Johnson and Johnson
[2014] FCCA 734
•17 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOHNSON & JOHNSON | [2014] FCCA 734 |
| Catchwords: FAMILY LAW – Parenting – property settlement. |
| Legislation: Family Law Act 1975, ss.61DA, 75(2) |
| Jones v Dunkel (1959) 101 CLR 298 Weir & Weir (1993) FLC 92-338 Biltoft and Biltoft (1995) FLC 92-614 NHC & RCH [2004] FamCA 633 |
| Applicant: | MS JOHNSON |
| Respondent: | MR JOHNSON |
| File Number: | PAC 4746 of 2011 |
| Judgment of: | Judge Dunkley |
| Hearing dates: | 28, 29 and 30 October 2013 and 9 December 2013 |
| Date of Last Submission: | 9 December 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 17 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wong |
| Solicitors for the Applicant: | Cara Marasco & Company |
| Counsel for the Respondent: | Mr Watkins |
| Solicitors for the Respondent: | Sage Solicitors |
ORDERS
All prior parenting orders are discharged.
The parties shall have equal shared parental responsibility for X born (omitted) 2003 and Y born (omitted) 2006 (“the children”).
The children shall live with the mother.
The children shall spend time with the father:
(a)During school term time:-
(i)In week 1 and each alternate week thereafter from after school Thursday to before school Monday commencing the first Thursday of each term;
(ii)In week 2 and each alternate week thereafter from after school Wednesday to before school Thursday commencing the second Wednesday of each school term;
(iii)For the first half of school holidays in years ending in an even number;
(iv)For the second half of school holidays in years ending in an odd number;
(v)At such other times as the parties agree.
The children spend time with the father, if they are not already spending time with the father on those days, on the following days:
(a)3pm Christmas Day until 3pm Boxing Day commencing 2014 and each alternate year thereafter;
(b)3pm Christmas Eve until 3pm Christmas Day commencing 2015 and each alternate year thereafter;
(c)9am to 5pm on Father’s Day each year;
(d)3.30pm to 8pm on each of the children’s Birthdays and the father’s Birthday;
(e)3pm Easter Saturday until 3pm Easter Sunday commencing 2014 and each alternate year thereafter;
(f)3pm Easter Sunday until 3pm Easter Monday commencing 2015 and each alternate year thereafter; and
(g)At any other times as agreed between the parties.
The children spend time with the mother, if they are not already spending time with the mother on those days, on the following days:
(a)3pm Christmas Eve until 3pm Christmas Day commencing 2014 and each alternate year thereafter;
(b)3pm Christmas Day until 3pm Boxing Day commencing 2015 and each alternate year thereafter;
(c)From 3.30pm until 8pm on each of the children’s Birthdays and the mother’s Birthday;
(d)3pm Easter Sunday until 3pm Easter Monday commencing 2014 and each alternate year thereafter;
(e)3pm Easter Saturday until 3pm Easter Sunday commencing 2015 and each alternate year thereafter;
(f)9am until 5pm on Mother’s Day; and
(g)At any other times as agreed between the parties.
The father shall have telephone communication with the children each Tuesday for up to 10 minutes between 6.30pm and 7.00pm by telephoning either the landline in the mother’s home and if that is not answered by telephoning the mother’s mobile telephone.
The mother shall have telephone communication with the children on Saturdays when they are not living with her for 10 minutes between 6.30pm and 7.00pm by telephoning the father’s landline and if it is not answered by telephoning the father’s mobile telephone.
Each party shall keep the other party advised on their residential address, landline telephone number, mobile telephone number and email address.
Neither party shall denigrate the other party or a member of that party’s family or household in the presence or hearing of the children nor permit the children to remain in the presence or hearing of any person who engages in such denigrative behaviour.
The parties shall be authorised to obtain all information in relation to the children’s education and/or participation in educational, day care institution, and/or sports, recreational and extracurricular activities, and, each of the parties shall be invited to participate in all such events they are able to attend.
The parties shall do all things and give all consents necessary to cause (omitted) Conveyancing of (omitted) to release the proceeds of sale of the former matrimonial home to the wife.
The husband shall pay to the wife the sum of $52,000.
The husband is declared solely entitled to:-
(a)the business known as (business omitted);
(b)the plant and equipment used by that business;
(c)his motor vehicles;
(d)his shares and bank balances
(e)the (omitted) Boat and;
(f)any personalty, furniture and household effects in his possession.
That the husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
That in the event that either party refuses or neglects to execute any deed or instrument within fourteen (14) days of being requested to do so then the Registrar of the Court be appointed pursuant to section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
It is ordered that subject to the preceding the husband and wife are to have the sole right, title and interest in:
(a)Any chattels, goods, furnishings and other property not previously dealt with as part of these orders which are, at the date hereof in their possession respectively;
(b)Any monies, shares, debentures and superannuation entitlements not previously dealt with as part of these orders which stand in their sole name respectively at the date hereof.
Dismiss all outstanding application and responses and remove all issues from the list of cases awaiting finalisation.
That pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Johnson & Johnson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4746 of 2011
| MS JOHNSON |
Applicant
And
| MR JOHNSON |
Respondent
REASONS FOR JUDGMENT
Before the Court are parenting proceedings in relation to two children X born (omitted) 2003 and Y born (omitted) 2006 (“the children”). The children’s parents are the applicant Ms Johnson (“the mother or wife”) and Mr Johnson (“the father or husband”).
Also before the Court are property settlement proceedings involving a dispute between the parties about the division of the matrimonial pool of assets.
The mother and father married in (omitted) 2007 and separated under the same roof in either December 2010 or mid-2011. There is a factual dispute between the parties about this date. The resolution of which has no impact on the proceedings. The parties then remained living under the same roof until the mother obtained an order for exclusive occupation on 27 September 2011 from the Local Court at Manly.
The children, pursuant to orders made by the Local Court at (omitted) on 27 September 2011, live with mother and spend time with the father as follows:
a)In week 1:
i)From after school until 7.30pm on Wednesday; and
ii)From after school Friday until Monday before school
b)In week 2:
i)From after school Wednesday until before school Thursday.
c)The second half of all school holidays.
The child X has been diagnosed with Epilepsy.
The mother has two children, A, aged 21 and B aged 19, from a previous marriage.
Orders sought
The mother
The mother seeks, on a final basis, the following orders (as set out in the case outline prepared by her Counsel):
Parenting
1)That the wife have sole parental responsibility for the children, X born (omitted) 2003 and Y born (omitted) 2006.
2)That the children live with the wife.
3)That the children spend time with father as follows:
a)During NSW school terms in a two week cycle as follows:
I.In week 1:
a.from after school Friday until before school Monday;
b.from after school Wednesday until 7.30pm.
II.In week 2 from after school Wednesday until before school Thursday.
b)For the second half of each school holiday period;
Property
4)That the wife retain to the exclusion of the husband the total net proceeds of sale of the property and that this order hereby serves as authority to (omitted) Conveyancing of (omitted) to release same to the wife forthwith.
5)That the husband pay to the wife, within 28 days, the sum total of $20,012.71.
6)That the husband indemnify and keep the wife indemnified in relation to any debts owed by (business omitted) and/ or the company to any third-party.
7)That subject to these orders the husband shall retain to the exclusion of the wife all assets and/ or items presently in his possession and/ or standing in his name, including but not limited to:
I.Cash in bank accounts in his possession;
II.Securities including shares, warrants, debentures and alike;
III.Superannuation;
IV.Furniture;
V.Jewellery;
VI.Items of personalty;
VII.Equipment and machinery including grader;
VIII.Shares in the company;
IX.(business omitted);
X.Boat;
XI.Vehicles;
XII.Quadbike;
XIII.Ride on mowers;
XIV.Items removed from the property; and
XV.Furniture husband removed in October 2011.
8)That subject to these orders the wife shall retain to the exclusion of the husband all assets and/ or items presently in her possession and/ or standing in her name, including but not limited to:
I.Cash in bank accounts in her possession;
II.Securities including shares, warrants, debentures and alike;
III.Superannuation;
IV.Home contents and furniture;
V.Jewellery; and
VI.Items of personalty.
9)That, unless otherwise ordered, each party be liable for and indemnify the other party from any obligation that he or she may have regarding any debt or liability standing in his or her own name.
10)That each party do all such things and sign all such documents so as to give effect to these orders.
11)That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, the registrar of the court is appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
The father
The father seeks, on a final basis, the following orders (as set out in the short minutes of parenting orders (Exhibit ‘A’) and the short minutes of property orders prepared by his Counsel):
Parenting
1) That the children X born (omitted) 2003 and Y born (omitted) 2006 (“the children”) live with the mother.
2) That the parties have joint parental responsibility of the children.
3) That the children spend time with the father as follows:
a) During the NSW school terms:
I.Each Wednesday from after school until before school Thursday; and
II.Each alternate weekend from after school Friday until before school Monday.
b) During the NSW school holidays:
I.For the first half of the school holidays in even years; and
II.For the second half of the school holidays in odd years.
4) That the children spend time with the father, if they are not already spending time with the father on those days, on the following days:
a) 3:00pm Christmas day until 3:00pm Boxing day commencing 2014 and each alternate year thereafter;
b) 3:00pm Christmas eve until 3:00pm Christmas day commencing 2013 and each alternate year thereafter;
c) 9:00am until 5:00pm on Father’s day each year;
d) 3:30pm to 8:00pm on each of the children’s birthdays and the father’s birthday;
e) 3:00pm Easter Saturday until 3:00pm Easter Sunday commencing 2014 and each alternate year thereafter;
f) 3:00pm Easter Saturday until 3:00pm Easter Monday commencing 2015 and each alternate year thereafter; and
g) At any other times as agreed between the parties.
5) That the children spend time with the mother, if they are not already spending time with the mother on those days, on the following days:
a) 3:00pm Christmas eve until 3:00pm Christmas day commencing 2014 and each alternate year thereafter;
b) 3:00pm Christmas day until 3:00pm Boxing day commencing 2013 and each alternate year thereafter;
c) From 3.30pm until 8:00pm on each of the children’s birthdays and the mother’s birthday;
d) 3:00pm Easter Sunday until 3:00pm Easter Monday commencing 2014 and each alternate year thereafter;
e) 3:00pm on Easter Saturday until 3:00pm Easter Sunday commencing 2015 and each alternate year thereafter;
f) 9:00am until 5:00pm on Mother’s day; and
g) At any other time as agreed between the parties.
6) That the children communicate with the father when the children are living with the mother as follows:
a) Tuesday, Thursday and every alternate Saturday for up to 10 minutes between 6:30pm and 7:30pm on the home telephone and the mother shall make the children available at those times.
7) That the children communicate with the mother when the children are living with the father as follows:
a) Tuesday, Thursday and every alternate Saturday for up to 10 minutes between 6:30pm and 7:30pm during the school holidays;
b) Each Saturday they are spending time with the father for up to 10 minutes between 6:30pm and 7:30pm during school terms and the father shall make the children available at that time.
8) That neither party denigrate the other in the presence or hearing of the children.
9) That both parties shall be authorised to obtain all information in relation to the children’s attendance upon any medical practitioner.
10) The parties shall be authorised to obtain all information in relation to the children’s education and/or participation in educational, day care institution, and/or sports, recreational and extracurricular activities, and, each of the parties shall be invited to participate in all such events they are able to attend.
Property
11) That the parties do all acts and sign all documents to cause the controlled monies account representing the net proceeds of sale of the former matrimonial home held in the parties’ joint names, including interest, to be distributed as follows:
a) As to the applicant wife 50%.
b) As to the respondent husband 50%.
12) That the husband is to be responsible for and indemnify the wife in respect of any monies owing to the husband’s father, Mr S.
13) That each of the parties be otherwise declared the owners of and other party to have no claim upon all other property presently possessed or held by them, or registered in their respective names, including but not limited to, superannuation funds.
Documents relied upon
Mother
· Amended Initiating Application filed 28 February 2013;
· Affidavit of Ms Johnson filed 15 October 2013; and
· Financial Statement filed 15 October 2013.
Father
· Response to Amended Initiating Application filed 24 April 2013;
· Affidavit of Mr Johnson filed 13 September 2013; and
· Financial Statement filed 13 September 2013.
Issues to be determined
The issues to be determined are as follows:
Parenting
· Parental responsibility; and
· What time the father will spend with the children.
Property
· The division of the proceeds of sale of the former matrimonial home known as and situate at Property H (“the (omitted) property”);
· Whether the alleged loan made by the husband’s father is a debt due;
· The taxation debt and its applicability to the post-separation asset pool;
· Whether the (omitted) boat should be included in the pool of assets;
· Valuation of business and personal assets; and
· How are shares sold by the husband to be treated.
Contentious value of assets
The table below outlines the competing positions with respect to the parties pool of assets, as at the commencement of the hearing.
| (J) = Joint, (H) = Husband , (W) = Wife | ||
| Assets | Wife’s value | Husband’s value |
| Proceeds of former matrimonial home (J) | $208,980 | $208,980 |
| (business omitted) (plant and equipment) (H) | $117,000 | $7,000 |
| Proceeds of Toyota (H) | $20,232 | Nil |
| Household Contents (W) | $3,545 | $3,545 |
| Jewellery (W) | $2,145 | $2,145 |
| Shares (H) | $1,980 | $1,980 |
| Household contents (H) | $500 | $500 |
| Boat (omitted) (H) | $35,000 | Nil |
| (omitted) Super (W) | $52,010 | NK |
| Superannuation (H) | NK | Nil |
| Plant and Equipment left at former matrimonial home | Nil | TBA |
| Total | $441,392 | $241,150 |
The wife alleges, and the husband disputes, that the husband had the exclusive benefit of the following:
| Shares sold by husband (H) | $103,000 | Nil |
| Ride on Mower | $7,500 | Nil |
| John Deere Mower | $500 | Nil |
| Monies transferred by husband to unknown account (H) | $55,000 | Nil |
Total: | $166,000 |
The table below outlines the competing positions with respect to the parties’ pool of liabilities as at the commencement of the hearing.
| (J) = Joint, (H) = Husband , (W) = Wife | ||
| Liabilities | Wife’s value | Husband’s value |
| Personal loan from (omitted) Bank (W) | $7,500 | 00 |
| Alleged loan from wife’s mother (W) | $25,712 | 00 |
| Alleged loan from Mr S (H) | Nil | $50,000 |
| Australian Taxation Office (in respect of Mr Johnson) (H) | Nil | $64,854 |
| Australian Taxation Office (in respect of Mr Johnson trading as (business omitted)) (H) | Nil | $71,745 |
| Vodaphone (H) | Nil | $965 |
| (omitted) (H) | Nil | $759 |
| (omitted) Finance (H) | Nil | $963 |
| (omitted) (H) | Nil | $3,100 |
| Loan account with (omitted business) (H) | Nil | $72,000 |
Total: | $33,212 | $264,386 |
The wife contends that the following should not be included as liabilities for which she has any responsibility:
| Writ regarding (omitted) Finance | $20,012 |
| Increase in mortgage | $57,790 |
| Costs of Asbestos clean-up | $19,012 |
It is the husband’s case the (omitted) Finance writ amount and the increase in mortgage should be included as joint liabilities.
It is the husband’s case that final orders about the Asbestos clean-up costs were made on 7 November 2012. For that reason he says this issue has already been decided. The husband’s argument about the asbestos clean-up costs is persuasive. Final orders about the cost of asbestos clean-up were made on 7 November 2012. No appeal of the orders has been lodged. No application has been made pursuant to s.79A of the Act.
Accordingly each of the mother and father has responsibility for the asbestos clean-up debt as on 7 November 2012. The costs have already been paid from the proceeds of sale of the matrimonial home. The order made on 7 November 2012 has been perfected.
Chronology
(omitted) 1965 The father is born.
(omitted) 1969 The mother is born.
Mid 1995The parties commence cohabitation.
(omitted) 2003 X is born.
(omitted) 2006 Y is born.
(omitted) 2007 The parties marry.
2008The parties purchase the Property O property.
23 June 2008 The husband’s father allegedly loans the parties $50,000.
16 November 2008 The husband pays a deposit for a (omitted) boat.
March 2010The husband assaults A and an AVO is granted for the protection of A and B as against the husband.
December 2010
or mid 2011The parties separate under one roof.
27 September 2011 Manly Local Court made exclusive occupation orders in favour of the wife, and interim parenting orders.
7 November 2012 Husband ordered to pay wife until first day of final hearing spousal maintenance in the sum of $100 per week.
March 2013Former matrimonial home sold.
Evidence
The father
The father is self employed as a (omitted).
He lives at (omitted).
He denied the allegations of family violence made by the wife. Although he did admit that he was convicted of assaulting the wife’s daughter A and as a consequence named as a “Defendant” in an Apprehended Violence Order made in March 2010 to protect A.
He was a Director of the company (omitted business) that traded as (omitted business). (omitted business) is now in voluntary administration.
The current assessment for child support has him paying nil dollars.
He acknowledges that he did not pay all the spousal maintenance due under the order made on 7 November 2012.
He rents the home he lives in at (omitted). He moved there in December 2012 so as to be closer to the children’s school. He estimates it takes three minutes to drive from his home to (omitted) Public School where the children attend.
He describes his (omitted) business as “struggling financially”.
He estimates since about June 2013 he and the mother have been able to communicate effectively about the children, their needs and arrangements for them. He says the main form of communication is through text message and email.
He says that the circumstances involving the incident between him and A was that he intervened into a dispute between A and the wife. He said that A struck him, he struck her back and then pushed her.
He says at the commencement of the parties’ relationship he owned (business omitted) and an investment unit at (omitted). He said that he had no significant liabilities as at that date.
He says that as at the time of the commencement of the relationship the wife had no assets or liabilities.
In 1999 three years after the commencement of the relationship he said that he built some investment units on a block of land owned by his grandfather in (omitted). On the death of his grandfather one of the units was bequested to him. He says that in 2005 the investment unit was sold for about $360,000.
He says that he worked fulltime throughout the marriage. He agrees that the wife worked fulltime until the birth of X and then did not work until 2010.
He concedes that she was the main homemaker and primary carer of for the children from 2003 to 2010. He says that he would assist from time to time with household chores and with care of the children.
The former matrimonial home at Property O was sold in March 2013 for $850,000. The proceeds were used to discharge the (omitted) Bank mortgage, pay real estate agents fees, pay conveyancing fees, pay contractors to remove the asbestos pursuant to the Court order made on 7 November 2012, $50,000 was paid to each of the parties for purposes of legal expenses. The balance of approximately $208,000 was invested in trust pending final hearing.
He says that he placed (omitted business) into voluntary administration on 12 October 2012. Mr T of (omitted) was appointed as Administrator.
The husband was cross examined extensively about the purchase of the (omitted) boat. His oral evidence was entirely unconvincing. I have no doubt that he was not telling the truth about the purchase of the (omitted) boat. I am comfortably satisfied that he used his own money to purchase that boat.
The husband was cross examined as to his share trading. Again his evidence was entirely unconvincing and often at odds with documents that were available. I am comfortably satisfied that he sold shares and has solely benefited from the sale of those shares in the sum of approximately $103,000.
The husband was also cross examined about a (omitted) ride on mower and a John Deere mower. Again his evidence was unsatisfactory and unbelievable. The persons that he purported that owned those mowers were not called to give evidence. No reasonable explanation was provided for that fact.
The mother
She now lives in (omitted). She works fulltime as an (occupation omitted). She rents the home at (omitted).
She says her home is about four kilometres from the children’s school.
X is in year five at (omitted) Public School. Y is in year two at (omitted) Public School.
The mother says that she was principally responsible for the care of the children. She agrees that on occasions the father would help her but his help was not as significant as he says.
With respect to the ride on mowers she says that the husband removed them from the former matrimonial home after she obtained an order for exclusive occupation.
She says that after the parties separated the Toyota was removed by way of repossession. She subsequently learnt that the father had recovered the car and retained it and sold it and used the proceeds of sale.
The mother does not agree with the father’s assessment that the parties’ post separation dealings with the children has been as cordial as the father asserts. She says that she is uncomfortable in dealing with the father and cites the difficulties that she had with respect to Y’s involvement with soccer in learning what was his training and game commitments.
She says that at the commencement of cohabitation she had a motor vehicle worth about $7,000 and jewellery worth about $20,000. She said that she owed a $1,000 credit card debt.
She says at the time the parties started living together the husband owned a half share in a property in Queensland and an (omitted) business. She annexes a copy of a balance sheet for that (omitted) business as at 30 June 1996. That balance sheet shows the nett assets of that business to be worth $109,317.68.
She also annexes to her Affidavit a copy of the Australian Taxation Office Notice of Amended Assessment for the husband for the year ending 30 June 1994 which showed a nett tax liability of $28,332.63.
The wife annexes to her Affidavit the joint valuation of the (omitted) boat which shows a market value of $35,000 inclusive of GST. The date of the valuation is 3 September 2012.
Annexed to the wife’s Affidavit are documents relating to the sale of the Toyota wagon which confirmed the sale of the vehicle and a receipt by the husband for the sum of $20,232.70.
The wife says that she continued to make mortgage payments for one half of the mortgage instalment due on the matrimonial home whilst she occupied it until the property was sold.
Attached to the wife’s Affidavit is a summary of share sales undertaken from the husband’s (omitted) account showing a total amount received of $103,070.
The wife went seemingly to a great degree of difficulty to obtain documents supporting each of the financial contentions in her Affidavit.
During cross examination her oral evidence was persuasive.
Having regard to the above and to the unsatisfactory nature of the husband’s evidence I am satisfied that where evidence given by her conflicts with evidence given by the husband her evidence is to be accepted.
Her weekly nett salary is $1,222.76. She pays rent for the property at (omitted) of $380 per week.
She maintains the children without assistance from the father other than on days when they are spending time with them. She obtains and pays for X’s medication to treat her epilepsy. She now has a health care card for X which means that each prescription now costs $7.20.
She says that the husband paid his spousal maintenance from 7 November 2012 to 2 April 2013 but has made no payments since.
Annexed to her Affidavit is a valuation for the vehicles, plant and equipment of the husband’s business. There is no evidence that contradicts this valuation of $117,000.
Family Report – Dr H
A Family Report was prepared by Dr H and his report became Exhibit ‘H’. Dr H was not required for cross-examination by either party.
Dr H, at page 12 of his report, made the following recommendations:
·that the mother have sole parental responsibility for the children;
·that the children live with the mother;
·that the children spend time with the father on alternate weekends from Friday afternoon to Monday afternoon, from Monday afternoon to Tuesday afternoon in the intervening weeks, for half the school holidays, on special occasions and at other times as agreed;
·that the mother keep the father informed of X’s conditions and treatment; and
·that neither party denigrate the other in the presence of the children.
Determination – parenting proceedings
Parental responsibility s 61DA
It was submitted on behalf of the mother that there was no evidence of a “change in dynamics” that would ground the sharing of parental responsibility, and that sole parental responsibility in favour of the mother is consistent with the recommendations of the Dr H.
The evidence of family violence is not sufficient to sustain an enlivening of the rebuttal of the presumption of equal shared parental responsibility. The violence was contained to a period just prior to the party’s separation. The violence was not directed to the children the subject of the proceedings. The events surrounding this family violence was at worst a misguided attempted by the father to intervene into a conflict between the mother and her older daughter.
Behaviours of the father after the mother obtained exclusive occupancy of the home relating to repossessing the Toyota and repair of the hot water system were petty and vindictive but don’t amount to coercive controlling family violence.
With respect to the parties ability to communicate an analysis of the history of their attempts indicate some limitations. I am satisfied that these limitations are more of an example of a poor attitude than an inability. For example an issue arose about conveying information regarding the children’s soccer. A simple and proper parental response would have been to convey information about the website for the (omitted) and to convey information regarding the team name, age and division and to provide to the coaches and manager both parents’ mobile telephone number. The above did not happen not because of any inability but because of stubbornness.
The mother has taken the lead role in X’s medical care. The father has to an extent abrogated this role to the mother. He is compliant with the treatment regime.
Those above examples do not mean going forward that the parties should not both be involved in decision making processes for parental issues. Indeed significant benefit accrues to X if they do. Under either of the parties application X will spend significant time with the father. He needs to be aware of X’s current treatments and management. The best way that that can occur is if the parties exercise equal shared parental responsibility.
Both parties should have involvement with the children’s schooling. Both parties assist the children with their schooling. The mother is critical that the father does no more than is necessary. That criticism is on the evidence only partially true. It more reflects a differing parenting style. That of itself or in combination with previous examples is not sufficient to justify the making of an order for sole parental responsibility.
The children will benefit from having both parents being able to have input into decisions regarding their education. It will enable both parents to be kept up to date with the children’s educational progress. It will enable both parents to advocate if necessary on the children’s behalf with their schools.
For all the above reasons the parents are to have equal shared parental responsibility for each of X and Y.
The parties’ capacity to communicate is at a sufficient level to make such an order reasonably practicable.
Such an order is contrary to the recommendation of Dr H.
Dr H although an undoubted expert, spent less time with the parties then the case took to hear and did not have the benefit of observing the parties being extensively cross examined.
His recommendation seems to have a grounding in the strain that the children felt about somehow being responsible for their parents’ happiness[1]. It also seems to have grounding in Dr H’s conclusion that the mother is more in tune with the emotional and health needs of the children[2]. Whilst both are true they do not justify an order for sole parental responsibility, in all the circumstances of this case.
[1] Paragraph 38 of the Family Report
[2] Paragraph 39 of the Family Report
Dr H also seems to have accepted the mother’s statements to him that the father is not an effective communicator.
This statement was not borne out in the evidence. Rather the mother presented as somewhat stubborn in her refusal to communicate. A stubbornness sometimes matched by the father.
I do not, having heard the evidence, share Dr H’s concern that the father will use equal shared parental responsibility as an exercise of control with respect to the mother. He has, I accept, a genuine desire to be involved with the children and involved in their lives.
It is for these reasons that the recommendation for Dr H has not been implemented.
Time with order
Neither party asks for an order for equal time. Both parties propose orders that meet the definition of significant and substantial time.
The mother seeks that the children live with her and spend time with the father pursuant to the Local Court orders made in September 2011.
Counsel for the father submitted:
· The father seeks one extra overnight, i.e. rather than finishing at 7:30 on the alternate Wednesday, it be extended to the next morning.
· The time sought by the father is an appropriate order to enable the children to have a meaningful relationship with them.
X told Dr H that she did not like her present living arrangement. She told Dr H that she wanted to spend half of the time with each parent saying “so that I can see them evenly so they don’t complain”[3].
[3] Paragraph 31 of the Family Report
X described to Dr H things that she liked in each of her parents household.
Y told Dr H that he missed his father more than he missed his mother pointing out to Dr H “we have mum for ten days and dad for four days”[4].
[4] Paragraph 36 of the Family Report
Dr H evaluated that both Y and X interacted naturally and respectfully with each of their parents.
Dr H thought that the children were too young to grasp the significance of the views that they expressed. He thought that they were in a potentially dangerous situation about to sacrifice their own needs in order to meet those of their parents. He also thought that there were some grounds for concluding the father had coached the children and sought to ally them to his proposal[5]. I detected no evidence of coaching.
[5] Paragraph 38 of the Family Report
In paragraph 44 of the Family Report Dr H concluded:
Spending significant time with both parents X and Y have the opportunity to benefit from what each parent has to offer and to enjoy an ongoing relationship with each of them. Indications are that their wellbeing and development will be more secure by them living the bulk of the time with their mother and spending substantial time with their father.
Dr H’s recommendation as to the time unnecessarily restricts the children’s time with their father and limits the meaningfulness of that relationship.
The father is able to adjust his work hours to spend additional time with the children.
The parents have not always taken each opportunity available to them as previously discussed to participate in making decisions about the children’s long term welfare.
An additional period of time in the father’s care will not having regard to Dr H’s report, negatively impact the children’s relationships with their mother.
Given the children’s stated preference an increase in time with the father is likely to be welcomed by them.
Whilst each parent is somewhat critical of the other’s capacity as a parent there is no evidence that causes me to conclude that they cannot capably meet the children’s needs. Both parents have to an extent focused on dispute with the other parent causing the children to feel as though they have some role in that dispute. This is an example of each of the parents having a less than perfect attitude to the responsibilities of parenthood.
The parents have by and large been compliant with the orders made in the Manly Local Court. This gives confidence that orders made as a result of this hearing will be complied with and are unlikely to lead to further litigation.
In balancing the above it will be in the best interests of the children to spend time with their father for the number of nights as sought in his proposed Minute of Order which became Exhibit ‘A’. It will however, be less disruptive for the children if the periods in week one are condensed into a single period, that is, from after school Thursday to before school Monday with a single overnight period in the other week, that is week two. Both parties propose school holiday time. Alternating the holiday periods between first and second half will give time each alternate year at Easter.
Specific orders for Father’s Day, Mother’s Day and Christmas are sought by the father will give added meaning to the child/parent relationship and thereby benefit the children.
The condensing of the time gives more practicality to the orders. The parties live near to each other and the children’s school. I am satisfied the orders are reasonably practicable.
Property proceedings
Toyota
It was submitted on behalf of the wife that the husband had the benefit of the proceeds of sale of the Toyota. The husband’s evidence is that he used the Toyota to pay business debts and expenses. There is no real persuasive documentary evidence lead by the husband he did. Given the concerns I have as to his credibility without documentary evidence I do not accept he used the sale proceeds other than for his personal benefit. I accept the monies of approximately $20,000 have been spent by him. This figure will not be included in the balance sheet, rather regard to its use will attract an adjustment under s75(2)(o).
Alleged debt owed to Mr S
The wife submits, in relation to the alleged debt owed to Mr S (“Mr S”) in the sum of $50,000, that it is not a debt due and payable by the husband and hence should not to be included in the balance sheet. The wife submits that Mr S has taken no steps to enforce payment of the liability by letter of demand or court proceedings. Mr S was not made available for cross-examination nor did he go on affidavit to confirm his demand for payment.
The wife relies upon the judgment of the Full Court in Biltoft and Biltoft (1995) FLC 92-614 where the Court said (at 82,127):
Notwithstanding the general practice which has developed, the Court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred. …
The father advanced as the reason for not calling his father to give evidence his father’s illness. Whilst that fact may explain the father not being available for cross examination it does not explain the lack of any Affidavit on his behalf.
The fact that Mr S without adequate explanation did not provide an Affidavit is sufficient to raise an adverse inference of the type referred to Jones v Dunkel (1959) 101 CLR 298.
I attach no weight to the loan agreements annexed to the father’s Affidavit. No duty has been paid on them. The witness was not called. No evidence was lead as to the creation.
I am more than comfortably satisfied that Mr S did not give to the father $50,000 nor did he loan his son $50,000. The husband’s evidence is entirely unbelievable. The most likely source of this money is from the husband’s business and I make such a finding. Accordingly the amount will not be included as a liability in the balance sheet.
(omitted) boat
There is no dispute that the mother and father discussed the purchase of a boat and jointly went to Queensland to inspect boats. On that visit I am satisfied that there was contained within the bag worn around the father’s waist sufficient cash to purchase a boat. I am satisfied for the reasons referred to earlier in this judgment that that cash came from the husband’s business and not Mr S.
The husband after the purchase of the boat always treated the boat as his own.
I am satisfied the husband spent his own money or his businesses money in refurbishing and fitting out the boat as needed, buying and replacing equipment for the boat as needed.
The father’s evidence to the contrary lacked credibility. He in effect lied to the Court in this aspect of his evidence.
I am satisfied and find that the (omitted) boat is an asset of the father. As such it is to be included within the balance sheet.
The only evidence as to value is the valuation attached to the wife’s Affidavit. Whilst that valuation is over 12 months old it is the only reliable valuation evidence.
I find that as at the date of hearing the boat had a value of $35,000, and was the property of the husband.
Increase in mortgage during wife’s occupation of matrimonial home
Each party had a responsibility to make mortgage payments under the terms of the loan agreement.
It is beyond doubt that the payout figure owing on the mortgage increased during the period that the wife had exclusive occupancy of the home.
I accept that the mother paid one half of each mortgage instalment during her exclusive occupation of the home. The father made no payments. This aspect is better dealt with as part of the contribution analyses. The mortgage was discharged on sale of the home.
Taxation debt
It was submitted on behalf of the wife that the husband should be responsible for the tax debts incurred because he should have met them when they became due because he got the benefit of the income so he should pay the debt.
That the taxation debts were not paid as they fell due does not mean that they become the sole liability of the father. They were incurred in the ordinary course of business.
It would in this case work an injustice to exclude the taxation liability from the balance sheet.
Valuation of plant and equipment - (business omitted)
Counsel for the mother submitted that the husband is stuck with the expert valuation.
There was no persuasive evidence to support any value other than the valuation attached to the mother’s Affidavit. As such included as an asset in the balance sheet for plant and equipment will be the sum of $117,000. Indeed the evidence as to the father’s financial dealings relating to his business was entirely unreliable and unpersuasive.
Shares sold by the husband and monies transferred
It was submitted on behalf of the wife that the husband has not shown anything to prove he used share sale proceeds to pay off trade debts. Counsel for the wife submitted that:
As to the volume of share trading, the Husband contended that the trading reflected money payable to creditors that he temporarily parked into shares and are then cleared within the 28 day payment terms. However, the volumes in the trading accounts far exceed the gross turnover declared (before expenses and tax) in the taxation returns. There was no adequate explanation for same.
The husband’s evidence as to how he conducted his share trading is unpersuasive and unreliable and inherently unbelievable.
I am more than comfortably satisfied that he traded in shares and used monies arising from such trading for his sole benefit.
As such there is to be included within the balance sheet a figure for shares sold by the husband in the sum of $103,000.
The evidence as to the transferred monies causes me to believe it has gone to the benefit of the husband personally and was not used in the business. It will be included therefore in the balance sheet at a value of $55,000.
Ride on mowers
Again the husband’s evidence with respect to these mowers is unsatisfactory and not believable.
I am satisfied that he owned the mowers and has sold them and retained the proceeds.
As a consequence there will be included within the balance sheet a figure of $7,500 for the Ride On Mower and a sum of $500 for the John Deere Mower.
(omitted) Finance writ
Counsel for the mother submitted that it was up to the father to prove that the writ from (omitted) Finance was incurred during the relationship.
The submission made by Counsel for the mother is persuasive.
There is no evidence that enables me to conclude that the debt for (omitted) finance was incurred during the relationship. It would have been a simple matter for the father to have proven this through documentation. He has not done so. That liability will therefore not be included within the balance sheet.
Loans owed by the mother
The mother was not challenged on the (omitted) Bank personal loan or loan from her mother.
These items will therefore be included in the balance sheet.
Other debts owed by the father
The mother submits that the Vodaphone, (omitted) and (omitted) debts should not be included in the balance sheet as the husband should have paid those debts, and has thus had the benefit of income.
There is no doubt on the evidence the money is owed. To not include them in the balance sheet would be unjust given the mother’s debts are to be included.
Loan to (omitted business)
The evidence about this debt is unpersuasive. There is no evidence the debt will be enforced. The administrator did not intervene despite knowledge of the proceedings.
For these reasons this “debt” will not be included in the balance sheet. I apply the principle in Biltoft & Biltoft in this aspect of the case.
Conclusion
The assets and liabilities of the parties I therefore find to be as set out in the table below.
Asset
Value
Proceeds of former matrimonial home (J)
$208,980
(business omitted) (plant and equipment) (H)
$117,000
Household Contents (W)
$3,545
Shares (H)
$1,980
Household contents (H)
$500
Boat (omitted) (H)
$35,000
Ride on Mowers
$8,000
Shares sold by the husband
$103,000
Monies transferred by the husband
$55,000
Total
$533,005
Liabilities
Value
Personal Loan from (omitted) Bank (W)
$7,500
Loan from wife’s mother
$25,712
Australian Taxation Office tax debt (H)
$64,854
Australian Taxation Office tax debt (in relation to (business omitted))
$71,745
Vodaphone (H)
$965
(omitted) (H)
$759
(omitted) (H)
$963
Total
$172,498
Nett Equity
$360,507
Superannuation
(omitted) Superannuation (W)
$52,010
It is just and equitable to make property orders. Both parties seek such orders. No party submitted it was not just and equitable to make property orders. Both want the finality such orders bring. They have been separated a long time.
I am therefore satisfied it is just and equitable to make property orders.
Contributions
The father brought to the party’s marriage a half share in a property of unknown value.
The mother says the property was in Queensland, the father says it was in (omitted). Neither party provided a value for what they contend. He also received a unit at (omitted) from his grandfather, which was sold for $340,000. By then the parties had been living together for 10 years. They had both been working and earning income.
The husband supported the wife’s two older children when they lived together as a family.
The wife had benefit post separation from the occupation of the matrimonial home whilst contributing half of the mortgage. The husband did not contribute to the costs of the mortgage. The wife had no rental to pay. The husband has lived in rental accommodation and paid rent.
Both have worked hard during their relationship both with respect to their paid employment. When not working the mother was devoted in the care and parenting of their children.
The husband has not paid since 2 April 2013 the spousal maintenance he had been ordered to pay. He did not pay for 30 weeks, until the order expired on 28 October 2013. Thus he did not pay $3,000 he should have.
In balancing the above I find the father has made a 52% contribution to the parties’ assets and the wife a 48% contribution, as at the date of hearing.
Section 75(2) factors/adjustment
The mother will have as a result of the parenting orders made greater care for the children.
The husband is aged 49 and the wife is aged 44. Both are in good health.
The husband runs his own (omitted) business.
The wife is employed.
Both have a long working life ahead of them and have the skills to have gainful employment.
The mother will have greater periods of time in caring for the parties two children aged under the age of 18 then will the father. The father pays no child support. The mother pays all X’s medical and pharmaceutical costs.
The wife has a superannuation investment of some $52,000. The husband has no superannuation.
The husband has had use of the proceeds of sale of the Toyota in the sum of $20,232. This will attract in itself an adjustment under s75(2)(o) of 0.5 %
In balancing these factors above including the s75(2)(o) percentage there should be a total adjustment in favour of the mother of 20%.
Overall effect
The mother is therefore to receive 68% of the net equity and the father 32%.
The total nett value of all assets including superannuation assets after deduction of liabilities is $412, 517.
68% of $412,517 equals $280,511.56
32% of $412,517 equals $132,005.44
Each party has had, by order, $50,000 to use towards legal costs. Neither party lead evidence as to legal costs. I assume their costs are paid and each has exhausted their $50,000. Accordingly, these amounts are not included in the asset pool.
The wife will retain:
a)her household contents $3,545
b)her superannuation $52,010
Total $55,555
She will be responsible for:
a)the (omitted) Bank Personal Loan $7,500
b)the loan to her mother $25,712
Total $33,212
She therefore has nett $22,343.
She will receive all the invested sale proceeds of $208,980, thereby giving her nett assets of $231,323.
The husband will have to pay to the wife to make up the shortfall the sum of $49,000 in round terms.
The husband in addition will have to pay the outstanding spousal maintenance of $3,000.
The husband will retain his business and its equipment, his furniture, the (omitted) boat, his shares and have the benefit of sale proceeds of the shares and the mowers and the transferred monies.
The husband will be liable for the business tax and other debts.
Justice and Equity
The wife will receive all of the cash assets, the whereabouts of which are known. She will be able to pay her debts. She will have a significant lump sum to use towards the purchase of a home. She will retain her superannuation.
The husband will have his business and its plant and be responsible for its debts. He will undoubtedly use the money he received from his share sales and the car sale to pay what is ordered to be paid to the wife. He will have cash left over.
I am therefore satisfied the orders are just and equitable.
I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the reasons for judgment of Judge Dunkley
Associate:
Date: 17 April 2014
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Fiduciary Duty
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Constructive Trust
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