Josey and Josey
[2016] FamCA 886
•20 October 2016
FAMILY COURT OF AUSTRALIA
| JOSEY & JOSEY | [2016] FamCA 886 |
| FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child. FAMILY LAW – CHILDREN – Relocation FAMILY LAW – PROPERTY – contributions – particularly before the marriage – how to be calculated – mathematical precision – indicative but not conclusive – other contributing factors – adjustments under s 75(2) – superannuation – how to be split. |
| Family Law Act 1975 (Cth) ss 75(2)(o) and 90MT(1)(a) Evidence Act 1995 (Cth) |
| Stanford v Stanford [2012] HCA 52 |
| APPLICANT: | Mr Josey |
| RESPONDENT: | Ms Josey |
| FILE NUMBER: | CAC | 872 | of | 2014 |
| DATE DELIVERED: | 20 October 2016 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 6 & 7 August 2015, 10-13 August 2015, 16 September 2015 and 6 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Haughton |
| SOLICITOR FOR THE APPLICANT: | Infinity Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Gill |
| SOLICITOR FOR THE RESPONDENT: | Elringtons |
Orders
Property
If the husband wishes to acquire the interest of the wife in the property known as X Road, Town Y, in the state of New South Wales and more particularly described in Certificate of Title as Lot … and Deposited Plan … he will notify the lawyers for the wife in writing of his wish to do so within 14 days of the date of this order.
If the husband gives such notice, he shall, within 60 days, pay to the wife the sum of $446,530.
(a)Contemporaneously with the husband making the payment to the wife, the wife shall sign all documents and perform all acts as may be necessary to transfer to the husband, at the expense of the husband, all of her right, title and interest in the former matrimonial home.
(b)Contemporaneously with the payment the wife shall vacate the former matrimonial home, unless otherwise agreed between the parties.
(c)From the date of the payment the husband shall be responsible for and indemnify the wife in relation to all outgoings of, or with respect to, the former matrimonial home and cause the wife to be discharged from her liability to the National Australia Bank in respect of the mortgage secured against the former matrimonial home and the personal loan held in the joint names of the parties.
(d)Nothing contained in these orders will prevent the parties from agreeing, in writing, to vary the times referred to above.
If the husband does not wish to acquire the interest in the property, or if he should fail to make the payment referred to in Order 2.
(a)The parties forthwith do all acts and things and sign all such documents as may be required to sell the former matrimonial home on such terms and conditions as may be agreed between the parties and failing agreement as ordered by the Court ("the sale").
(b)The parties have liberty to apply on 48 hours’ notice in relation to the terms and conditions of the sale.
(c)Neither party may bid at any auction of the property.
(d)Upon settlement of the sale the proceeds will be applied as follows:
(i)To discharge the National Australia Bank mortgage account number …148 and to discharge the National Australia Bank line of credit …623;
(ii)In payment of all selling costs including the selling agent's fees and legal fees of the conveyancing solicitor;
(iii)To pay the balance as to:
A.30 per cent to the husband; and
B.70 per cent to the wife.
Until the transfer of the wife’s interests in the property to the husband or until the sale, the husband will pay all rates and mortgage repayments as and when they fall due.
(a) The husband will forthwith sign all documents and perform all acts as may be necessary to transfer to the wife, at the expense of the wife, all of his right, title and interest in the property situated at and known as N Road, Town M, in the United States of America (the USA) being the whole of the land more particularly described as parcel number ...
(b)As and from the date of these orders the wife will indemnify the husband and keep him indemnified in relation to all liabilities in relation to the said Town M property.
The husband will keep safe and indemnify and continue to indemnify the wife in respect of all personal loans including but not limited to the debt owed by either or both of the parties to Mr T, Ms E and Ms D.
In addition, the wife will pay and keep the husband indemnified in respect of the debts alleged to be joint debts by the parties to Ms W or to Ms V.
The parties will do such things as may be necessary (if anything) to transfer the following items appearing on the Joint Balance Sheet of the parties constituting Exhibit M33:
To the husband
(a) (Item 4) Sporting gear and equipment
(b) (Item 5) Box Trailer
(c) (Item 6) Tools and construction materials
(d) (Item 8) Toyota motor vehicle
(e) (Item 9) Volkswagon motor vehicle
(f) (Item 10) Furniture and furnishing; and
To the wife
(g) (Item 15) Ford motor vehicle; and
(h) (Item 16) Furniture and furnishings.
(It is acknowledged that some of the abovementioned chattels are not precisely defined and the parties, in relation to furnishings and furniture, will do their best to reach agreement about a division of these items. I cannot, on the evidence, do a better job than the parties themselves.
The wife will sell the camper trailer before her departure or by some person nominated by her after her departure. The net proceeds of the sale will be divided between the parties as to 70 per cent to the wife and 30 per cent to the husband.
The husband will sell the fuel tanks. The net proceeds of the sale will be divided between the parties as to 70 per cent to the wife and 30 per cent to the husband.
In accordance with s 90MT(l)(a) of the Family Law Act 1975 (the Act) whenever a splittable payment within the meaning of s 90ME of the Act becomes payable to or on behalf of the husband from his interest in the Military Superannuation Fund the wife is entitled to be paid by the Trustee of the Military Superannuation Fund the amount of $187,013 of the splittable payment and there shall be a corresponding reduction in the entitlement the husband would have had but for these Orders.
The operative time for Order 11 is within 4 business days after the service of these Orders upon the Trustee.
Except as provided in these orders, the parties each retain to the exclusion of the other all goods and chattels, bank accounts, superannuation and insurance policies that are owned by the person or in whose name it is held, or in whose possession it is in.
Children
The mother will have sole parental responsibility for G, born … 2005, and H, born … 2007.
Notwithstanding the last mentioned order the mother will:
(a)Advise the father, as soon as is practicable after an event occurs, of any major or serious illness or injury to either of the children and consult with him about any treatment that may be necessary in such an event.
(b)Inform the father, and keep him informed, of the contact details for the children at all relevant times.
(c)Advise the husband of any professional who may be treating any of the children including but not limited to doctors, psychologists, counsellors or therapists, and will authorise, permit and direct any person so engaged with the children to provide information to the husband upon request or to provide a report at his expense and at his request.
(d)Authorise and direct any school which the children attend to provide information to the husband as he may request, and at his expense.
(e)Keep the husband advised at all reasonable times of the children’s progress and in particular in relation to any special learning assistance or other therapy which either of the children may be undertaking from time to time and the progress that she is making in relation thereto.
(f)Discuss from time to time with the father the progress the children are making generally and listen to suggestions that he may make about would be an appropriate way for their care and welfare to be undertaken.
During the time that the children are with their father in accordance with these orders, or by agreement between the parties, the father will be entitled to exercise responsibility for the day to day care of the children. This includes making routine decisions about medical treatment that the children may require on a day to day basis. However, if the children are in need of urgent medical care or suffer from any serious illness or injury while they are in the father’s care he will, as soon as is practicable, advise the mother about the incident and ensure that he listens to and if possible agrees with her about the treatment the children should receive or which they should undertake.
The mother may determine the form of the schooling the children undertake but shall do so in consultation with the father and will advise him of the decision she undertakes and the institution or institutions that the children will attend.
(a) The children will live principally with their mother and spend time with their father in accordance with these orders, or as the parties may otherwise agree.
(b)The children may live with their mother in the USA and their mother is free to take them to the USA for that purpose.
(a) The children will spend time with their father, in the USA or elsewhere at the nomination of the father, as may be agreed between the parents from time to time but in default of agreement, for a period of eight weeks during the children’s long school holidays in June and July in each year commencing (unless the parents otherwise agree) on the day after the last day on which either of the children is obliged to attend school for that term and ending eight weeks thereafter, unless the parents should otherwise agree.
(b)In addition, the children will spend two weeks at or about the time of Easter and coincidental, so far as it is possible to achieve it, with the children’s school holidays at that time. This will occur on each alternate year, the first of which years will be 2018. This may occur outside of the USA.
(c)The children will spend two weeks so far as is practicable coinciding with their holidays at or about Christmas time each second year commencing, unless the parties otherwise agree, on the day after the last day that either of the children is obliged to attend school in the term immediately preceding the Christmas break. The first of such years will be 2017. This may occur outside of the USA.
(d)For two periods of up to two weeks (fourteen days) in the USA upon the father’s giving the mother not less than 28 days’ notice of his intention to spend such time with the children. In spending time with the children the father will honour arrangements that have been made for the children prior to his giving notice of his intention to see the children and will cause the children to attend school or school events or social or sporting events arranged prior to that time. For her part, the mother will not make any arrangements for the children during the period of foreshadowed time with their father after she has received notice of that proposal unless the husband gives consent to the arrangements made. So far as possible the father will attempt to give longer notice of his intention to spend time with the children and the orders about arrangements will apply in the same way to any such notice.
If the children are with one parent for any of the following days, that parent will ensure that the children communicate with the other parent by Skype or, Facetime or in default of those being available for whatever reason, by telephone.
(a) The children’s birthdays
(b) The other parent’s birthday
(c) Christmas Day
(d) Easter Sunday
(e) Father’s Day
(f) Mother’s Day
In addition, when the children are with either parent that parent will ensure that they communicate with the other parent between the hours of 6 pm and 8 pm, on Mondays and Thursdays.
Otherwise, so far as it is practicable to do so, each of the parents will permit the children, of their own initiative, to contact the other parent at any reasonable time. However, neither parent will solicit the children to ring him or her other than in accordance with the formal arrangements set out above.
The parties will confer and agree about whether the children need to be accompanied in their trips between Australia and the USA. If the parents are unable to agree, the children will be accompanied by a parent on any such trip for the calendar years 2016 and 2017.
(a) In respect of travel between the USA and Australia each of the parents will pay either to accompany the children for the purposes of the time that the children will spend with the other parent and / or to travel to see the children in the other country. In particular, if the father takes advantage of the arrangements set out above about his spending two periods of fourteen days with the children in the USA his transport and accommodation will be at his own expense.
(b)The parents will share equally the cost of the children’s transport, in accordance with these orders, between the two continents. The father will pay for the fares from Australia to the USA and the mother will pay for the fares from the USA to Australia.
(c)If the children travel unaccompanied, the parent with whom the children are living at the time when the travel is to occur will ensure that they are placed safely on an aeroplane to the other parent and the other parent will ensure that he or she is available to collect the children at the other end.
(d)To facilitate that, each of the parents will make sure that they provide, at the earliest possible opportunity, details to the other parent of flight numbers and times and will keep the other parent advised of any change to such information.
Each of the parents will refrain from saying unkind or unpleasant things about the other parent or, to the other parent, in the presence of the children and will not cause or permit any other person to do so, in the children’s presence.
Each of the parents be and is hereby restrained from discussing these proceedings with the children except to the extent that they may answer factual information about the contents of the orders.
I request, nevertheless, that Ms F, a Family Consultant attached to the Family Court registry at Canberra, speak to the children, preferably in person, to explain the orders to the children and to explain to the extent that it is necessary to do so the reasons set out in my Reasons for Judgment as to why the orders made have been put in place.
Nothing contained in these orders should be taken to prevent the parents reaching agreements which are different from the arrangements set out in these orders. It is noted that during the course of the hearing each of the parties indicated a willingness to negotiate for the benefit of the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Josey & Josey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 872 of 2014
| Mr Josey |
Applicant
And
| Ms Josey |
Respondent
REASONS FOR JUDGMENT
At the beginning of my Reasons for Judgment I wish to express my sincere apologies to the parties for the delay in my providing the judgment in this matter. I am aware of the anguish that this must have caused the parties and I sincerely apologise for my being the cause of that.
I hope that my judgment will provide a turning point for the parties to the extent that they are able to in some ways reconcile the conflicts that they have hitherto being engaged in. I also hope that the difficult decision that I have made about where the children will live will be entirely satisfactory to ensure that the children continue to have a relationship with each of two parents who undoubtedly love their children and whom the children undoubtedly love. I am conscious of the fact that it is unlikely that my decision will be entirely satisfactory to either party but in the circumstances of this matter the decisions that I have made are the ones that I consider are best to do justice between the parties and to look to the primary consideration of the best interests of the children.
Introduction
In this matter the parties seek both parenting and property orders. The parenting orders are sought in the context of the mother’s seeking to relocate with the children to the United States of America (the USA), where she is a citizen. The father is an Australian citizen, and both children have dual citizenship.
The parties met in the United States in 2003 while the father was posted there as part of his work with the Australian Armed Forces. They married in the USA in mid-2004. The parties relocated to Australia in June 2005, and both children were born here. The oldest child was born in 2005 and is now 11 years old. The younger child was born in 2007 and is nine years old.
During the relationship on four occasions the father was posted to various international locations for periods of up to six months each time. During these periods the father would have telephone contact with the mother and the children. For a period of two years from late 2006 to the end of 2008 the family relocated to Western Australia for the father’s work.
The parties subsequently “separated” under one roof in 2012, with the mother living in a self-contained apartment on the property, and this situation still existed at the time of hearing. The exact date of separation was a matter of some contention during these proceedings. The father’s evidence is that they separated in January 2012. The mother contends it was January 2014. In any event, the parties shared care of the children during this time, with the children residing in either the father’s or the mother’s part of the property during their time with each parent. Currently the children live with their mother and spend time with their father for five nights per fortnight on each alternate weekend.
The circumstances of this apparent “separation under the one roof” are explored in more detail in my Reasons that follow. For reasons therein set out it seems to me that the relevant date for separation for most matters is January 2014. The somewhat strange circumstances under which the parties were living between 2012 and 2014 of course have an effect on some of the determinations that are made hereinafter about the children, and to some extent, about property.
Further preliminary matters
The father was employed at the time the parties entered into their relationship in the defence forces in Australia. The mother at the time was living in the USA and was running an animal services business. She owned land in the USA; one developed block of land and one undeveloped block of land. The undeveloped block of land is part of the property of the parties at present to be considered for division.
After the parties were married and determined to go to Australia, the business remained conducted by other people for a couple of years but was eventually sold. The proceeds of that sale were used by the parties to, in effect, pay off the debt they had incurred in the acquisition of the property at Town Y in New South Wales (“NSW”) near Canberra. For all practical purposes whatever may have been the money that came across from America to Australia, the initial price paid for the house at Town Y was met for all practical purposes from the wife’s resources. It is acknowledged that during the time the parties were together in the USA (a relatively short time), the husband contributed to the common finances of the parties. However, a substantial sum of money was transferred from America to Australia and that formed the basis of the parties’ acquisition of their house at Town Y. Subsequently, after the business ran into difficulties in the USA principally because of the dishonesty of those running it, it was sold for a relatively modest sum of some $50,000, and that also was transferred to Australia. Much cross-examination was directed to issue of how much money, precisely, was transferred from the USA to Australia. To say the least, the understanding of the parties, their assertions and counter-assertions and their evidence have been difficult, if not impossible to reconcile. What is abundantly clear however, is that of the property that currently exists the wife is almost exclusively, if not exclusively, responsible for the acquisition and conservation of the property at Town M. The property at Town Y was originally acquired by money that was generated by the wife in the USA before the relationship.
At the time the parties began their relationship the wife had some superannuation in the USA and the husband had some military superannuation at the same time. The husband has since acquired quite substantial superannuation and that has been the subject of some consideration in the paragraphs which follow.
After the parties had spent time both individually and together in physically improving the property at Town Y, their relationship soured. As a consequence of that, they lived separately but under the same roof for some time. As mentioned subsequently, there is some dispute about the precise date of the parties’ separation but for all practical purposes this is not relevant because they continued to share expenses during the period that they were living under the one roof and the children remained in a situation of care between them.
The mother wants to return to the USA. The father does not want to return to the USA and says he cannot get work there in any event. The parties had fantasised in the past about the father’s “growing his hair long and writing a book” in the USA but this seems an unlikely scenario any more.
The evidence in this matter was extensive, the cross-examination very detailed and lengthy. The issues that the evidence gave rise to and the disputes between the parties required determination are set out in more detail hereafter.
In June 2014 the father filed an Initiating Application in the Federal Circuit Court seeking both parenting and property orders. In the mother’s Response filed in July 2014, she sought to be permitted to relocate with the children to the United States. In July 2014 the parties entered into interim consent orders regarding the time that the children would spend with each of them and the matter was transferred to the Family Court of Australia.
It is not in contention that the children share a close and positive relationship with each of their parents. However significant tension and conflict remains between the parents.
This conflict was identified as an issue by the Family Consultant in her report:
The information available suggests that the relationship between the parents continues to be hostile and the parents are unable to effectively communicate and cooperate regarding the welfare and development of their children. (para 92)
While the conflict between the parents is not overt, none the less, the children appear aware of the covert hostilities between the parents. In this situation the children’s desire to please both parents and to tread carefully when speaking to the parents about their emotional needs, has resulted in confusion and imposes an unfair emotional burden on each child. (para 98)
In general, it is in the children’s best interest that they have an ongoing relationship with both parents. However, if the parental relationship continues to be characterised by a high level of conflict this will negatively affect their relationship with each of their parents. (para 100)
I found making a determination about what would be in the best interests of these children to be a very difficult task in this matter. This is in part brought about by the obviously difficult question of whether the children should live with both parents in the same country in reasonable proximity to each other, or whether as one parent desires they should live in one country with her, even if their father should continue to live in another country (in this case, Australia).
Necessarily, if the children were living in Australia with both parents, there would be at least potentially, a diminution in the relationship which they might have with the mother’s family in the USA. On the other hand if the children are living with their mother in the USA and their father remains in Australia, then the children will have a potentially diminished relationship with the father’s family.
This issue however is one that the parties had faced throughout the whole of their relationship and since its cessation. The mother, while living in Australia, had continued to spend time in the USA and the mother’s proposal is that if she lives in the USA then the children will spend time with their father and it was contemplated by her, and in the evidence before the Court, that a substantial amount of that time would occur in Australia. There was no agreement about the total of that time but no one was able to provide evidence which satisfactorily compelled the choice of one period over another.
The father at no point gave evidence about how he would manage the time he had with the children when he was at work; other than through submissions from his counsel that he had a network of friends and family who might look after the children while he was at work during the week.
The mother (perhaps understandably) was unable to define with precision what holidays the children might have as this was dependent upon which school they might attend or whether they were in fact receiving home schooling or a combination of home schooling and attending a normal school.
Each of the parents suggested that the contact with the other parent and the other parent’s family might be maintained during periods of absence from the children via Skype. Each was particularly enthusiastic about the advantages of this in respect of the other parent and the other parent’s family. The failure of the parents to observe this inconsistency in their evidence was in fact typical of each of their respective isolated approaches as to the children and the children’s welfare.
The consideration of what might be best for the children was further complicated by the omission from evidence of a number of other matters of practical significance. The mother, for example, was almost joyously optimistic about her ability to find temporary accommodation (which varied from time to time, from an on-site caravan, to staying with a relative or to staying with a friend or renting property) to conducting building operations on the vacant block of land that she would retain as part of the property settlement, to establish a new business which would operate from the property (presumably but not necessarily on the evidence) an animal services business, to maintain home schooling for the children if that was her decision and / or assist the children in their schooling if they were to attend another school. Her situation was further complicated by the fact that so far as I can determine at its very best the business that she previously conducted was producing about $50,000 (probably US) a year and there was no indication in the evidence about what the wife’s business might produce if she were able to re-establish it if she were to return to the USA.
Somewhat typically but nevertheless frustratingly, the husband’s proposals for the children if they were to remain in Australia are equally (and I concede in some cases, necessarily) vague. Primarily he seeks that the children should live, when they are with him, in the former family home. I suspect however that in the light of my decision about property matters the acquisition of the Town Y property may be beyond his capacity. He accepted in his evidence and in his submissions from counsel that this might be the case and he would then, he said, acquire property somewhere in the Town U area not the least because it would be convenient to his place of work. That is not in any way said as a criticism; because that would enhance the time he would otherwise spend with the children. The wife’s proposal as well was that if she were to remain in Australia that she would acquire some form of accommodation in the Town U area. Her proposal is (as was the husband’s) necessarily vague.
The father in his Minutes of Orders seeks that the children, if they are living in Australia should during school term be with him from after school on Thursday until Tuesday on the alternate week and for half of the school holidays. I pointed out to counsel that this necessarily involved the disruption of two consecutive weeks with the children in changing residence in effect, at mid-week. The answer from counsel (without any evidence) was that the children should therefore spend from Wednesday in one week until the following Sunday evening with their father, or Monday morning. I believe I am being asked to accept that if either of the father’s proposals were to be implemented that he would have the capacity to ensure that they got to school on time from wherever they may be living with him by whatever means may be necessary and that they would be able to get home again at the end of the day either through his agency or otherwise. No detail was provided about those arrangements.
The mother, for her part, in her Minute of Orders envisaged that if she were living in Australia, the children would spend from after the conclusion of school on Thursday until the commencement of school on Monday with their father and part of the school holidays. Although she contemplated that if she remained in Australia she would have employment, again, the details of how the children would get to and from school from whatever residence she may succeed in acquiring were non-existent.
The mother contemplated that if she were to remain in Australia with the children, that in essence, the first and third term holidays would be shared equally between the parents (in conformity with the proposal of the husband) but that “from the commencement of Term 2 school holidays for a period of 28 days and for this purpose the husband’s time pursuant to (Order 4.1) is suspended to allow the mother to travel to the United States of America with the children” how this would impact upon the children’s schooling was not the subject of any cross-examination or evidence-in-chief that I can determine.
If the children are living in the USA the father seeks that he advise the mother in writing by 31 December in each year about the time he wants to spend with the children, away from the USA, on two separate occasions and that time would be about 15 weeks each year. He proposes that in addition he would be able to spend time with the children by giving the mother two months’ written notice and that he might have (as it transpired from submissions) about 14 days possibly on each of those occasions with the children in America.
It becomes immediately obvious that this proposal does not explain and no evidence was adduced to explain how he would be available to spend the 19 weeks referred to with the children in every year. It also means that he would have an arbitrary (at least without reference to the mother) choice about when his fifteen weeks away from the USA would occur. I should add by way of comment however, that there was from the wife in her evidence the confident expectation that the parties, and in particular that she, would be able to come to some mutually acceptable agreement about the time the children spend with their father. The assumption on both sides seems to be that the bulk of the periods away from Australia would be during the long holidays of the children in the middle of the year.
But neither party was able to provide any evidence (again perhaps understandably because of the lack of precision about where the children were going to school) about the precise duration of school holidays. It seems that the children may have about two weeks of school holidays over the Christmas period but even if that were part of the two occasions referred to by the father that would still leave on his proposal some 13 weeks or about three months in which they would be with him away from the USA at another time in the year. It does not appear (although on the evidence I cannot exclude) that they would have that sort of a break from school in their long summer holidays.
Again, the proposal lacked the detail about what would happen with the children during these periods of absence from the USA or even when they were in the USA. The husband’s availability to be with the children during these periods remains a mystery. I accept that his spending time with them does not necessarily mean that he must personally spend time with them for the whole of the period but equally the orders to be made are not orders that the children spend time with his family or friends network. Moreover, the choice of the periods referred to is arbitrary. Counsel for the father was unable to identify any evidence which supported one period over another.
For her part the mother sought that the children should spend time with their father for 14 days on each alternate December school holiday period. This related to where the children should spend Christmas. Her solution was alternating between the parties. That seems sensible.
She also sought that they spend up to six weeks during each long school holiday period in the USA during that period. But this was to occur either at the beginning of that period, or the end - on alternate years.
She also sought that there be a 14 days period during the Easter school holidays alternating in each year.
In parallel with the father’s proposal, the mother also sought that he might have a further period (one period in contrast with his two) of no longer than 14 days in the USA provided he gave 28 days’ notice of his intention to do so, and subject to its not interfering with the children’s “schooling or any other sporting or social event…”. As was pointed out by counsel for the father the inclusion of the words “or social event” would enable the mother, effectively, if she wished to do so, to sabotage any period by organising social events for the children during the time that they would be with their father. The mother herself in her evidence under cross-examination seemed confident that things could be worked out for the children. I hope they can be but I have to express my pessimism about the ability of these parties to reach agreement about anything.
Again the proposal of the mother did not seem to take account either of her availability for the children or the father’s but was more realistic in that it was confined to periods of the children’s school holidays (apart from the time in America). Again however, the choice of the period was substantially arbitrary. Although there would be the six weeks in every year that the children would spend during the long school holidays, they would have an additional two weeks a year either at Christmas or Easter - so a total in any year of eight weeks, it seems.
Either proposal inevitably seeks to maximise the time that the children spend with the father at the expense of their spending time during school holidays with their friends. The proposal of the mother, and one would think, also of the father would mean that the children would never spend a summer or a substantial portion of the summer in the USA. The father’s proposal does not of course (subject to his employment requirements) require that the children spend the time in winter in Canberra but the potential exists for the children not to have a summer holiday anywhere at any time. This does not seem to have entered into the parent’s contemplation - and certainly not into their evidence.
The mother seeks that she have sole parental responsibility for the children and the father seeks that if the parents both remain in Australia that the parents have equal shared parental responsibility for them. Curiously the wording of the order he seeks if the children were to live with their mother in the USA is that “the parties have joint parental responsibility for the children”. He sensibly qualifies that with an order sought that each parent shall have parental responsibility for “day to day decisions about the care, welfare and development of the children whenever the children are in their care pursuant to these orders”. He also seeks that each of the parents will advise the other of any illness or injury suffered by either children while in that party’s care and that the parties shall each respectively advise the other of any person or institution providing any medical care, treatment, counselling or the like to the child whilst with the same treatment in that party’s care. He also provides sensibly that each parent will authorise and direct any person providing care to the children, in accordance with the last provision, to discuss that treatment and provide any information the other party may seek. He also provides that in the case of an emergency each of the parents shall respectively advise the other no less than 14 days prior to any medical counselling or other therapeutic, except in the case of emergency, therapeutic treatment involving the child. Both parents are to be at liberty to attend such appointment. He also provides that each parent would authorise and direct the schools to provide information to the other parent. The orders that he proposes if the children are living in Australia with both parents are substantially in line with those for the children if they are with another parent in a different country, but are more specific about contact that might occur and also provide that one parent will inform the other of any regular not extra-curricular activities and that each parent will inform the other of absences from school and attendance at school excursions.
For her part the mother seeks to impose an obligation on each of the parents to provide details of telephone number, address and e-mails of the children at all times. She also seeks that the parents immediately notify each other of any “major” illness or injury requiring medical attention or hospitalisation. I pause simply to suggest that the qualification of “major” is probably sensible given the circumstances of the parties and their separation. She has a separate provision about serious or life-threatening conditions which is different in kind but not in substance from what is proposed by the husband.
Each of the parents seeks that each of the parents be restrained from saying unkind or unpleasant things about the other party (or one might interpret the other party’s family) while they are with that party. The mother also seeks, sensibly, that neither party discuss the proceedings with the children. However, the possibilities of success in relation to this probably depend upon whether the parties are prepared to accept this decision as finalising matters between them about the children.
I have commented throughout the proceedings about the fact that while there is a presumption that there should be equal shared parental responsibility such a proposal fails to take account of the fact that the parents in this case have demonstrated over and over again an inability to each agreement about comparatively simple things. Counsel for the father has pointed out that the parties have in fact managed to get along all right in relation to the children and counsel for the mother seems to suggest that if the parties were separated by the Pacific Ocean, that in some way, they would become more cooperative. During the course of evidence and submissions the phrase “in a perfect world” appeared regularly but it appears that neither party was proposing a move to Utopia. All of the evidence would suggest that particularly if the parents were separated in two continents, a proposal for equal shared parental responsibility expressed in those broad terms would not be practical or practicable.
That having been said, there are no major differences between the parents apparently about such things as religion or broadly on the question of the children’s health. Each of the parents is critical of the other to some extent in relation to specific matters relating to the children’s health. There would seem to be a practical need that, if the children are living with one parent or the other, irrespective of any differences of opinion, that parent should be able to determine day-to-day activities which the children are engaged in, and to have that responsibility. If the children are living principally with their mother in the USA, it would in my opinion make sense that she should be able to determine matters relating to the children’s health on a continuing and normal basis but that the father should of course be at liberty to deal with any health events which occur during the time that the children are with him.
If the children are living principally with their mother in the USA, as I propose, then she should be the one to decide what their schooling should be. I was unconvinced by the submissions made on behalf of the father that the mother’s attention to the children’s schooling was in some way deficient in Australia and that she was incapable of providing assistance to the children in the USA. I am concerned that the mother’s proposals for the children failed to take account of the demands upon her time and while she is supremely confident that she can arrange appropriate schooling for the children one way or the other, her proposals are vague. In resolution of that issue it seems to me that the mother should ultimately be able to determine what the education of the children should be but that she should do so after having given notice to the father and permitting him to make suggestions to her.
This may be a little like mandating peace talks between warring middle-Eastern factions. However, I urge both parents in the interests of their children to abandon a conflicted approach and to seek accommodate the views of the other and to cooperate in doing what might be best for the children rather than simply espousing and advocating for his or her particular view.
In the father’s affidavit material he expressed concerns about the environment in which the children might be living in the USA and in particular the attitude of the mother’s family to hunting and guns. Nothing convincing was put forward during the course of the evidence which would lead me to come to that conclusion.
A matter that neither parent seemed to have given a lot of thought to (apart from shifting responsibility to the other at least in part) was the issue of the cost of transporting the children between Australia and the USA. This situation was complicated in part by the recommendation from the Family Consultant that at least for the time being the children should be accompanied on their flights. Regrettably, time has passed since the hearing and I am not sure what the current situation about the children might be in this regard. Again, while I do so with some trepidation it seems to me that the appropriate orders I should make are that if both parents agree, the children should be able to travel unaccompanied provided that a parent sees them onto the plane and another parent takes them off at the other end.
As I suggested during the course of submissions, in my opinion, the cost of a parent travelling should be that parent’s cost and the cost of the children’s travel should be borne equally by the parents. This latter provision is in contrast with the suggestions of the mother who maintained that the father (having a superior income) should be so responsible. On the other hand the mother had emphasised that she had the ability to obtain whatever funds were necessary from her family to facilitate travel of the children. In the circumstances, in my opinion, it is fair that the parties should bear that cost equally.
In coming to that conclusion, and to dispel any suggestion that this is in some way an allocation of “blame” to one party or the other (as this was raised during the course of submissions) I comment that while it would appear to be fair that if one party seeks to relocate that party should at least bear a proportion of, if not a substantial proportion of, the costs of the transport of the children to continue a relationship with the other party, in this case the evidence about what the parties proposed and where they would live eventually and whether this was the USA was, to say the least, obscure.
The mother asserted that the proposal of the parties was that they would always return to America. The father denies that that was ever part of any settled proposal. E-mails between the parties even during the period of so-called “separation” discussed living in America and living at other places in Australia.
I do not subscribe to the doctrine that the party who relocates should, as some sort of price of relocation, be responsible for the cost of the transport of the children. The issue is much wider than that and requires a consideration of the personal circumstances of the children and the parties. In this case however, to dispel any suggestion to the contrary, I am not even satisfied about what the proposals of the parties were when they left the USA. Hence even that precondition could not in this case apply.
The Family Consultant’s Evidence
The Family Consultant was cautious in her conclusions, watchful in her observations and in my opinion wise in her suggestions.
She noted the explicit views of the children (which I am obliged to take into account) that they would prefer to live in Australia. However, an examination of what the children said and the analysis of those views by the Family Consultant would not lead me to conclude that those views of the children should be implemented. I do not suggest that they have been in some way consciously and deliberately influenced by their father. However, the language expressed by them suggests that they see themselves in the middle of a conflict between their parents and are acutely aware of the need to be fair. It is very sad that children as young as these feel that they are the ones who must make decisions which will in some way satisfy their parents’ individual wants, desires and what each parent might consider is his or her rights. I think the views of the children taken in the context of the conflict between their parents - of which they are keenly aware - indicate that the children would prefer both their parents to be lovingly together. Unfortunately, hell has not frozen over yet.
The Family Consultant also concluded that the father was not as insightful as the mother in relation to the needs of the children.[1] The father, perhaps predictably, contested that and pointed to oversights on the part of the mother. In this matter I accept the conclusion reached by the Family Consultant. It is consistent with my observations of the parties in the course of their oral evidence and the reading of their affidavits. It is also consistent with the fact that the children have spent more physical time with their mother than their father – in part because of the fact that he was deployed from time-to-time. I add that of course the deployments, as suggested by the father, were consensual. I note also that the father did not hesitate to undertake those deployments and to leave the children in the full-time care of the mother, notwithstanding this was in some cases for some months at a time. He trusted her.
[1] Family report dated 4 June 2015 [112]
Her conclusions about these matters led the Family Consultant to the view that the children’s best interests would be served by their being with their mother and that their mother might more effectively live in the USA. It is possible that the children would have more effective time with each of their parents if the mother were to continue living in Australia. This is not something she wants to do. The arrangements that each of them proposes would ensure that the children spend significant time with their father. In fact, on the father’s proposal they would probably spend as much time with him if they were living in the USA as they would if they were living in Australia. (That of course would depend on the sort of orders that applied if they were living in Australia.)
As with so many cases involving relocation, this is a finely balanced thing. The primary considerations in the determination of the best interests of the children include the benefit to the children of a meaningful relationship with their parents. That does not mean that this is a consideration to override every other and it is to be noted that the legislature included the word “benefit” to the children. The events each of the parties deposed to about the time that they spent in the somewhat difficult circumstances of living in the same building, suggest that there may be advantage to the children in not being exposed, on such a regular basis, to the conflict between their parents. I am not confident that the conflict between the parents would not still exist and be manifest to the children if they were in proximity to each other. That is not to say that if they are not proximate to each other, that such a conflict cannot still continue. But at least it removes daily reminders of the differences between them.
Summary
In accordance with what I have said above, I believe that the children should be able to live with their mother in the USA and that the father should spend bulk time with them during the year both in Australia, if he wishes to do so, or somewhere else in the world for that matter - and in the USA. I am conscious of the fact that it would be desirable for him to spend time with the children when they are at school and his proposals for being able to attend the USA for two periods would accommodate that. It is very demanding on him both as to time and expense but may be of benefit for the children.
On the other hand, the proposal that they should spend some 19 weeks a year with him fails to take account of his work commitments and while it conforms with one of the “primary considerations”, that there may be some enhanced benefit to the children in having additional time with their father, there may also be a benefit to them in being able to have consistent time with their mother and their friends.
All of these matters are questions of balance and my choice about where that balance lies may be different from each of the parents or from somebody else. It is my discretion to make this determination but it is important that I should indicate the reasons that govern my decision.
In my opinion, unless the parents otherwise agree, the children should spend the whole of their June/July school holiday period in each year with their father. This is more than the mother proposes and less perhaps than the father proposes. It is inevitably a compromise and it does have the effect of depriving the children of spending their summer holidays with their friends and/or family in the USA. Depending on the nature of the children’s schooling and other factors that only the parents can reasonably evaluate, it should be open to them to come to some other proposal in some years to provide a more balanced approach for the children. Nevertheless, to make the best of the time available, in my opinion that is the most appropriate arrangement.
I also accept that it is appropriate that the children should spend two weeks each year alternatively at or about Easter and at or about Christmas. It appears both parents are religious (although little evidence was given about this in the course of the proceedings) and those Feast Days are likely to be important to them and hence to the children. This means that the children may spend up to about ten weeks a year with their father outside the USA.
On balance, it seems to me that a qualified approach to the time they spend with their father in the USA would best serve the purpose. As I indicated above there would be some advantage if it were possible for it to be arranged for the children to be going to school during some parts of the time that the father was with them in the USA - so that he could take part in their day to day activities. I acknowledge that this may not be possible. At the very least this would require the father to have accommodation in proximity to the children’s schooling and this may not be an easy task. It should be, as the mother suggests, that the time that the father spends with the children in this way should not interfere with their sporting or schooling events. If the father gives, as my order will provide, at least 28 days’ notice of his intention to the mother, then she should not thereafter make any commitments for the children during that period which would interfere with the time that they might spend with their father. I accept that those last few words are capable of a degree of ambiguity and judgment. In essence, it seems to me that unless the father agrees, the children should not have any further commitments without his consent after the requisite notice has been given.
For his part, he would need to accept that if the children have regular activities that they should be able to, and should continue to, attend those activities - subject to agreement from the mother that they not do so. It may not hurt them to miss an occasional sporting event or something else - as indeed was the decision between the parents when they were in Australia.
In essence, in my opinion, the children should be able to communicate with the parent with whom they are not living at any reasonable time. I accept there are costs and practicalities associated with such an order. I accept also that in the circumstances of these parents’ failure to agree about anything it would be sensible to make some specific provisions about communication by Facetime or Skype.
I accept that on special occasions such as Mother’s Day and Father’s Day and the children’s birthdays and each of the parent’s birthdays special efforts have to be made to ensure that they are able to communicate. The mother’s order about this seems to be sensible. I also accept that an organised communication as proposed by the mother in Order 8 of her orders on each Monday and Thursday would be sensible but that should not preclude other occasions on which the children speak to or have Skype or Facetime communication with their father, if they wish to do so and initiate it. Of course, neither parent should solicit or encourage further communication thereby putting the children under pressure. (I am not suggesting that would necessarily occur.)
Property
By the time of final submissions in this matter the Balance Sheet of the parties as to their assets and liabilities have become substantially agreed. That is set out below.
| Assets | ||||||
| Ownership | Description | Value | ||||
| 1 | Joint | X Road, Town Y | $850,000 | |||
| 2 | Joint | Town M Property, USA | $163,750 | |||
| 3 | [Joint | Camper trailer | $15,000] | |||
| 4 | Joint | Sporting gear and equipment | $3,000 | |||
| 5 | Joint | Box Trailer | $1,500 | |||
| 6 | Joint | Tools and construction materials | $2,000 | |||
| 7 | Husband | NAB Bank account (…135) | $2,136 | |||
| 8 | Husband | Toyota motor vehicle | $15,000 ..!) J..J,vvv | |||
| 9 | Husband | Volkswagon motor vehicle | $4,000 | |||
| 10 | Husband | Furniture and furnishings | $5,000 | |||
| 11 | [Husband | Fuel tanks | $1,000] | |||
| 12 | Wife | NAB Bank account (…314) | $23,000 | |||
| 13 | Wife | Chase Morgan Bank Account | $3,000 | |||
| 15(sic) | Wife | Ford motor vehicle | $10,000 | |||
| 16 | Wife | Furniture and furnishings | $2,500 | |||
| Total assets (excluding items 3 and 11) | $1,084,886 | |||||
| Addbacks[2] | ||||||
| Ownership | Description | Value | ||||
| 17 | Husband | NAB Mortgage Redraw (18 June 2014) | $7,800 | |||
| 18 | Husband | Planning extension for M Town | $6,900 | |||
| Total addbacks | $14,700 | |||||
| Liabilities | ||||||
| Ownership | Description | Value | ||||
| 18(sic) | Joint | NAB Mortgage –Town Y (…148) | $184,922 | |||
| 19 | Joint | NAB line of credit (…623) | $43,313 | |||
| 22 | Husband | NAB Mastercard (…197) | $6,000 | |||
| Total liabilities | $255,235 | |||||
| Other Debts | Description | |||||
| Joint | Debt to Ms W | |||||
| Joint | Debt to Ms V | |||||
| Husband | Debt to Mr T | |||||
| Husband | Debt to Ms E | |||||
| Husband | Debt to Ms D | |||||
| Superannuation | ||||||
| Ownership | Description | Value | ||||
| 28 | Husband | PSSap | $78,508 | |||
| 29 | Husband | Military Super (FLV) | $432,580 | |||
| 30 | Husband | QSuper | $16,769 | |||
| 31 | Wife | MLC Super | $8,333 | |||
| 32 | Wife | American Funds | $14,260 | |||
| 33 | Wife | Franklin Templeton | $5,765 | |||
| 34 | Wife | Invesco | $58,270 | |||
| Total superannuation | $614,485 | |||||
[2] Their headings – not mine
On the basis of the various scenarios the parties had put forward (which were dependent upon whether the mother was living with the children in the USA or in Australia) and as my determination in this matter will be that the mother will be free to move with the children to the USA, the property in Town Y (number 1 in the list above) may be (by agreement between the parties) acquired by the husband if he is able to afford to do so. If he is unable or unwilling to do this it should be sold. The orders I make in this matter reflect those alternatives. On the basis that the husband is acquiring the property he agreed that its value for these purposes should be the $850,000 referred to.[3]
[3] See t p 590 6 October 2015
It was also agreed that the wife will retain the Town M property in the USA which she owned prior to the relationship between the parties.
Although the wife sought to retain the camper (item 3) the value was in dispute but agreed that if the wife took it it would be valued at $15,000.[4] On the assumption that the wife is going to the USA I have assumed that she will not wish to retain the camper and accordingly it should be sold by the wife or some person nominated by her and the net proceeds divided between the parties in the proportions of 70 per cent to the wife and 30 per cent to the husband.
[4] T p 590
Among the other joint items of property the sporting gear and equipment effectively should remain with the husband in Australia as should the box trailer and the tools and construction materials. I have accordingly, for the purposes of my calculation, included those on the husband’s side of the ledger.
There is also an issue in relation to the fuel tanks, it was agreed by counsel for the husband that if the wife did not want them they should be sold. My orders will provide for their sale and the division of proceeds as to 70 per cent to the wife and 30 per cent to the husband.
So called add-backs
Items 17 and 18 in the schedule above refer to “add-backs”. The first of these items, item 17, was money that now appears as part of the mortgage, in effect, but was money appropriated by the husband for his legal fees. Item 18 was money that was applied to a planned extension for Town M. Although the wife attributes the need for this payment to a failure on the part of the husband to sign documents when required to do so, the benefit of the planned extension will in fact devolve to the wife and, in my opinion, there should be no adjustment as between the parties for either of the alleged “add-backs”.
I should add that at least since Stanford v Stanford[5] in my opinion the concept of add-backs is not justified or relevant - as such. In this case there is no reason to make any further adjustment pursuant to s 75(2)(o) of the Family Law Act 1975 which is where the adjustment should be made if anywhere.
[5] [2012] HCA 52
So far as the liabilities are concerned, there is no controversy about the mortgage (…148) but the wife argued, through her counsel, that the National Australia Bank (NAB) line of credit (item 19) in the sum of $43,313 should be the husband’s sole responsibility. This amount, it is common ground, was applied as to $14,000 to Town M, $21,000 to Town Y and $15,000 for the husband’s Toyota vehicle (item 8 above). Obviously, by trial, the original loan of $50,000 had been repaid at least in part. The Toyota vehicle is included as an item of property and it will be double-counting to saddle the husband with that debt as well. The $21,000 that went towards improvements to Town Y is represented in part by the value of the property itself and again the debt should be borne jointly. So far as the $14,000 that went to Town M again the sum was represented in the value of the property and it would therefore logically that as the wife is to retain this property[6] (which she owned before the parties began their relationship) there should be an adjustment against her of some $7,000.
[6] Outside the division of property
It was argued on her behalf that various other debts owed by the parties should be taken into account and in particular that should mean that I should in some way offset that against that $7,000.
It is proper and appropriate that I should take account of the debts that each of the parties owe outside the balance sheet (“Other debts”) and I note in this regard the wife accepts and will provide an indemnity in respect of Ms V and Ms W (which might otherwise be attributable at least in part to the husband). The husband agreed to, in effect, be responsible for Mr T, Ms E and Ms D. As with so much of this matter however, the amounts, the liability for and virtually everything else about these loans were in dispute. While the $7,000 adjustment in the paragraph above against the wife may logically be appropriate in the overall scheme of things, it ought to be taken into account under s 75(2) and its comparative insignificance in the overall scheme of things would leave me to make no specific adjustment for it.[7]
[7] De minimis non curat lex – which means about the smallest things the law does not worry.
Accordingly, the total of the assets (other than the superannuation items 1-16) in the table above is of $1,084,886.[8]
[8] Deleting the camper ($15,000) and the fuel tanks ($1,000) which are dealt with separately in my orders.
From that amount must be deducted for the purposes of a consideration of the property settlement between the parties the value of the Town M Property at $163,750 leaving a total property pool of $921,136. From that it is necessary for these purposes to deduct the two debts previously referred to of $184,922 and $43,313. This leaves an amount of $692,901. I will return to how that should be divided between the parties shortly.
Superannuation
The table of superannuation sets out the values attributed by the parties and it was common ground that the wife would retain the funds that she had (items 32-34) - all of which were acquired prior to the commencement of the relationship (although possibly augmented by payments from time-to-time during the marriage). The evidence about this latter point was so unsatisfactory that I am unable to make any specific finding.
So far as the husband is concerned, his military superannuation is the largest asset, other than the Town Y property. As at or about the commencement of the relationship between the parties, I am satisfied for these purposes that its value was about $60,323.77. That means that his total superannuation entitlements as at trial were $527,857 from which, if I were to notionally deduct the value of his MSBS superannuation as at the date of cohabitation of $60,323.77, this would leave a figure of some $467,533.
In parallel the wife’s four superannuation entitlements aggregate to some $86,628. So far as I am able to ascertain they are all accumulation funds (as are the funds of the husband other than the MSBS). It is not sought by either party that there should be a split of any funds other than the MSBS and I am satisfied that a proper value has been obtained for that fund as at the date of trial in accordance with the Regulations.
Notwithstanding the forceful arguments of counsel on behalf of the father, it seems to me that there is little to be said from an equitable point of view that the superannuation funds notionally at least accumulated in the husband’s hands during the course of their cohabitation amounting to some $467,533.23 should not be regarded as having been contributed to (not directly) equally by the parties during the course of the relationship.
However, against that must be set the proposition that the wife already has some $86,628 in superannuation accumulated prior to the relationship the continuance of which has been facilitated by the efforts by both of the parties and it would be unreasonable not to take account of the fact.
Although the increase in value of the MSBS superannuation is of the order I have suggested above, that would not have been possible if the original superannuation entitlement of the husband under the MSBS scheme had not existed.
Accordingly, in my opinion, it would be reasonable to adjust (by a splitting order) the superannuation entitlements to reflect a 40 per cent to the wife division of the increase in his superannuation entitlements over the period of the relationship. This takes account also of contributions made post separation and any (necessarily minor) adjustment for what might loosely be termed “s 75(2) factors”).
Total superannuation $467,533
40% = $187,013
I am noting in this regard that I have found that separation occurred as the wife suggested and as logic would confirm on 28 January 2014. This means that there should be a base amount in favour of the wife in the MSBS scheme of $187,013. This means that the husband will finish up as a result of these orders with some $330,844 in superannuation and the wife some $273,641.
I acknowledge to some extent that a mathematical approach cannot be strictly applied in the way I have outlined above. Values of money change and even over the comparatively short period of the relationship of the parties, there is no doubt that if inflation had been taken into account in relation to the initial entitlement that the parties had, there might have been a different figure arrived at.
However, I did seek during the course of final submissions from counsel for the husband that she give me a figure that might be appropriate and notwithstanding my asking on three occasions, and drawing that fact to her attention, I was not successful in obtaining a definitive answer from her.[9] Although I have expressed this mathematically this process is indicative and illustrative of how I determined what splitting order should be made to do justice between the parties.
[9] See p 595 transcript
A splitting order will be made accordingly on the basis that in all the circumstances on the evidence available in my opinion this is a just and equitable order in the circumstances.
The resolution of matters in the Balance Sheet in relation to property other than superannuation substantially resolves the matters that are properly to be taken into account under s 79 of the Family Law Act1975 (Cth). I am conscious of the fact that Stanford v Stanford prescribes that I should not make an order altering the interests of the parties in property unless it is just and equitable to do so.
In the exercise I have conducted above I have looked at the provenance of the various assets of the parties and I have indicated from that what I believe the contributions of the parties are.
Nevertheless, there were matters occupying much time during the course of (what was in the end a long trial) which would appropriately be the subject of some comment from me even if in some circumstances, I am unable satisfactorily to resolve some of these issues between the parties.
The physical effort of each of the parties in the renovation and maintenance of the Town Y property
In what was a lengthy (and somewhat tedious) cross-examination of the wife about the work that was done around the property the only conclusions that I could draw were that the husband probably did less then he asserted and the wife did less then she asserted and each’s assessment of the efforts of the other party were unlikely to have been accurate.
What is clear from the minimal concessions made by each of the parties is that each of them did participate physically in the work about the property and in its renovation. In this regard I am prepared to accept on the basis of the nature of the tasks referred to and the way in which the wife responded to some of the answers put to her by counsel for the husband that it is probable that more of the physical work around the property was dealt with by the husband than by the wife. However, this in my opinion is of little consequence, as to the extent that was the case it is properly off-set by the additional work undertaken by the wife in relation to the care of the children. It was common ground that the husband (by mutual assent) undertook quite lengthy periods of deployment overseas usually in circumstances of some potential physical danger. This had a dual effect of removing him from being able to be involved for some periods in the day-to-day care of the children and also that he was able to accumulate more money for the parties and their relationship and their assets because of the higher salary offered for those deployments.
Care of the children
I have indicated that it is my finding that the wife conducted a higher level of parental care then did the husband. This is not in any way to denigrate or diminish the efforts he genuinely did put in in relation to the children. Again there was some controversy between the parties about the extent to which each of them was involved in the care of the children and in their physical, emotional and psychological support.
It might be argued that each of them contributed negatively towards the children’s psychological and social support because of their total inability to agree on anything, and further, their inability to hide from the children the extent of the conflict between them. The parties’ individual evidence about these matters both in their affidavits and orally together with the thoughtful conclusions reached by the family reporter[10] lead me to conclude that the primary responsibility for the care of the children was with the mother and that she carried out that task in an entirely satisfactory way.
[10] Ms F - Family Report dated 4 June 2015
Each of the parties sniped at the other on a regular basis about various aspects of his or her care of the children. For example, the husband was criticised for changing a medical testing appointment for one of the children. I do not think the criticism was justified in itself except that it illustrated very clearly the inability of these parties to be able to demonstrate any level of cooperation not withstanding that both of them said and continue to say that they were anxious to have a good relationship for the benefit of the children.
For his part the husband asserted the mother did not care too much about the fact that one of the children needed glasses. It was asserted that she was careless as to whether or not the child wore them. I do not accept that this was in any way an intentional matter on the part of the mother. I believe the incident referred to has been blow up out of proportion. I accept that the school reports refer to the question of glasses but I do not regard them as in any way diminishing from the mother’s ability properly to care for the children.
Other contributions
The husband was at pains to assert that his contributions included contributions to the running of the wife’s business in the USA. It is possible that he did contribute - but the contribution was, in general terms, relatively minor. I accept that he probably did work on the books even after they came to Australia and the business, having been rented out, continued for some years after their arrival in Australia. His contribution in this regard does not have a significant effect on my conclusions about orders to be made in relation to the property, although I do take it into account in a general way.
Contributions made more onerous
The wife asserted, but I do not accept, that the husband’s attitude towards her during the course of the marriage was so controlling as to fall within the definition of family violence under the Family Law Act. She might argue that this may have made her contributions more arduous. I do accept this.
The fact that the husband was away as often as he was during the course of the marriage and the fact that he was in a situation of comparative, or at least potential danger, made her contributions in looking after the children and the house during his absence more onerous. However, as with the husband’s contribution to the wife’s business in my opinion neither of these significantly alters the balance of weight to be given to the contribution made by the wife.
Violence
This is an issue which arose both in relation to the children and in relation to property. There is no doubt that the husband is by nature a person who wants to be in control. I do not doubt that he, from time to time, exercised that control. I formed the opinion having observed him for some time in the witness box that he had formed the view that he was the victim of what he regarded as a sociopathic behaviour of the wife. He found it difficult if not impossible to provide information which would lead anyone to conclude that the wife’s behaviour was anything like my normal understanding of what constitutes sociopathic[11] behaviour. He also repeated (to his considerable detriment in my opinion, on a number of occasions) that she was a “pathological liar” and that he was convinced this was so. This obsession, in my opinion is misplaced, led him to decide to record conversations between her and him on a number of occasions. He asserted, but I do not accept, that the wife was aware of his recording of their conversations.
[11] A person suffering from chronic mental disorder with abnormal or violent social behaviour.
In my opinion, given the nature of his employment and the advice that he had apparently obtained, he was well aware of the fact that his recording of those conversations without her consent may constitute a criminal offence and that he was determined now to ensure that the possibility of prosecution was closed off.
I stop short of determining that his evidence about this matter was false. I am satisfied however that whatever may have been the situation, he certainly had reconstructed that evidence in his own mind (one hopes in an honest attempt) to convince himself that the wife either knew or ought to have known that she was being recorded.
Curiously, notwithstanding all those efforts, his illustrations of her so-called pathological lying, were in my opinion, almost certainly examples of either misconstruction, misunderstanding or a failure effectively on the part of either the husband or the wife (or both) to communicate. I could find no evidence from the matters put forward by the husband that the wife was consistently telling untruths and in particular was doing so (in what he would have me believe) was a pathological fashion. Moreover, I do not know that much in fact turned on any of these issues in the overall scheme of things between the parties.
Returning however to the husband, he clearly felt that he was a victim in some way during the latter part of the parties’ relationship. Curiously their relationship limped on for some years after the time when the husband said they had separated. During this period the parties continued to make plans about where they might live and apparently continued with a sexual relationship which the wife described as being something which “kept him happy”. It is not my part to determine what should or should not be done in human relationships and whatever worked for the parties is something entirely between them. However, the conclusion I might reasonably draw from the activities of the parties and their evidence was that while each asserted that the other was in some way behaving in a controlling or even violent way was not a matter about which I can make any proper finding. I make no such finding.
Section 75(2) factors
There are two factors under s 75(2) which might affect my determination. These are the discrepancy in the income between the parties - which will persist into the future. Even if as the wife confidently asserts (but in my opinion with little substance to support it) she is able to reinstitute a successful business in animal services (or some similar activity) in the USA on her property at Town M, it is probable in my opinion, that her income will never match that of the husband. That is a factor which is appropriately to be taken into account. It was also a factor conceded by counsel for the husband.
On the other hand it is equally true that no matter how the arrangements about the children might work out, it is probable in the future that the husband will bear a larger proportion of the costs in relation to his spending time with the children. The orders I have made about this matter involve his paying his own fares to the USA to see the children and his sharing equally with the mother the fares of the children when they travel to Australia.
The mother curiously has conceded that she could in fact find money to provide transport for the children if it were required. This money would come from her family, although I think the wife believes in some way there is a Magic Pudding arising from the property settlement which will give her enough money to do all of the things she wants to do including if necessary providing fares for the children.
In my opinion the discrepancy between the parties’ incomes coupled with the question of transport which (without saying that this is “the price” of the mother’s returning to the USA) has been brought about by the mother and taking account of her admission about her access to appropriate funds, means that there should be no further adjustment under s 75(2) from the findings I have earlier made about contribution.
However, as a result of the orders I make the wife will retain the property that she previously held in the USA at Town M. This is a significant but not overwhelming asset in her favour and provides her with the basis for her future income and housing. It is unquestionably an advantage in her favour. It does not require a major offset between the parties because of the husband’s capacity from his employment, skills and experience to make his own provision into the future. In my opinion this factor means that there should be an adjustment in the husband’s favour of 5 per cent (or a differential of 10 per cent).
It is obvious from the comments I have made during the course of these Reasons for Judgment that I had come to the conclusion after a consideration of all of the evidence that the property in Town M should remain with the wife and that the property in Australia using the term property in the inclusive sense should be divided between the parties in the proportions of 70 per cent to the wife and 30 per cent to the husband.
Reasons for Division
The conclusions I have reached in this regard are based on the following considerations which have been the subject of my determination in the preceding paragraphs of this judgment.
The remaining property in the USA was not in any substantial way (at least supported by any appropriate evidence) contributed to by the husband. Although I believe (and it was not proved) that the property is in both names it should be transferred as a result of my orders to the wife. Effectively it should be excluded from the calculations except as a factor broadly to be taken into account under s 75(2) as set out above.
The sale of the wife’s property in the USA (again perhaps contributed to in small measure by the husband) was almost exclusively responsible for the acquisition of the Town Y property. It is true that the husband’s income as well as the wife’s to some extent were responsible for the maintaining of that asset and the husband has continued to make payments for mortgages and rates since separation. Nevertheless, the overwhelming contribution for the property in a financial sense was from the wife. The precise amount contributed from the USA funds of the wife was (as several days of cross-examination demonstrated) difficult to be precise about. Whatever it was however, it was significant.
I have found that the contributions of the parties in a non-financial way were greater on the part of the husband in a physical sense and, greater on the part of the wife, in the capacity of home maker and parent. In my opinion these factors substantially evened out for the reasons I have indicated previously.
Finally, the factors under s 75(2) I have determined should result in only a minor adjustment in favour of the husband. That adjustment would be in the nature of 5 per cent or 10 per cent on a differential basis. This is primarily due to the fact that the wife will (re)acquire as a result of these orders the property in the USA and that will be an asset in her hands. The other factors under s 75(2) for the reasons I have previously indicated balance out.
Mathematically any number of calculations might be made to arrive at a figure for contributions made by the wife. Such an approach is substantially artificial because of the differing values of contributions at different times. In my opinion the best conclusion that I can reasonably come to on all of the evidence and balancing the factors that I have indicated above is that the wife should have received 75 per cent of the property based purely on contribution which should be reduced to 70 per cent after the allowance is made for the s 75(2) factors.
This results in the following, if the husband is to keep the Town Y property:
[75] above $692,901
70 per cent = $485,030
Less NAB $23,000
Less Chase Morgan $3,000
Less Ford $10,000
Less furniture $2,500
= $446,530 (as adjusting payment husband to the wife)
Summary
In summary therefore, in my opinion the property should be dealt with in the following way.
1.If the husband is able to do so he should have the opportunity to purchase the Town Y property. Notwithstanding the complaint about the period from Mr Gill, in my opinion sixty days is a reasonable time for him to have to try to achieve that end. In doing so he is going to be obliged to pay to the mother some $450,000 which may be quite difficult for him to raise. I would expect if he recognises that the task is beyond his ability at an early point, he will not wait out the full period of sixty days that I will provide.
2.The property at Town M, by common accord, will revert to the wife and orders will be made to ensure that the transfers necessary are effected.
3.The camper will be sold in accordance with the orders that I make either - by her before her departure or by some person nominated by her after her departure. (That person could include the husband of course.) The net proceeds of the sale will be divided between the parties as to 70 per cent to the mother and 30 per cent to the father.
4.The father will be responsible for selling the fuel tanks consistent with the orders I have made above. The net proceeds of the sale will be divided between the parties as to 70 per cent to the mother and 30 per cent to the father.
5.The mother will retain the superannuation she has in the USA and be entitled to a splitting order in her favour as set out above relating to 40 per cent to the difference between what the value of the husband’s superannuation in the MSBS fund was in 2004 and the value of all of his superannuation at the present time.
6.Each of the parties will indemnify the other in respect of any loans that he or she may have incurred otherwise in the financing of these proceedings or the matters arising from the breakdown of their relationship.
7.I will make specific orders about certain items of property that appear on the Balance Sheet not otherwise dealt with in my comments set out above. I have made orders about that.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 20 October 2016.
Associate:
Date: 20 October 2016
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Family Law
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Property Law
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