties seemed to me to be temperamentally different and this perhaps has also had an influence on their evidence and how they recall their respective contributions during the marriage and how they parented B. Again, my respective assessment of each of the parties causes me to consider that the wife is more likely to be a reliable historian than the husband is.
The wife was timid and overawed by the proceedings, particularly her cross-examination. She is not an assertive personality and I would think her easily dominated by any other stronger personality. Overall, the wife seemed to me to be a very vulnerable person.
The husband is quite eccentric in nature and self absorbed in his own interests and concerns. He seemed to have little empathy for the wife and to be quite idiosyncratic. He is the sort of person who has a tendency to think he is right more often than not. For instance, one of the major reasons he wishes the particular outcome he does, in regards to the aspects of the case effecting B, is that it will suit him.
[M] School is convenient to his current home and where he wants to live in future. Much of his work takes place on the weekends. Accordingly, it suits him to have B during the week and for her to go to her mother’s on every weekend. An additional rationalisation of such an outcome from his point of view, is that it would enable the wife to take up more hours of employment and reduce her future financial dependency on him, so far as support of B is concerned. I point out this matter because of my concerns that the husband is not always able to differentiate his needs from those of B.
The husband was a far more confident and at times argumentative witness than the wife. He was always able to self righteously justify his various positions. I suspect that this leaves him with very little capacity for rigorous self-scrutiny. He is quick to find fault in others but not himself. On balance, I think the wife is likely to be the more insightful and thoughtful parent.
To his credit, on the second day of the hearing, through his counsel,
Mr Jardine acknowledged there was nothing in his previous assertions regarding the wife’s beneficial ownership of shares worth allegedly up to $800,000.00. However, up to this time, he had dogmatically stated his concerns about the issue and how the wife had concealed assets, both from him and the court.
With respect to Mr Jardine, I was never seriously troubled about the issue. To me, it was patently absurd to think that the wife had secreted away such a considerable sum, for her own benefit, given the modest financial circumstances of the parties. The wife has no great financial acumen. I suspect that her parents are watchful, so far as the provision of funds to her.
Although the husband was brashly confident about his own capacities with money and the prospects of success for his various businesses, I consider him somewhat inept fiscally. It seems to me likely that his previous attempts at self-employment, as a taxi truck driver, were not particularly successful. In addition, I accept the wife’s evidence that the husband has lost several employment positions due to personality clashes with his work supervisors.
The husband’s affidavit was a lengthy one. Much of it consisted of unsubstantiated attacks of the wife in respect of such matters as her problem gambling and mismanagement of his businesses accounts. I did not find any evidence to substantiate these claims of alleged negative contributions on the wife’s part. In addition, the husband seemed to have considerable difficulty in acknowledging the considerable assistance the wife’s parents provided to the parties during their marriage.
Bearing all these matters in mind, it seems to me likely that the husband has a distorted view of his various contributions during the marriage, particularly how they should be appropriately weighted against those of the wife.
On balance, I think it likely that neither party is particularly good at managing funds and both are likely to have wasted some moneys in the past. In particular, it seems to me likely that the husband spent considerable sums in pursuing his interest in models. The wife is unlikely to have been able to rein in the husband’s expenditure in this regard and he is unlikely to be self-critical in respect of his expenditure on it.
It also seems to me to be likely that neither party is a particularly proficient home maker. Neither seems to require a particularly high level of domestic efficiency in their home environments. It is only after his heart attack that the husband has become a devotee of healthy eating. Prior to that time, he was content to share the same dietary practices as the wife.
Both parties are devoted to B, who is a much loved child. The husband shares his interest in models with B. However, it seems to me likely that, both before the parties separated and certainly afterwards, the wife has provided more of B’s day to day care.
Bearing all these various factors in mind, it seems to me likely that the wife is the more reliable witness and better historian overall. Accordingly, I am more inclined to accept her evidence, where there is a conflict between the parties.
In these reasons for judgment, findings of fact are made on the balance of probabilities, following my observations of each of the witnesses concerned. In what follows, statements of fact constitute findings of fact.
As the final disposition of arrangements for B’s care is likely to impact upon financial considerations, I propose to deal with the aspect of the case first dealing with her.
Mr Rudzitis’ evidence and report
Mr Rudzitis deposed that B appeared to him to be a “well nourished and healthy” child, who interacted well with him. He found her able to articulate her views. Given B’s age, Mr Rudzitis considered B’s views should be given “above average consideration”. In Mr Rudzitis’ opinion, although B was concerned at the possibility of upsetting her father, her “true preference” was for things to remain as they are.
As previously indicated, Mr Rudzitis has provided two family reports in this case. However, the first one did not include any interviews with Mr Jardine. Over the course of the two reports, B has consistently stated that she wishes to retain the current status quo, regarding her parenting arrangements. In his second report, B was described by
Mr Rudzitis as being “articulate and self-confident”.
B described her father as being the stricter of her two parents, whilst her mother was described as being more demonstratively affectionate. Insightfully, B described that her parents looked after her “in different ways”.[13] B’s view of her parents accords with my own impression of them.
[13] See Family Report at paragraph 24
Importantly, B stated to Mr Rudzitis that she felt “comfortable” with both her parents. In such circumstances, it seems clear to me that B has a close and loving relationship with both her parents and has much to derive from each of them, who are likely to parent her in different but possibly complementary ways.
B also indicated to Mr Rudzitis that she liked [R] School and had made friends there, some of whom came for sleepovers, with her, at her mother’s home. However, B also acknowledged that she had retained friends at [M] School and from her netball.
Accordingly, she could see some positives about returning to [M] School. She said as follows to Mr Rudzitis:
“I’m happy with now but hope mum and dad can change for the better … if I have to live with dad five days and mum two, I’d try it but if I did not like it I’d tell mum and hopefully they’d change it to something else, if I liked it I’d leave it as is, I’ll try whatever the judge decides.” [14]
[14] Ibid at paragraph 25
The impression I have from this quotation from B is that she is an obedient child, who will abide by whatever decision is made and do whatever her parents tell her to do. However, in my view, it cannot be said that her acceptance of living with her father, during the week, is a ringing endorsement of the proposal. I agree with Mr Rudzitis that B’s true preference is likely for things to remain as they are. It also seems likely that B has a warmer emotional connection with her mother.
A significant element of the husband’s case is that the wife is a poor housekeeper, who does not take proper care of B, particularly in terms of her diet. Mr Rudzitis could find no evidence of any malnourishment or other abnormality in B’s presentation to him. In addition, Ms J, whom one would expect to be more aligned with the husband than the wife made no specific criticisms of the wife’s care of B, although she deposed that the wife did not keep a particularly clean house.
Mr Rudzitis had a significant advantage over me in this case. He was able to visit each of the parties’ homes and observe each of them with B. He described the husband’s home as being cluttered and untidy, filled with half empty boxes, which apparently related to the husband’s business, which he operates from the home. The house was described as clean.
Mr Rudzitis described the wife’s house as less untidy than the husband’s but not overly tidy. It was described by Mr Rudzitis as being “clean” and left Mr Rudzitis with no sense of disquiet regarding a child of B’s age living in it. Overall, the mother’s house was described as “lived in; child orientated and small”.
Mr Rudzitis’ view was confirmed by B herself. She said that her mum’s house was not as messy as her dad’s house. Indeed B said to Mr Rudzitis that she likes things “messy”. In terms of food, B said the food at her father’s household was healthier but “tastier at mums”.
My impression of Mr Jardine is that he has become preoccupied with dietary matters since his heart attack. I can understand why this would be so. He now realises the life and death implications of diet, particularly for those with a genetic predisposition towards heart disease. In such circumstances, it is only to be expected that he would be concerned about B’s diet. However, I believe those concerns are likely to have become distorted in the circumstances of the parties’ difficult and mistrustful relationship with one another.
B confirmed to Mr Rudzitis that her father questioned her about what she had to eat at her mother’s household. It was B’s view, as expressed to Mr Rudzitis, that a week about arrangement would be too confusing for her. She was also able to recognise the dilemma, arising from her current situation, in that she told Mr Rudzitis that she missed both her parents, when she was with the other of them and that this was something she could not fix. Accordingly B seems to me to be an insightful child.
In this context, B seems to have raised the possibility of staying a little longer with her father each alternate weekend but not otherwise greatly changing the existing arrangements for her care. It was clearly
Mr Rudzitis’ view that B was not in favour of another change of her school, given the period of time she had been at [R] School.
After his interviews with each of the parties and with B, Mr Rudzitis provided the following evaluation:
“B’s relatively liberal attitude to her present parenting arrangements of some two years suggests a successful situation without major problems at this time, therefore caution should be exercised about changes.
As always the child’s needs must supersede those of the parents, the father’s best logic and intentions towards change may not be the best thing from the child’s point of view, whose wishes should be given considerable weight.
The parties’ strained parenting relationship most certainly would influence their particular positions, aggravated by stalled property settlement issues.
The parties should consider participation in therapeutic counselling regarding post separation parenting normalisation as soon as possible for the child’s greater welfare and comfort.” [15]
Determining B’s best interests – section 60CC
[15] Ibid at paragraphs 33-36
a) The primary considerations
The applicable legislation places two considerations in a position of pre-eminence – the need to protect the child concerned from harm, as a result of exposure to abuse and family violence; and the benefits of the child having a meaningful relationship with both of his or her parents.
There are no concerns, raised by either of the parties, concerning neglect, abuse or family violence. Accordingly, considerations of B pursuing a meaningful relationship with both her parents must be given pre-eminent consideration in this case.
In my view, B has a strong and meaningful relationship with both her parents. This situation has come about because both have had a significant level of input into providing for B’s care, both before and after their separation. B knows both her parents and loves each of them.
Whatever is the ultimate outcome in this case, B will continue to see a great deal of both her father and her mother. Fortunately, neither party has any plans to move away from the area of metropolitan Adelaide. Accordingly, B will have a sense that both her parents are involved in her life and are active participants in it. As I have previously advised, B is a much loved little girl.
Additional considerations
a) B’s views
The applicable legislation requires me to consider any views expressed by the child concerned and any factors which may affect the weight to be given to those views, such as the child’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[16]
[16] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in the particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[17]
[17] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[18]
[18] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
I agree with Mr Rudzitis’ assessment that B’s views in this case merit being given considerable weight. She is well aware of the conflict between her parents and what outcome each would prefer in this case. She is also intimately acquainted with both her parent’s households. As such, she is able to weigh up the pros and cons of each, from her own perspective.
B is in a difficult position. She wishes to tread warily for fear of upsetting one or other of her parents, particularly her father. She will live with whatever outcome the court decrees. However, it seems clear to me that her true position is that she wants things essentially to stay as they are. This is one of the most significant factors in this case and favours the wife’s position.
B has personal experience of the trauma involved in changing schools. She remembers the difficulty she encountered when she moved from [M] to [R] School. She does not wish to repeat this trauma. Although B acknowledges that she retains some friendships at [M], two years is a very long time for her, given her age and level of development.
Accordingly, although the move back to [M] may not be as traumatic as the move to [R] was, I consider that it still has the potential to be upsetting for B and this is something of which she is well aware. As such, her wish to remain at [R] School is one proffered with a significant degree of insight on her part and is one to which the court must have significant regard.
b) The nature of the child’s relationship with each of her parents and significant others
As I have already indicated, B has a close and loving relationship with each of her parents. However, on balance, I accept the mother’s evidence that she has provided more of the day to day parenting of B, both before and certainly after the parties separated. As a result, the relationship between the two is a warm and loving one. As B herself told Mr Rudzitis “Mum hugs me and looks after me and lets me be silly sometimes…”.[19]
[19] See Family Report at paragraph 24
B also has a significant relationship with her paternal grandmother,
Ms J. Again, whatever is the outcome in this case, B will continue to see Ms J regularly. In addition, in the past, Ms J has regularly provided care for B. Again, B is fortunate to have such a capable and involved grandmother.
Mr and Ms S did not give evidence in these proceedings. They live in South East South Australia. However, they also have a townhouse in Adelaide, next door to the mother’s home. As a result, they also see B regularly. Accordingly, B has significant attachments to both her paternal and maternal grandparents.
The wife’s brother and sister-in-law also live close to [R]. They have four children, who are B’s cousins. My impression is that B has close relations with the various members of her maternal family, with whom she frequently interacts. She is at the centre of a warm network of family.
c) The willingness and ability of the parties to encourage a close and continuing relationship between the child and the other parent
Notwithstanding the criticisms each party has of the other, B has been able to maintain her relationship with each of her parents. In somewhat difficult circumstances, she has regularly spent time with her father. I am satisfied that both parties realise the importance to B of her spending regular periods of time with each of her parents.
d) The likely effect on the child of any change in her circumstances
In my view, the matters which fall for consideration under this heading are important in the case. It is Mr Jardine’s view that B was doing better at [M] School than she is currently doing at [R] School. As such, he argues that this is a reason in favour of her returning to the school at this stage.
I do not agree. B’s most recent report[20] indicates B has achieved a satisfactory outcome in respect of each of her areas of study. In my view, there is nothing untoward or concerning in any aspect of B’s education at [R]. The two schools concerned do not appear to me to be vastly different in respect of the level of education they offer.
[20] See Exhibit JMJ19 to the wife’s affidavit filed 22 February 2008
The wife has adapted her working hours to suit B’s attendance at school. As a result, she is able to drop off and pick up B before and after school. The wife also has access to assistance from other members of her family, in respect of arrangements for B’s care during school holidays. The wife’s accommodation at [R] is secure and it seems unlikely that she will move out of this area in the foreseeable future.
Mr Jardine was at pains to promote his business to the court and the hours of work he puts into it. One aspect of Mr Jardine’s business is the purchase, on the internet, of items and their subsequent sale, at a profit, by the husband to other enthusiasts. The husband conceded that he spends many evenings each week on the internet either searching for such items or attending to the administrative aspects of his business.
The husband operates a workshop at [P], where he puts together the products which he sells to his customers both interstate and overseas. He conceded that he often returns to his workshop during the evening to continue his work. My overall impression of the husband was that his work and business interests consume a large part of his waking hours. As such, I am concerned that he has not given a great deal of thought as to how his proposal to care for B will impact upon his business. I am also concerned that the husband may prioritise business concerns over the need to provide regular and reliable care to B.
In this regard, one of the reasons Mr Jardine puts forward for wanting B to live with him during the week is that it will leave his weekends free to enable him to pursue his model interests, particularly as much of his business is done on weekends. In putting his proposal, I am concerned that the husband is thinking more of his convenience than of B’s needs. In this regard, I consider that the husband’s pre-occupation with B returning to [M] School is based on its proximity to his home rather than on what is likely to be best for B.
The husband has complained that it is very inconvenient for him to have to come to [R] to collect B on Wednesday afternoons. He asserts that this arrangement has impacted upon the needs of his business. In all these circumstances, I am gravely concerned that the husband has not closely considered, what the consequences will be for B, if his proposal is put into operation.
The husband’s position is predicated on the basis that he will remain living in the [M] area. I do not think that this necessarily can be regarded as being certain. If the [M] property is sold, it may be the case that the husband will be unable to afford accommodation in the area. He may have to look elsewhere. Accordingly, it is my view, that the father has not thought through his proposal with any great rigour and is more motivated by what will suit him and what he would prefer rather than what is likely to be best overall for B.
Bearing in mind what B has told Mr Rudzitis, it seems to me that she is well settled both at [R] School and in her mother’s predominant care. As such, I agree with Mr Rudzitis’ assessment that considerable caution should be adopted before any change is made to these longstanding arrangements, which have been in place since the end of 2005.
In this regard, I note that it is not open to the husband to be critical of the wife for moving B to [R] School, given that he requested the wife leave the former matrimonial home, upon the parties’ separation. At that time, it was his opinion that it would be potentially injurious to his health, if he and the wife continued to live under the same roof. In such circumstances, the wife had no alternative, but to seek other accommodation for herself. Ultimately, it was her parents, who assisted her with finding her current accommodation in [R].
e) The practical difficulties and the expense of the child spending time and communicating with each of her parents
As previously indicated, it seems unlikely that either party will move out of the metropolitan area of Adelaide. Both have access to motor vehicles. As such, there are few practical impediments to B being able to spend regular periods of time with each of her parents.
Mr Jardine complains that it is difficult for him to get to [R]. This may be so, but the distance involved is not an inordinate one. Rather, the difficulty is likely to relate to matters of personal convenience to
Mr Jardine. Accordingly, these are not significant considerations in this case.
f) The capacity of the parties to provide for the child’s needs, including emotional and intellectual needs
i) The attitude that each party has demonstrated to the responsibilities of being a parent
These matters are closely related. Accordingly, it is convenient to consider them together.
As previously indicated, one of the husband’s major criticisms of the wife is that she fails to provide B with a healthy diet. For her part, the wife has deposed that she provides a cooked meal for B each night, although they occasionally have a take-away meal. In addition, the wife deposes that she makes B’s lunch each day for school and provides an afternoon snack for her. She also deposed that she usually gives B cereal for breakfast.
Neither Mr Rudzitis nor Ms J depose as to any concerns they have about B’s appearance or energy levels. Since his heart attack, the husband has been greatly concerned about the connection between diet and overall health. Given his personal circumstances, I can understand why this would be so. Given his love and concern for B, he has no wish for her to replicate the dietary mistakes he made in the past.
The husband deposed that he took B to a Dr F earlier this year, when B was complaining of stomach pains. Dr F, who is a general practitioner, diagnosed the symptoms as being attributable to a lack of fibre in her diet and possibly psychosomatic in origin. The husband has not provided any medical report from Dr F in this regard and it seems that he has not discussed B’s attendance at the doctor with the wife.
Mr Jardine’s concerns about healthy eating and his general mistrust of the wife have caused him to quiz B about what she eats at her mother’s home. In addition, from time to time, he inspects B’s bowel motions to ensure that her diet is adequate. From his point of view, this is only what a concerned parent would do, given Dr F’s diagnosis.
From the wife’s perspective, the husband’s interest is obsessive and unhealthy and likely to be emotionally upsetting to B. In my view, the issue is symptomatic of the difficulties between the parties. They do not trust one another and do not communicate well. B has to negotiate moving between two quite different households. The husband is a zealot, so far as healthy eating is concerned. The wife is unlikely to ever meet his exacting standards, so far as B’s dietary requirements are concerned.
B herself, to Mr Rudzitis, exhibited considerable insight into the issue. She said the food was healthier at her father’s house but tastier at her mothers. Quite possibly Mr Jardine is more scrupulous in what he provides to B to eat. However, I do not think that it can be said that the wife is negligent or uncaring in respect of the food she provides to B. My overall assessment is that the wife is a caring parent, who wants the best for B. It seems to me likely that she is more in tune with B’s emotional needs.
Mr Jardine’s inspection of B’s stools may be regarded by many as unusual. He does not see it as such. It is not my role to comment on this aspect of Mr Jardine’s parenting of B other than to say that constant questioning of B about what occurs in her mother’s household, in the context of Mr Jardine’s generally negative attitude towards the wife, has the potential to be emotionally detrimental to B. In all the circumstances of this case, I do not think that the husband’s dietary concerns provide a sufficient basis to change B’s living arrangements, particularly when I consider that the wife is more able to provide for B’s emotional needs.
Both parties have attended B’s parent/teacher interviews. Ms Jardine has ensured that B has attended her netball matches and training regularly. It seems to me that both parties are committed to ensuring that B progresses well at school and her educational needs are met. I consider it likely that [R] School and [M] School provide a similar and satisfactory level of education for B. Certainly, Mr Jardine has not provided any expert evidence to support his assertion that [M] is a superior school.
On balance, I consider it likely that Ms Jardine has displayed a superior level of insight into the responsibilities of being a parent. As previously indicated, she has arranged her life, particularly her work commitments to suit B and the satisfaction of her needs.
In my view, the same cannot be said about Mr Jardine. Much of the time B spends with her father is spent either at his workshop or at activities of interest to the husband regarding models. I accept that B shares her father’s interest in such things but I am concerned that Mr Jardine does not have the same ability to subjugate his interests to those of B as the wife does.
The most telling aspect of this is in respect of financial matters. There can be no doubt that, since the parties’ separation, B has lived predominantly with her mother. Ms J has a modest income but has been compelled to supply most of B’s financial needs. As a PAYG tax payer, her income is readily ascertainable. Given his self-employed status, the same cannot be said of Mr Jardine’s income.
At the present time, Ms J’s child support income is $29,987.00 per annum. Mr Jardine’s child support income is $7,167.00. This results in Ms J paying a monthly amount of child support to Mr Jardine of $11.50. In the past, Mr Jardine has paid only modest amounts of child support to Ms J.
I can understand why Mr Jardine wishes to pursue his passion and make it his source of income, as well as his hobby. It may also be the position that Mr Jardine’s temperament makes it difficult for him to be employed by others. However, at the present time, the fact remains that Mr Jardine is not providing for B, other than during the periods when she is actually living with him. Against this background, I am concerned at the husband’s proposal that B live with him for more time than currently.
Having considered the various matters, which fall for consideration under these two criteria, I consider that the wife is better placed to provide for B’s wider needs, particularly her emotional needs, although the husband may have a greater insight into B’s specific dietary needs.
In addition, I consider that Ms J has a broader and deeper level of insight into the bundle of responsibilities which go with being a parent. She seems to me to be a caring and selfless parent. Overall, my assessment under these two headings favours a continuation of the current arrangements for B’s care.
f) The child’s maturity, sex, lifestyle and background
h) Aboriginality
I do not think there is anything in B’s age, sex, lifestyle or background, which is relevant for consideration under either of these criteria.
j) Family violence
k) Any family violence order
These are not relevant considerations in the present case.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive, in both financial and emotional terms, and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant.
Whatever is the outcome of these proceedings, one of the parties will be bitterly disappointed. Regrettably these proceedings have been outstanding for too long. This has lead to uncertainty for both B and the parties concerned. Accordingly, a decision needs to be made, one way or the other.
The husband has indicated a desire to take the proceedings further, if he is unsuccessful in his current application regarding B. This is his entitlement. However, this of itself is no reason to make the orders which he currently seeks.
The main advantage of perpetuating the current status quo is that it is an arrangement with which B is familiar and which she has expressed a preference for. In my view, it is the outcome which provides the most stability for B and, as such, is the one least likely to lead to the institution of further proceedings, notwithstanding the husband’s dissatisfaction with it.
Conclusions
Before I make any parenting order, I am required to consider whether the presumption of equal shared parental responsibility applies. In this case, there are no issues of abuse or family violence. In addition, up to this stage, both parties have been extensively involved in caring for B and both undoubtedly love her. Both have much to offer B, both now and in future.
In such circumstances, it does not seem appropriate to me that one parent should be promoted over the other in respect of parental responsibility in regards to B. Accordingly, it is my view that it would be in the best interests of B that her parents have equal shared parental responsibility for her.
An order which provides for shared parental responsibility requires that the parties to it consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
One of the major issues of controversy between the parties regards which school B should attend. This issue does not stem from any religious or ideological ground but rather is based on matters to do with personal convenience. In future, I consider that there are unlikely to be any significant areas of dispute between the parties regarding major long term issues. Rather, I consider it important that the court should emphasise to the parties concerned that they are both to be involved in sharing responsibility for B.
The next part of the exercise is to consider what should follow from the presumption. In my view, a proper consideration of the various section 60CC factors indicates that it would not be in B’s best interests for her parents to have either a shared care arrangement for her or that she should spend substantial and significant periods of time in her father’s care.
I reach this view for the following reasons. It is not B’s wish. Further, B is well settled in her current living arrangements. Precipitate change in her living arrangements is likely to be unsettling for her. Further, I consider that Ms Jardine is better placed than the husband to provide for B’s needs, particularly her emotional needs.
In addition, it is my view that both a shared care arrangement and a substantial and significant time arrangement are not reasonably practicable in all the circumstances of this case. Mr Jardine’s work arrangements are idiosyncratic. In my view, he is unlikely to moderate them to enable him to be more able to provide care for B in an effective and child focused way.
The parties communicate poorly with one another and regard each other with suspicion. In particular, the husband’s view of the wife, both as a person and as a parent, is essentially negative. As such, the parties’ present capacity to implement either a shared care arrangement or a substantial and significant time arrangement appears to me to be compromised.
The parties do not have anywhere near the ideal circumstances, which would make the assumption of a shared care arrangement by the court largely automatic. To the contrary, there are many logistical factors, which militate against such an arrangement. The most significant of these difficulties are the husband’s work commitments and the parties’ poor parenting relationship.
For all these reasons, I have come to the conclusion that I should make orders in respect of B’s care along the lines advocated by both the wife and Mr Rudzitis, the court appointed expert in this case, whose opinion I share, after having considered all of the relevant factors in the case.
Both parties agree that the mid-week Wednesday arrangement is not working. B has expressed a desire to spend a longer weekend with her father. I will alter the orders to accommodate these changes. Otherwise there are no controversies between the parties regarding holiday and special occasion arrangements. Overall, I think these arrangements will enable B to have a meaningful relationship with both her parents and will best serve her interests.
Property issues
a) Chronology
The husband was born on in 1960. The wife was born in 1967. The parties began to live together in April of 1994 and married in April 1995.
There is no dispute between them that they separated on 8 November 2005, when the wife and B left the former family home situated at Property [M]. The marriage between the parties was dissolved on 1 March 2007.
Neither party seems to have any particular tertiary qualifications or any special work skills. B is their only child. She was born in 1998. Apart from a mild heart murmur, it seems that B has no special specific needs.
b) The parties property at the commencement of their relationship
Each party had assets of modest value, at the commencement of their relationship. Both had similar savings of around $3,000.00 and some superannuation. The only real difference appears to be that the husband had a life insurance policy. In his affidavit the husband attributes the policy’s surrender value as being $10,000.00. In his oral evidence, he asserts its value was closer to $18,000.00, when it actually matured, which sum he says was absorbed into the marriage.
In my view, whatever disparity there was between the parties in respect of their initial capital is minor and certainly not of such magnitude that it merits being given “special recognition” by the court now.[21]
[21] See Pierce & Pierce (1999) FLC 92-844 at 85,811
At the start of the parties’ relationship, the wife was employed on a full-time basis as a receptionist by [X], the position she continues to hold. The husband was employed as a truck driver.
Both are likely to have been modest wage earners. Certainly, the husband does not seem to have been able to accumulate significant assets prior to the commencement of the parties’ relationship. He was thirty four when the parties met and the wife was twenty seven.
c) The parties’ work history
As previously indicated, the wife has worked for the same employer throughout the parties’ relationship and subsequently to it. She took a brief period of maternity leave, around the time of B’s birth, but returned to her employment when B was aged around four months of age. I accept the wife’s evidence that financial necessity compelled her to return to work, although it was originally anticipated that she would take around twelve months maternity leave.
One of the major areas of dispute between the parties concerns the husband’s level of remuneration during the marriage. It is his position that his wages were generally superior to those of the wife, who often worked on a part-time basis. In addition, he denies any suggestion that he was unemployed for significant periods of time during the marriage.
The husband has not provided any extensive documentary evidence in respect of his income during the marriage. It is his position that he earned between $700 to $800 gross per week in the early years of the marriage, which increased to somewhere between $1,000 and $1,200 gross per week in the marriage’s latter years, between 2003 and 2004. He has provided his bank book in support of this assertion.[22]
[22] See Exhibit RJ4 to the husband’s affidavit filed 7 March 2008
The wife has provided her notice of income tax assessment in respect of the years from 1998 to 2006. These documents show a modest income in the $20ks, apart from 1999, following B’s birth.[23] The husband has not provided similar taxation documentation.
[23] See Exhibit JMJ16 to wife’s affidavit filed 22 February 2008
I accept that at times the husband’s income was greater than the wife’s was. But it also seems likely to me that he had periods when he was not working. However, I also accept that the wife ensured that the required mortgage payments, both on the parties’ first home situated at Property [A] and then at [M] was paid from her income, by way of a direct debit. Her wages may have been more modest than those of the husband but it seems to me that they were more reliable and were utilised for family purposes.
I accept the wife’s evidence that the husband’s periods of self-employment were generally unsuccessful. Accordingly, I am unable to reach the conclusion that the husband’s overall financial contributions by way of wages were grossly disproportionate to the wife’s contributions.
On balance, I consider that the parties’ respective contributions in this area are relatively equal. Both parties worked during the marriage. At times, it seems clear that there were periods of great financial austerity. These periods seem to relate to times when the husband was not working. It also seems to be the case that the parties often found it difficult to make ends meet. This tends to suggest that the husband’s income was not as reliable as he now asserts.
d) Contributions by the parties’ relatives
The husband is greatly critical of the wife’s parents for compelling the parties to sell their first home at Property [A] in November of 1998, at a loss of $3,000.00. This property was purchased, in September of 1994, for $56,000.00. The parties provided a deposit of $3,000.00 and borrowed the remainder of the funds from the Adelaide Bank.
As previously indicated, I accept that the wife ensured that the necessary recurrent mortgage payments were met by means of a direct debit from her weekly salary. It is also the wife’s evidence that she provided the majority of the deposit moneys. Whether this was so is difficult to gauge now. Certainly, there is no evidence to indicate that the husband’s life insurance policy was utilised in respect of the purchase of this property. It also seems to be the case that the parties were unable to make any great in-roads, on the mortgage, during the course of their ownership of the property.
[29] This is the value ascribed to the collection by the husband. The wife believes the collection is likely to be worth significantly more. The husband is a canny collector of models. As his evidence indicates, there is a significant market for such items amongst other enthusiasts. The husband has been adding to his collection over many years. In these circumstances, it is likely that the value ascribed to the collection by the husband is a conservative one. However, in the absence of any formal expert valuation I believe it would be imprudent of me to utilise the value pressed by the wife.
In assessing the moneys due to Ms J, I have accepted her evidence that the sum advanced was $20,000.00 and it was a sum intended to be repaid. Although the wife asserts that the figure was $15,000.00, she does not vigorously assert that Ms J is wrong.
In regards to the other amount advanced by Ms J and the significant amounts advanced by Mr and Ms S, for the reasons previously provided, I have come to the conclusion that these items are not to be regarded as loans, which the parties are required to repay.
Rather, I think that the various sums advanced must be regarded as gifts intended to advance the parties and provide security for them as a family. In my view, in these circumstances, it is more appropriate that the various sums in question be taken into account when an assessment of the parties’ various financial contributions is made.
For the reasons already provided, it is not possible to ascribe exact valuations to the parties’ respective household contents. As such, these items cannot be taken into account.
I concede that there is a significant degree of artificiality regarding the value ascribed to the husband’s various businesses. The husband was in something of a dilemma regarding the business valuation aspects of the case. On the one hand, his pride in the businesses caused him to be enthusiastic about their value. On the other hand, given the nature of these proceedings, he did not wish to place too high a value on the various businesses concerned. In these circumstances, I accept what I consider to be the conservative values put forward by the wife and her counsel as being the most equitable ones to use in this case.
I have placed the parties’ superannuation in a separate pool to their other assets, in accordance with the principles laid down by the Full Court of the Family Court in C.[30]
[30] C & C (2005) FLC 93-220
Step Two – assessment of contributions
There were no significant discrepancies between the parties, in terms of their respective financial contributions, at the outset of their marriage. Both came into the marriage without any significant items of property and largely free of debt. Accordingly, these are not significant factors in this case.
Both parties were largely in paid employment during the vast majority of their marriage. From time to time, the husband earned more than the wife did. However, she was consistently employed, with the same employer. Her modest wage was secure and reliable. It was utilised to ensure that the parties’ recurrent mortgage payments were always paid.
On the other hand, the husband did find himself unemployed from time to time. In the latter stage of the parties’ relationship, following the purchase of the husband’s business, the husband’s income became problematic. In terms of the parties’ personal financial contributions during the marriage, provided by way of direct income, I would assess the parties’ respective contributions as being more or less equal.
As I have found, Mr Jardine made significant contributions by the work he performed at the [M] property. On the other hand, the wife cannot be regarded as being a passenger in the parties’ marriage. She worked to the maximum extent of her abilities. She parented B. She performed domestic duties, as did the husband.
In the overall context of the parties’ marriage, I am able to differentiate between the parties’ various non-financial contributions. Both did what they could and contributed where necessary. I am satisfied that the parties’ marriage was one of equals, to which both contributed in equal measure.
For reasons already provided, I discount any suggestion that one or other of the parties should be regarded as having contributed in a negative sense, to the acquisition and preservation of their property. The Full Court of the Family Court has discouraged the use of the concept of “negative contributions”.[31] In this case, both parties have most likely made foolish financial decisions. However, in my view, none of these actions are of such moment as to call for either of the parties contributions to be subjected to any discount.
[31] See SJS & NS (2005) 33 FamLR 109 at 119
Accordingly, the significant weight in this case falls on how the court should deal with the respective contributions made both by Mr and Ms S and Ms J and on the assessment of the parties’ various contributions, in the period since the parties separated.
The [M] property was purchased in August 1999, after the parties had been married about four years. B was just over twelve months of age at the time. The early years of the parties’ marriage had not been successful in a material sense. Their first home at Property [A] had been sold at a loss. I accept that they were struggling fiscally at the time and these financial pressures were obviously intensified by their responsibility to provide for B.
It is in this context that the purchase of the [M] property must be examined. I think it incontrovertible that, without the contributions of Mr and Ms S, the property could not have been acquired by the parties. I think it is also clear that Mr and Ms S wished to provide their daughter and grandchild with a measure of security into the long term, which could only be provided by the provision of a home for them.
In this sense, Mr Jardine was largely incidental. I am satisfied that the gift of the land at [M] and the other donations which followed it were intended by Mr and Ms S to benefit primarily only the wife and B. As such, I am satisfied that these contributions should be taken to have been made on behalf of the wife alone.[32]
[32] See Gosper & Gosper (1987) FLC 91-818 and Kessey & Kessey (1994) FLC 92-495
Although I concede that, at this juncture, it is difficult to ascertain precisely the exact motive of Mr and Ms S in giving such considerable sums to the parties, particularly in the absence of any explicit documentation, in my view, it is appropriate for the court to look at the nature of the relationship between the wife and her parents to resolve this issue.
The wife has worked for her father for most, if not all, of her adult life. She has limited vocational qualifications. She has always been a modest income earner. I mean her no disrespect but I do not consider her to be a sophisticated person, in terms of financial matters.
Accordingly, I suspect that her parents regarded Ms Jardine as being somewhat vulnerable financially and they wish to provide her and their granddaughter with a modicum of financial security in the long term. These are the consequences of the understandable and natural ties of blood and affection between them. As such, I believe it is appropriate that the court should follow the general approach that a parental gift is to be treated as a financial contribution made on behalf of the child of the donor parent.
In all the circumstances of this case, I am satisfied that the motivation leading to the various gifts made by Mr and Ms S was the parent/child relationship, which they shared with Ms J. As such, these considerable gifts must be regarded as contributions of Ms J but not also of
Mr Jardine.[33]
[33] See Pellegrino v Pellegrino (1997) FLC 92-789 at 84,726-8
The various sums donated by Mr and Ms S in 1999/2000 represent around 28% of the parties’ net non-superannuation worth at the present time. As such, this contribution must be considered a significant one in the overall context of the case.
As I have earlier observed, it is my view that without this contribution, the parties would be significantly worse off now, by any material reckoning. It is unlikely that they would have been unable to purchase an alternative piece of real estate. The husband would have been unable to purchase his business, which was financed from equity in the [M] property.
This significant injection of capital, which must be accounted a contribution made on behalf of the wife, occurred some years ago now. In the past, there has been a tendency to suggest that such contributions of capital are “eroded over time” by other factors, particularly home making contributions. The Full Court has pointed out that such a formulation is erroneous.
Rather, it is necessary for the court to weigh any initial or other contribution with all the other contributions made by both parties during the marriage to reach an outcome, which is both “appropriate and just and equitable”.
In particular, having looked at all the circumstances of a case, one particular contribution “may be so disproportionate as to other contributions as to merit special recognition”. In assessing whether any particular financial contribution merits such special recognition, the Full Court has directed that regard be had to the use to which such a contribution is put.
As I have already indicated, it is my impression that Mr and Ms S carefully targeted their gifts so as to ensure that the wife had access to a secure and appreciating asset. This has proved to be the case. The [M] property is by far the most significant asset of the parties, when the court is called upon to divide their marital assets. Accordingly, it is my view, that the wife’s contributions, received via her parent’s various gifts, merit special recognition in the overall circumstances of this case.
The moneys advanced by Ms J, in January 1999 ($20,000.00), which enabled Mr Jardine to purchase his truck must also be recognised as a contribution made exclusively on behalf of the husband. However the contribution, although significant, in my view cannot attract the same degree of recognition as those accorded to the gifts made by Mr and Ms S.
Firstly and most obviously, the gift is not of the same magnitude. Secondly, the gift has not resulted in the same accumulation of property now. The truck and the business to which it related are gone. As such, the force of the contribution has dissipated. The same cannot be said of Mr and Ms S’s gift.
The parties separated around 28 months ago. It is a considerable period of time. It has been a period of financial austerity for them both, but particularly the wife. She has had to find alternative accommodation for herself and provide for B with little, if any, financial assistance from the husband.
On the other hand, the husband has been able to remain living in the former family home, albeit that he has had to pay the recurrent mortgage payments on it. However, the parties’ equity in the former family home has enabled Mr Jardine to continue to operate his business, which is his occupation of choice, although not particularly helpful to either the wife or B. In my view, the wife’s post separation contributions have been significantly greater than those of the husband.
I accept that the husband has made significant contributions during the marriage. These include his income as a truck driver, both on an employed and self-employed basis. In addition, he provided care for B and discharged some of the parties’ domestic responsibilities. He also, through his labours, improved the [M] property.
However, I have come to the conclusion that the wife’s various contributions, during the marriage, should be regarded as being markedly superior to those of the husband, as they have resulted in the acquisition, by the parties, of the vast bulk of their property, primarily in the form of their equity in the [M] property.
The wife was also in the paid workforce during the parties’ marriage. Specifically her income was channelled to ensure that the parties’ obligations in respect of their joint mortgage were met. Undoubted she worked hard, both before and after the parties’ separation. She also parented B and performed household tasks. The greatest differentiation, between the parties’ contributions, is the monies advanced by Mr and Ms S.
Bearing in mind all these various factors, I have come to the conclusion that the wife should receive in the vicinity of 65% of the parties’ pool of non-superannuation assets, at the end of the second stage of the process.
The wife seeks to retain her superannuation assets and for the husband to retain his. As matters currently stand, there is a marked discrepancy in the level of the parties’ respective superannuation. The wife holds in her sole name 72.38% and the husband 27.62% in his sole name of the parties’ total superannuation holdings.
No doubt these differing amounts reflect the parties’ different employment history. The wife has always been in paid employment and so her employer has made regular contributions of superannuation. For extended periods of time, the husband has been in self-employment and has not been so rigorous in making regular contributions towards his superannuation.
The husband has not formally sought any split be made, in his favour, from the wife’s superannuation entitlements. Rather, his application seeks a division of 50% in his favour in respect of all the parties’ accumulated assets. I assume he refers to both superannuation and non-superannuation assets.
The court has a discretion as to how superannuation interests will be treated in a particular case. However, the court must still assess the parties’ various contributions towards the acquisition and preservation of the superannuation concerned, including indirect contributions and contributions made in the parental and home making context. In arriving at any assessment of these various contributions, the court must be guided by considerations of justice and equity.[34]
[34] See C & C (supra) at 79,646
The rationale behind the majority’s reasoning in C appears to be that, by reason of its special nature, it is often appropriate to assess contributions to superannuation interests separately to contributions made towards other more “conventional” assets. This is so one or other of the parties’ contributions to that superannuation may be given “proper recognition”. In order to ensure this “proper recognition”, it is necessary for the court to consider what is the “real nature” of the relevant superannuation interest – namely whether it is likely to be received as a recurrent pension or a lump sum or in some other manner.
The evidence does not disclose what the parties’ respective level of superannuation at the time of the commencement of their relationship was. The evidence does however reveal that Mr S made a significant contribution towards the wife’s superannuation. He provided her with the sum of $3,000.00, which was matched by an equal contribution from the Commonwealth Government.
Overall, I do not think it would be unjust or inequitable to assess the parties’ respective contributions towards their superannuation alone as being in roughly the same proportions as that which I have assessed in regards to their other property.
Step three – section 75(2) factors – the prospective needs of the parties
The husband is forty-seven years of age. The wife is forty. I do not think the discrepancy in their age is of any great significance. The husband has suffered a life threatening illness and has ongoing health issues, in the form of diabetes and heart disease. He must be watchful about his diet and physical well being in future. The wife appears to enjoy good health.
I have not been provided with any expert evidence regarding the husband’s life expectancy. He personally presents as someone very conscious of his health and as being proud of the strides he has made in regaining his physical vitality. He does not assert that he is not able to devote himself fully to his business. To the contrary, he asserts he works long hours and is happy to do so. These factors marginally favour the husband [section 75(2)(a)].
The wife is a receptionist employed by a firm associated with her family. She earns a modest income of around $36,000.00 per annum. Although her employment is secure, her prospects of changing her employment to a more beneficially remunerative one or of advancement in her present position are slight. Accordingly, she is likely to always remain a low income earner.
The husband also currently earns a modest income, derived from his various business interests. However, he is a great enthusiast for the potential of these businesses. I suspect that this enthusiasm may be misplaced but I am unable to make a definitive finding in this regard. On balance, it seems likely that Mr Jardine will also remain a low income earner.
However, this will be his choice. He will also have the benefit of doing something he loves and in which he is vitally interested. As such, work will not be a burden to him. On balance, I do not think that the considerations which fall under this heading greatly favour one party or the other [section 75(2)(b)].
As a result of the decision I have made, B will live predominantly with the wife. B is not yet ten years of age, accordingly, she has many years during which she will be financially dependent upon her parents.
In all the circumstances, the burden of providing for B will rest heavily on the wife. She does not have a large income or other financial resources, which will alleviate this noteworthy burden. This is a significant factor, which favours the wife [section 75(2)(c)].
The wife, of course, does not bear the financial responsibility for maintaining B alone. She is entitled to claim child support from the husband. However, it must not be forgotten that the payment of child support, in no way compensates the principal care providing parent for the loss of career opportunity and the inevitable restrictions upon working hours and choice of work, which the obligation to care for a child entails.[35]
[35] See Clauson & Clauson (supra) at 81,911
The wife is fortunate that she has an understanding employer, who enables her to structure her work commitments around her responsibilities to parent B. She is able to work on a part-time basis. Other family members are available to care for B, during school holidays. However, although I consider it unlikely that she would do so, the wife’s responsibilities for B preclude her from seeking alternative employment. This has implications for the wife’s level of remuneration for the foreseeable future.
The husband is currently growing his business. He will be able to do so unencumbered by any day to day responsibility for B. He will be able to attend to the internet aspects of his business during evenings. If, as he asserts, the various businesses are likely to be successful, he will have ample time to attend to them.
Between March of 2006 and December of 2007, child support in respect of B has been calculated on the basis that the parties themselves have had a similar child support income in the mid to high $20k’s. This has resulted in Mr Jardine being assessed to pay Ms Jardine a monthly amount of child support ranging between $117.58 and $135.67.
The assessment changed on 10 December 2007. The wife was assessed on the basis of a child support income of $29,987.00. The husband’s child support income was assessed as being $7,167.00. As the husband was accepted to be a major contact parent to B this resulted in
Ms Jardine being assessed to pay Mr Jardine a monthly amount of child support of $11.50.
As I have earlier observed, one of the attractions of the husband’s proposals for B’s care, from his point of view, was that it would free up the wife to seek full-time employment. In addition, from his perspective, it would leave him free on weekends to attend to his model activities.
At the present time, self employment seems to enable the husband to reduce his level of child support income. My apprehension is that the husband is currently not well motivated towards the wife and as such has not been particularly cooperative in regards to the provision of financial support for B.
The weight to be attached to a child support assessment will vary in the circumstances of each particular case concerned. The court is directed to look at the amount of the assessment, the financial circumstances of each of the parties, the needs of the children concerned and whether child support is likely to be paid regularly and at an adequate rate in future.[36]
[36] See Clauson & Clauson (supra) at 81,911
The husband is likely to derive a significant proportion of his income, if not all, from his business activities. His level of remuneration will not be as readily ascertainable as if he was a PAYG tax payer. This currently seems to be the position, as the applicable assessment of child support demonstrates.
Accordingly, in this case, I have concerns that the wife will not receive child support regularly and that the amount paid will not be adequate to provide any significant component of B’s financial needs. As such, the overwhelming responsibility for B’s financial support will reside with the wife alone and this will be a responsibility which she will have a significant difficulty in discharging. As her evidence shows, she has had considerable assistance from her parents, in this regard, since the parties separated. This is a very important factor, which strongly favours the wife [section 75(2)(na)].
Neither party has re-partnered since the parties separated. As such, neither has a legal responsibility to support any other person, apart from B.
It would be the husband’s preference to retain the former family home. He concedes that his financial circumstances preclude this from occurring. He would like to be able to purchase a property for himself in the [M] area. In the longer term, the wife to would like to be in a position to purchase accommodation for herself and B.
It is the usual corollary to the end of a marriage that the parties to it suffer some measure of financial hardship. Two individuals cannot live as cheaply as a couple, particularly when they have to provide separate accommodation for themselves. In this case, I am satisfied that both parties have suffered and will continue to suffer a significant decrease in their standard of living [section 75(2)(g)].
Given their respective ages, it is my assessment that both parties have many years of useful and productive life before them. As such, neither has any pressing need to consider retirement planning at this stage. Theoretically, at this time, both have time to accrue further superannuation and to make financial provision for their later years.
However, at the present time, there is a marked disparity in the parties’ respective levels of superannuation, in the wife’s favour. She is in the type of employment where her employer will continue to make regular, if modest, contributions of superannuation for her benefit. The husband is self employed. His attention is focused on the day to day management and growth of his various businesses. In these circumstances, he is unlikely to give high priority to providing for his retirement, through superannuation. These factors favour the husband [section 75(2)(f)].
The marriage between the parties was one of around ten years in duration. In my assessment, it has not significantly effected the earning capacity of either of the parties. The wife has retained the same type of employment throughout. I suspect that, if the husband wished, he could obtain other employment, apart from self-employment in his various businesses. However, he is not motivated to do so currently. These are not significant considerations in this case [section 75(2)(k)].
Conclusions on section 75(2) factors
I am satisfied that, upon an overall assessment of the relevant section 75(2) factors, a further adjustment in favour of the wife is appropriate. The greater difficulty is in assessing what that further distribution should be, in percentage terms, given the reasonably small extent of the property pool and the fact that it is unlikely to satisfy the needs of both parties.
It is all very well to talk in percentage terms, so far as orders are concerned, but at the end of the day, what matters to the parties is what the orders mean in dollars and cents and what affect they have on their respective long term aspirations. In cases such as this one, where the pool of assets available to be distributed between the parties is modest, the proper adjustment, in respect of factors after contribution, often becomes more critical.
For these reasons, the Full Court has commented that the centre of gravity, in the determination of property cases, has shifted towards the assessment of section 75(2) factors and, as such, courts such as this one, have been directed to give the provisions concerned “real rather than token weight”.[37]
[37] See Waters & Jurek (1995) FLC 92-635 at 82,376
The wife is a forty year old unskilled worker, living in rented accommodation, with the primary financial responsibility for caring for a ten year old child. Her prospects of career advancement or retraining are slight.
For the reasons provided, I am not confident that Mr Jardine will willingly take up his responsibility for providing for B financially. He is likely to remain in self-employment and as such his child support income is likely to be low.
In all these circumstances, I assess that the wife is entitled to a further distribution of the parties’ property in her favour. I calculate the appropriate figure, bearing in mind the size of the asset pool, as being 10%. In my view, given the extent of the property pool, it would be appropriate to apply this figure to both the parties’ non-superannuation and superannuation assets.
Conclusions – section 79(2) – is this a just and equitable outcome
The final step in determining property proceedings is to stand back and consider whether the proposed result represents a just and equitable outcome. Considerations of justice and equity must inform each step of the court’s process and the overall result.
As a result of the first step of the process involved in dividing the parties matrimonial property, I have calculated that the parties’ net non-superannuation assets to be $324,000.00 and their superannuation to total $58,748.12.
As a result of the second and third steps involved, I have determined that the wife should receive 75% of each sum. 75% of the non-superannuation assets is represented by the sum of $243,000.00. 75% of the superannuation assets is represented by the sum of $44,061.09.
The husband concedes that the [M] property must be sold, in order to enable the parties to realise their proper entitlements, as he himself has no capacity to borrow a sum sufficient to secure the wife’s interest in the property and she has no interest in returning to it.
Accordingly, the above mentioned figures must serve as a guide only, as the property may secure a possibly greater or lesser amount than the value presently attributed to it by the parties, when it is sold. In addition, there will be expenses related to its sale.
Nominally, as the figures currently stand, the wife needs to receive a sum of $243,000.00, from the sale of the property to achieve a 75% distribution of property in her favour.
The husband will retain assets nominally worth $56,000.00, in the form of his businesses and model collection. For reasons already provided, I consider that these valuations are likely to be conservative, particularly so far as the model collection is concerned. These items need to be taken into account in the calculation of any sums payable to the parties from the sale of the former family home will have to take into account these sums. Nominally, the wife is entitled to 75% of their total value, which translates to a sum of $42,000.00.
This outcome leaves the wife in receipt of the larger proportion of the parties’ marital capital. In my view, given her greater contributions towards the property, particularly in the form of the sums contributed by her parents, in excess of $90,000.00 and her greater prospective needs, this amounts to a just and equitable outcome. It will give her some prospects of being able to purchase alternate accommodation for herself.
The husband is likely to receive a small amount of capital, which is unlikely to be sufficient to enable him to purchase a home for himself, without significant borrowings, if at all. However, a significant advantage of this outcome, from his point of view, will be that he will retain his business with the overdraft facility associated with it fully discharged. The husband sees his financial future in the business. It is his passion and abiding interest. He believes it will provide him with a reasonable financial future. In all the circumstances, I consider this an appropriate and equitable outcome.
In terms of the parties’ superannuation, which in total is a modest amount unlikely to be sufficient to support the parties in retirement, as matters currently stand, the husband has around 27.62% of the total. In all the circumstances, it is unnecessary to make any further adjustments or split in regards to the parties’ superannuation.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and five(305) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 24 April 2008
and Clauson v Clauson (1995) FLC 92-595
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3
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