JUSTER & JUSTER
[2012] FMCAfam 878
•28 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JUSTER & JUSTER | [2012] FMCAfam 878 |
| FAMILY LAW – Parenting and property – 14 year old child ─ what school child should attend – best interests – contributions during the marriage – s.75(2) factors – wife misleads Court – credibility. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 75(2), 79 |
| Lee Steere & Lee Steere (1985) FLC 91- 626 Pastrikos & Pastrikos (1980) FLC 90-897 Re G: Children’s Schooling [2000] FLC 93-025 Russell & Russell (1999) FLC 98-877 |
| Applicant: | MR JUSTER |
| Respondent: | MS JUSTER |
| File Number: | MLC 11035 of 2010 |
| Judgment of: | Curtain FM |
| Hearing date: | 4 July 2012 |
| Date of Last Submission: | 10 July 2012 |
| Delivered at: | Dandenong |
| Delivered on: | 28 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Macfarlane |
| Solicitors for the Applicant: | Kennedy Guy |
| Counsel for the Respondent: | Ms Sleeth |
| Solicitors for the Respondent: | Peter R. Just Lawyer |
| Counsel for the Independent Children’s Lawyer: | Mr Lynch, as solicitor advocate |
| Independent Children’s Lawyer: | Peter Lynch Solicitors |
ORDERS
THE COURT ORDERS THAT:
Parenting Orders
The final parenting Orders made on 23 March, 2011 in paragraphs, 4, 6 and 8 to 16 inclusive remain in full force and effect.
The final parenting Orders made on 19 May, 2011 in paragraphs 1, 2 and 5 remain in full force and effect.
The final parenting Orders made on 12 December, 2011 in paragraphs 1 to 6 inclusive and paragraph 8 remain in full force and effect, subject to Order 4 below.
Paragraph 1 of the Order of 12 December, 2011 be varied to provide that the wife be at liberty to enrol and have [X] born [in] 1998 (“[X]”) attend [E] School (“[E] School”) and otherwise the parties retain equal shared parental responsibility for [X].
The wife sign all documents and give all directions to [E] School to provide the husband with access to the normal information, documents, school photographs and other details that a parent would ordinarily be privy to, at the expense of the husband (if any).
The husband be at liberty to contact [E] School at any reasonable time to make enquiries that a parent would ordinarily make about the progress of their child and also be at liberty to attend parent-teacher nights, school concerts and such like, that a parent would ordinarily attend.
Should [X] attend [E] School then the wife shall generally deliver [X] to and collect him from [E] School.
The Order appointing the Independent Children’s Lawyer be discharged.
Property Orders
The wife have the sole right, title and interest in the former matrimonial home known as and situate at Property B, in the State of Victoria (“the real property”) and indemnify the husband against all payments and liability pursuant to all rates, taxes and outgoings with respect to the real property.
The wife pay to the husband the sum of two hundred and eighty-six thousand, one hundred and sixty dollars ($286,160) (“the payment”) on or before ninety (90) clear days (“the date”) from the date of this judgment and contemporaneously the husband provide to the wife, at his expense, a Withdrawal of Caveat in registrable form and he shall do all things necessary and sign all necessary documents to ensure that the Caveat is withdrawn over the Certificate of Title to the real property.
In the event that the whole of the payment has not been made by the date then the real property be forthwith sold altogether out of Court (“the sale”), and upon completion of the sale, the proceeds of the sale be applied:
(a)firstly to pay all costs, commissions and expenses the sale;
(b)secondly to discharge any encumbrance affecting the real property;
(c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 9.5 per centum per annum adjusted monthly from the date to the husband; and
(d)fourthly the balance to the wife.
Pending the payment or completion of the sale:
(a)the wife have the sole right to occupy the real property and during such right of occupation the wife pay all instalments pursuant to all rates, taxes and like outgoings of the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust pursuant to these Orders; and
(c)neither party encumber the real property without the consent in writing of the other party, save for the wife to enable her to borrow funds to comply with this Order.
The husband have the sole right, title and interest in the following chattels:
(a)[Make and model of vehicle omitted] motor vehicle;
(b)[Make and model of vehicle omitted] Truck;
(c)[Make and model of vehicle omitted] vehicle;
(d)[Make and model of vehicle omitted] Replica;
(e)[Make and model of vehicle omitted] fibre glass Replica;
(f)[Make and model of vehicle omitted] kit car;
(g)[Make and model of vehicle omitted] Off Road car;
(h)[Make and model of vehicle omitted] kit car;
(i)[omitted] Petrol Bowser; and
(j)the contents of “[omitted] Self Storage” rented by the husband.
The husband have the sole right, title and interest in the following chattels located in or at the real property:
(a)the contents of the garage (save for the motor mower and catcher, which shall be retained by the wife as her asset);
(b)ornamental set of various medals, trinkets and wood carvings including assorted collectables, clock, [omitted] and other small items on top and inside the fireplace;
(c)three (3) showcases of motor racing memorabilia including diecast cars, planes, tanks, motorbikes, signs and other related items;
(d)one (1) bookshelf of motor racing manuals, reference books and year books;
(e)dining room suite and six (6) chairs and extendable table;
(f)stereo amplifier and two (2) speakers including the Phillips DVD player;
(g)120 piece Wedgewood dinner set;
(h)60 piece cutlery set (gold and silver plated);
(i)set of glasses and mugs from Oman and decorated in Arabic paintings/ symbols;
(j)assorted tools and equipment in office;
(k)car spare parts, test bench, test stands and engine hoist; and
(l)taxidermy penguin (including three (3) smaller ones),
and the parties arrange for the husband or agent to collect same within fourteen (14) days, at his expense.
The husband to retain the net proceeds from the post-separation sale of the motor vehicles, totalling $19,400 to the exclusion of the wife.
The parties sign all necessary documents and do all things necessary to arrange for and undertake the sale of:
(a)the hose fitting machine; and
(b)the portable office,
as soon as possible upon such terms and conditions (including any reserve price) as agreed by the parties, and in default of agreement as determined by the parties’ agent seller or auctioneer.
The sale proceeds from Order 16 above be distributed as follows:
(a)to meet the costs and disbursements of any sale; and
(b)55% to the wife and 45% to the husband.
The wife have the sole right, title and interest in her savings at separation of around $158,000 prior to be being disbursed (including add backs of $105,600) and the $71,050 in the Westpac Safe Deposit Box.
The wife have the sole right, title and interest in the benefits paid by the Australian Scholarship Group, to be used solely for [X]’s education expenses.
Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the wife);
(b)the husband shall forgo any claims he may have had to any superannuation benefits belonging to or earned by the wife, which shall remain the property of the wife;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Additional Orders
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Should [X] attend [E] School then the wife shall be responsible for all school fees then remaining after payment of the education insurance policy benefits from the Australian Scholarship Group made available for [X]’s school fees; and
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Juster & Juster is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Melbourne |
MLC 11035 of 2010
| MR JUSTER |
Applicant
And
| MS JUSTER |
Respondent
REASONS FOR JUDGMENT
Introduction
This case involves two matters, first a parenting dispute regarding which school the parties’ son, [X] born [in] 1998 (“[X]”), aged 14 years, should attend and secondly, a property dispute.
The only witnesses called to give evidence were the parties. There was much debate about some issues that could have been easily corroborated with further evidence being called, either lay people or experts, but neither party it appears turned their mind to this and insisted that notwithstanding there was no corroboration of their evidence, they should be believed.
An important issue in this case was the credibility of the parties. On day four when the wife was being cross examined the following exchange took place:
(Counsel for the husband) “… we know that in October 2010 you had savings of $159,000 according to your bank statement?”
“57 something. Yes, 157. Yes. Yes.”
“159 it was, but anyway 157 or 159?”
“Yes.”
“So in a period of nine years - a period of nine years you've saved just shy of $160,000?”
“I - I'm always saving.”
…
“Yes. So what I'm saying to you is that you just can't do it, physically impossible for you to have saved 157 in nine years on your disclosed income?”
“I have - yes. I - I will just save that and I've got lots of presents from, you know…”
“See, you've clearly saved it?”
“Yes. I saved it, yes.”
“But what I suggest to you is this, is that you saved your income and all the expenses relating to the household were paid by my client and that enabled you to save the $157,000?”
“No. I - that's not true.”
“Yes. Well - you say you're very careful with money?”
“Yes.”
“We will move onto the bank accounts now. We've had a look at your bank statements. They show that on 21 October 2010 you withdrew $21,757 from the CBA term deposit. Do you remember doing that?”
“Yes. Because we are - yes. He's moving out of the house…”
“So you withdrew that money?”
“Yes. I did.”
“Where did it go?”
“…I just kept them.”
“Kept where?”
“I kept them in case at first, and then I spend. I will give you list where I spent.”
“So you withdrew $21,757 and kept it in cash?”
“Yes. I kept them, yes.”
“Why?”
“Because we are separating. I tried to save - just tried to keep as much as I can I think.”
“The term deposit is in your name, isn't it?”
“It's in my name, yes.”
“Yes. There's no way known that he could access that, could he?”
“It's sorry?”
“The husband - the term deposit, that $21,757 sitting in the Commonwealth Bank account, is in a term deposit in your name?”
“That's right.”
“The husband cannot withdraw that, can he?”
“No. He can't.”
“So why did you move it?”
“… I tried not let him find the money probably, yes.”
“Yes. You wanted to hide it, that right?”
“Yes...”
“Yes. So that went into cash in the house. And you got another Commonwealth Bank term deposit of $64,361 on 21 October 2010. You withdrew that as well, didn't you?”
“Yes. I did.”
“That term deposit was also in your name?”
“Yes.”
“And the husband couldn't withdraw those funds, could he?”
“No. He can't.”
“No. And so where did those funds go?”
“I just kept them, and I spent them. You see the list where I spent.”
“We will get to that?”
“Yes.”
…
(Curtain FM) “And you wanted to hide that money too, that's why you withdrew it?”
“I tried to you, yes.”
(Counsel for the husband) “But why did you want to hide it when he couldn't - why hide it when he could not get the money anyway from the bank?”
“…I know he wouldn't pay any child support. He would waste the money. I just tried to - yes.”
(Curtain FM) “Were you going to hide it from him and never tell him about it?”
“I didn't tell him.”
“Yes?”
“I didn't…”
“And that was your intention, you weren't going to tell him about it, were you?”
“I will - I will not tell.”
“No. And you weren't going to tell the court about it either?”
“In…”
“That's the truth, isn't it?”
“Yes. I…”
“Yes.”
(Counsel for the husband) “And we've got another one, the term deposit with the Westpac Bank, of $50,000 withdrawn on 9 December with interest of $3400. You withdrew that as well, didn't you?”
“Yes.”
“And then where did they go?”
“They all cash. I just withdraw and I spent them on the cars, on the…”
(Curtain FM) “Where did you keep the cash, at home?”
“No. No. I - I have a safe.”
…
(Curtain FM) “…Where's the safe?”
“In Westpac, Westpac in the city, yes.”
“Do you know of that?” (turning to the husband’s Counsel)
(Counsel for the husband) “ No. No.”
(Curtain FM) “Do you have the key with you or access to it with you now?”
“No. The money is all gone. The money has all been spent. So there's no - yes.” [This is the wife’s first lie]
…
(Curtain FM) “In the city, isn't it?”
“Yes. It's - it's - the money is all gone.” [she repeats her lie]
“Where is this safe?”
“Yes…in Collins Street.”
“All right.”
“Right. So do you have…”
(Curtain FM) “You will authorise the husband's solicitor to go and inspect it today over lunch.”
(Counsel for the husband) “Yes.”
“Have you got the key with you?”
“No. It's at home.”
(Curtain FM) “ Okay. You will go home and get the key over lunch and you will come back with the key, and your instructor can go and inspect it.”
(Counsel for the husband) “Thank you, your Honour.”
“And you say there's no funds in there?”
“There's still a little bit of it left. One…” [This is the third lie]
“So a little bit now. There was none before. There's a little bit.”
(Curtain FM) “How much is a little bit?”
“I don't know. I don't know. I just…”
(Counsel for the husband) “Is there a $157,000 in there?”
“No. No. Definitely not.”
“Is there a $100,000 in there?”
“No. I don't think so. I don't know. I don't know.”
…
(Curtain FM talking to Counsel for the husband) “Your instructor can go with the wife. Okay. And he will be present. He can go with her, get the key physically from her. You’ve got the key to your house?”
“Yes. I – yes.”
“And you can find the key to the safe?”
“Yes.”
“And you will give it to the husband’s solicitor. Okay? You will go with …”
(Counsel for the husband) “The wife may have to accompany him, because he may not have authority.”
(Curtain FM) “Yes. You will go in a taxi there and back, and your instructor can pay for the taxi. And you want to look at the storage units?”
(Counsel for the wife) “Yes.”
(Curtain FM) “ All right. You can go with the husband, and you can pay for the taxi for that purpose. All right?”
(Counsel for the wife) “If it pleases.”
(Curtain FM) “And everyone can be back here at 2.15.”
…
COURT RESUMED
(Curtain FM) “Mr MacFarlane, have you got instructions about the bank records, or bank account?”
(Counsel for the husband) “I have. Well, I’ve got instructions about the contents of the bank, your Honour.”
“Yes. What’s the position?”
“My instructor counted the money.”
“How much?”
“There was money there. He counted $71,050, your Honour.”
“$71,000?”
“$71,050. There was another document, your Honour, in the deposit box.”
“What was that?”
“Well, my instructor asked to see it, and the wife would not show it. She’s reluctant, I understand, for various reason – and perhaps my friend can elicit from her reasons…”
…
“My recollection is that she initially said there was nothing in it, and then she said there was a little, and then she said she didn’t know how much was there. And that’s how it was left, your Honour.”
“Well, if you want you’ve got leave to cross-examine this lady.”
…
(Counsel for the husband) “So do you now concede that you’ve been hiding money from the husband?”
“Yes, I’m sorry, I did.”
“Do you now concede that you’ve been lying to this Court?”
“Yes, I’m sorry.”
“Because before lunch, when you were asked questions about how much money was in the safety deposit box, you initially said none. And then you said a little, didn’t you?”
“Yes, I – I did.”
“You know – you’ve always known how much money you had in that safety box, haven’t you?”
“I –I didn’t know exactly how much. I roughly, yes – roughly how much, yes.”
And there was a subsequent exchange as follows:
“What I’m putting to you is this: in October of 2010 you had $158,000 in bank accounts?”
“That’s right. Around…”
“You agree with that. And then you in your affidavit say that “I’ve withdrawn that money, and I’ve spent it.” And then you set out how you spent it: $30,000 on America and Canada, the computer, all of that. And all that totals $144,000. So you’ve said you spent $144,000. Then you said the rest has just been spent as well, but you said 144 there. We’ve now found another 71, which takes it up to $215,000 which you’ve had?”
“Well, I’ve spent money at the – these two years I made money as well. Some money I – just – the money I had in saving was my income all combined together. They are…”
(Curtain FM) “I do. So are you saying that you spent $144,000 plus you have $71,000 left?”
“I – I spent…”
“Or is it in paragraph 76 when you’ve set out this – is some of that lies? You haven’t spent all that money at all?”
“Some I haven’t spent, like, barrister fees I haven’t spent. But I’m going to spend.”
…
At paragraph 76 of her affidavit filed 26 June, 2012 the wife alleged she had spent $144,270 of these monies, including $10,000 on “lawyer for family law matter document” and the following exchange took place:
“You haven’t spent that at all?”
“I – I spent…”
“Have you spent that or not?”
“I’ve still owe Mr…”
“Have you spent $10,000 on a lawyer for a family law matter document? A simple question, madam. Either yes you have, or no you haven’t?”
“I – I haven’t spent that…”
Subsequently I asked the wife the following:
“While we’re waiting, Ms Juster, why didn’t you tell the Court about that money you had in the safety box?”
“Yes, I’m sorry. I – I – yes, I lied, I’m sorry. I – because I know the husband will never pay any child support, and I want [X] go to the best school…”
“It doesn’t excuse lying to the court, you know?”
“Yes, I’m sorry.”
In all the circumstances of this case I have formed the view that, in relation to the property dispute I generally prefer the evidence of the husband over that of the wife given her untruthfulness and dishonesty in her use, control and possession of cash funds. In relation to the parenting dispute I prefer the evidence of the wife over that of the husband, given her long standing historical role as primary carer and the minimal role played to date by the husband in [X]’s life and welfare.
Background
The husband, Mr Juster was born [in] 1943 and is aged 68 years. He has been historically employed as a [omitted] and operating his own business, but now says that he is a pensioner receiving the invalid pension. The wife is Ms Juster (also known as [Ms Juster]) who was born [in] 1969 and is aged 43 years. She is employed as an [omitted].
As referred to earlier, the parties have one child, [X] who is aged 14 years.
The parties first met in 1995 when they were both working in Singapore. They were married [in] 1996 and according to the husband and the Independent Children’s Lawyer, separated on 15 October, 2010. It is the wife’s allegation that the parties were separated under one roof in about mid 2009, however in my opinion, that is unlikely, given the following:
a)in the husband’s Initiating Application in Part C, page 4, he sets out that the parties separated on 15 October, 2010. In the wife’s Response filed 26 June, 2012, at page 4, Part D (where it is required to set out any facts in dispute in relation to the Initiating Application), she says no to the question “Are there any facts in the Initiating Application which are not agreed?”; and
b)the wife said in her evidence that when it was apparent to her that there was a final separation, she then went to the bank and withdrew a lot of cash from a number of accounts to hide it from the husband. This occurred in October, 2010. One would have thought that if she was right about the separation in mid 2009 that is when she would have undertaken this devious act, rather than in October 2010 when the husband said that they separated.
The evidence
The parties relied on the following documents:
A. The Applicant husband:
a)his Initiating Application filed 23 December, 2010;
b)his affidavit sworn 26 June, 2012 and filed 28 June, 2012;
c)his Financial Statement sworn 3 July, 2012 and e-filed on 4 July, 2012 ;
d)his Outline of Case handed to the Court by Counsel on the first day of hearing, on 4 July, 2012; and
e)the Family Report of Mr E.
B. The Respondent wife:
a)her Amended Response filed 26 June, 2012;
b)her affidavit sworn and filed 26 June, 2012;
c)her Financial Statement sworn and filed 26 June, 2012; and
d)a one page document titled, ‘Outline’ which was handed to the Court by the wife’s Counsel on the first day of hearing on 4 July, 2012.
Parenting matter
The dispute about the school
It was the wife’s case that [X] should attend [E] School (“[E] School”) for the remainder of his secondary education. She saw a number of benefits for him and the parties could not agree on this; in fact, the husband wanted [X] to remain at his current school, [O] School at the [suburb omitted] Campus (“[O]”).
The husband objected to a change of school for the following reasons:
a)[X] has been at his current school, [O] since Prep;
b)That he has been a class captain and/ or school captain at [O];
c)He is near the top of his class in three of five of his subjects;
d)He can walk to and from school, which is particularly useful when he cannot be collected by a parent, as the home is only a kilometre from the school;
e)The bursary [sic] can cover his current school’s fees;
f)He is happy at that school;
g)The husband wants a “say” in his son’s education and not left solely to the wife;
h)If he attended the school proposed by the wife, [X] would find that difficult if he was to use public transport, particularly as he does not like arising early; and
i)He doubts the wife can find the extra $10,000 each year to meet the higher school fees.
Overall the husband said that there was no gain in a change to [X]’s school and it was best to leave him in a school where he is content and where he is in a stable routine.
In evidence in chief, the husband said that he could not contribute to his fees as he feels he cannot work anymore, he is on an invalid pension and it would be impossible for him to pay in full or part the extra $10,000 per annum that would be required to send [X] to [E] School.
It was put to the husband by the wife’s Counsel that [X] had friends, through his [sport omitted] club, that already attend [E] School. He disputed that it was 10 children and then said he did not know. He conceded that if asked to go, [X] would attend [E] School.
In further cross examination by the wife’s Counsel a letter dated 20 April, 2010 addressed to the Principal at [E] School and signed by the parties was put to the husband, and marked exhibit ‘W1’.
The letter says as follows:
“Our son [X]’s name is on the waiting list of your school for possible entry at Year 7 in 2011. As parents, we are very keen to have [X] start at [E] School for a better opportunity and higher standard education.
Attached are certificates/ assessment reports [X] has achieved during his earlier years, especially his intellectual assessment shows his IQ superior score 151. Hope these will help his application success. If you have any queries, please contact us anytime.
Yours sincerely
[Ms Juster] & [Mr Juster]”
The husband acknowledged the letter but said he had no recollection of it, his signature may have been “transposed” saying that the signature had been put there, but not by him. He also said that in 2009 and 2010 he had mental health issues and by implication did not give an informed consent. I note however that his own Case Outline and chronology sets out that he was ill with depression and in and out of hospital from July, 2009 to January, 2010 [and this was subsequently confirmed in evidence], whereas the letter was signed three months later in April, 2010. In chief, he said he was on medication until July, 2010 from which I imply this provided some emotional and mental stability in his life at this time. On hearing the evidence of both the husband and the wife on his topic, I find that on balance the husband did voluntarily sign this letter and at that time when he signed the letter he did not object to his son attending [E] School.
In cross examination by the wife’s Counsel he said, “…He has given me one good reason why he wanted to go to [E] School: they have a swimming pool and [X] likes to swim…”
When under cross examination by the Counsel for the wife the following exchange took place:
(Counsel for the wife) “You’re aware that [X] sat the scholarship exam for [E] School twice?”
“Once. He sat an entrance exam the first time.”
“Okay, so he has shown an interest in that regard to attend [E] School?”
“He would do whatever his parents have asked him. His mother would have asked him to go there.”
“When was the entrance exam?”
“When he was in form 1. They went to China on a holiday and the day he got back or the next day, he had to go to an exam and he failed his first attempt to get qualified for [E] School.”
(Curtain FM) “Tell me, did you know he was going to sit this entrance exam?”
“Yes, I did.”
“Did you stop it?”
“I could – I tried to stop my wife from going overseas but with no result.”
“No, no, did you stop him sitting the exam?”
“No, I did not, no. No, I did not.”
“And why is that?”
“He sat the exam.”
“Well, why did you let him do it?”
“Because my wife wanted me to do it.”
“And you didn’t object to the possibility of him going to that school at that time?”
“I was told at that time that he wouldn’t get into the school because of the back numbers and qualifications of people going to [E] School. I see no problem with him going …”
“So you thought it was a waste of time. You let him waste his time?”
“I did – I don’t think he wasted his time. I think he got some valuable information back.”
“Okay?”
“That he was high in mathematics and English and that his humanities failed, as I remember.”
“Say he sat that exam and could get in; would you say he couldn’t go at that time?”
“I would have said – yes, I would have said no.”
“Okay?”
“I’ve never agreed to him going to [E] School.”
“All right, but you let him sit the exam – the entrance exam?”
“Yes, I did.”
The 2012 mid year report from his current school, [O] in relation to [X] was put to the husband in cross examination by the Independent Children’s Lawyer. The husband conceded that [X] could work harder and better but that he is lazy. When put to him that [X] could work more effectively at another school the husband denied this, saying that in his view [O] was the best school in the area. The husband conceded that he did not know if [X] had friends at [E] School and he also said that he was popular boy and he makes friends easily. It was put to the husband that it would not be difficult for [X] to make new friends at [E] School but the husband did not accept that proposal. He did not know whether [E] School offered a broader range of sport for [X], who clearly has an interest in many and varied sports and he again confirmed that he would not agree to pay any school fees for [E] School.
The husband conceded that he viewed the school grounds at [E] School but has never spoken to the Principal or teachers at the school and that two of his nephews went there and both now have successful careers.
Relevant Legal Principles
Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the child is met by:
a)ensuring that child has the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child; and
b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.
Section 60B(2) of the Act sets out the principles underlying those objects They are that (except when it is or would be contrary to a child’s best interests):
a)The child has the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)the child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child;
d)parents should agree about the future parenting of their child; and
e)the child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will consider that in detail later.
The parents in this matter do not seek to vary any further parenting Orders. They are content with the current Orders and only have a narrow parenting dispute in relation to which secondary school [X] should attend in the future.
Section 60CC factors
The two primary considerations are set out in s.60CC(2) of the Act. They are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
See paragraph 46 herein regarding family violence. [X], under the current parenting Orders has an opportunity to have a meaningful relationship with both parents.
As to sub-section 60CC(3) of the Act:
Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The Independent Children’s Lawyer in his final submissions referred me to paragraph 41 on page 11 of the Family Report dated 10 November, 2011 which was prepared by Mr E, a Family Consultant attached to this Registry (“the Family Report”) which says the following:
“41. [X] presented as a sensible and mature enough adolescent who was able to clearly articulate his own independent views about the nature of his respective relationships with his mother and father and what he would prefer in relation to his living arrangements and the time he would like to spend with his father. Whilst cognisant of Mr Juster’s opinions about maternal influence, the writer does not share his views on this issue. [X]’s comments about spending time with his father appear to be borne out of the historical nature of his relationship with the latter, as well as what he views as being appropriate for a young man who is used to a particular lifestyle where his father has not always been present in his experience. The writer believes that significant weight should therefore be attached to [X]’s expressed views.”
(I should add here that the Family Report did not investigate the school issue now in dispute between the parties).
I was advised by the Independent Children’s Lawyer from the bar table (without objection) that he recently had a meeting with [X] and during their discussion raised the question of what school he would want to attend. I was further advised that [X] said he would like to go to his current school but would not object to the school proposed by the wife namely, [E] School.
In the case of Re G: Children’s Schooling [2000] FLC 93-025 the Full Court said at page 87,415 the following:
“It is thus clear that proper regard must be had to the expressed wishes of the children and that reasons for decision must reflect their significance. However, there is no presumption that decisions should accord with expressed wishes and it is not to be expected that lengthy reasons for departing from expressed wishes is the equivalent to showing “good reason” for doing so.”
[X]’s views on this topic do not assist me much. His current preference is to remain where he is but it is not a strong determined view. He is content to change schools if advised to do so.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
The evidence disclosed that [X] has a close and loving relationship with his mother. It appears that over the years with his father being frequently absent, working in other parts of Australia or overseas, the wife has been the primary carer and promoter of [X]’s welfare. Consequently he clearly is very close to his mother.
Sadly, the husband could not be described as a ‘hands on’ parent. He has been involved with his son’s care when he has been available but one has to query his commitment given the frequent allegation by the wife that when the husband would return from his work (whether overseas or interstate) he did not always make [X] his priority and was heavily involved in his business or [omitted]. During 2012 he has never had [X] in his care for more than a few hours, usually taking him to the movies, or go-kart racing or having a meal at a restaurant. He has never availed himself of an opportunity to have a substantial and significant role in [X]’s life since separation. He has not requested nor had him for holidays, on weekends or even overnight in 2012. Notwithstanding this, [X] clearly loves his father and one suspects, would like to see more of him.
The net result of all of this is that the wife is and has been more involved in [X]’s life and is better informed of his strengths, needs, wishes and weaknesses having had a day to day role in the care of [X] from his birth.
In Re G: Children’s Schooling the Court said at 87,416:
“…we approach the question of the wife’s application without any legal presumption that favours acceding to the proposal of the parent with whom the children are living... Although there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance.”
(ii) other persons (including any grandparent or other relative of the child);
Not relevant to [X]’s education.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
I refer to my comments above in paragraphs 33- 35 without repeating same. It appears that the major long term issues in relation to [X] have generally been exercised by his mother. Whilst the husband could say that due to his absence working interstate or overseas he has been unable to be involved in a lot of [X]’s life, the reality is he could have made a greater effort to be involved with [X] and his welfare.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The husband prepared a statement setting out how his gross income of $265,455 that was earned recently in 2011/2012 was distributed. This was marked exhibit “H 5”. He wrote at the bottom of that exhibit that he earned a taxable income of $98,775. It was disappointing that notwithstanding this income he failed to provide appropriate maintenance for [X]. When challenged by me on this topic he repeated a phrase that we often hear in this Court by those who do not support their children fully and properly “…I was never asked.” A parent’s responsibility to financially support their children is apparent and obvious; it is a clear requirement under the legislation. For a parent to come up with such a comment in light of that obligation is disappointing. It is unlikely in my view that the husband will be willing and possibly able to provide ongoing financial support for [X] in the future, save for token child support of around $20 per week, based on his past lack of financial support and his current view of not being able to work full time in the future. It follows that the current and future burden of providing financial support for [X] will fall on the shoulders of the wife. There was no suggestion that the wife did not fulfil her obligation to maintain [X], historically or currently.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Not relevant to [X]’s education.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Not relevant to [X]’s education.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The evidence suggests that both parents can provide for [X]’s emotional and intellectual needs. However, the wife has been the active parent in this area, for example arranging for and taking [X] to and collecting him from extra tuition on a Saturday morning to improve his grades at school. I expect this style of parental influence and positive action will continue in the future whilst [X] remains in the wife’s primary care.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
Not relevant to [X]’s education.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Based on the evidence I heard and my observations of the parties in the Court, the wife takes her responsibilities of parenting very seriously and generally has always made [X]’s needs and welfare a priority. The same could not be said about the husband who seems to have a very relaxed attitude towards parental responsibility and parenting generally. I suspect he would say that the wife is doing a very good job in looking after [X] both physically, emotionally and psychologically and in those circumstances he was relieved of that responsibility, and content to leave it to her.
(j) any family violence involving the child or a member of the child's family;
There was an allegation by the wife in relation to pushing and shoving and verbal harassment by the husband, which he denied. The family violence in this matter is not a significant issue*, the allegations were few and they could not be corroborated nor established.
* (although any form of violence is inexcusable).
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
See paragraph 46 above .
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In my view if I was to make an Order to allow [X] to attend [E] School it is least likely to lead to litigation in the future, particularly if the wife does as she says, that is she will pay the school fees after an adjustment for the education insurance cover that she has arranged for [X].
(m) any other fact or circumstance that the court thinks is relevant.
I have been mindful of the s.60B objects and principles and s.60CA when weighing up the s.60CC factors. The facts of this case are that [X] is an intellectually lazy student where he is currently being educated and that [E] School offers wider and greater resources. The Independent Children’s Lawyer and the wife want him to attend [E] School in the future and it was clear that [X] would make the transition with minimal discomfort given he enjoys sport, he makes friends easily, he already has some friends who attend that school and he is prepared to attend the school. On balance, [E] School will provide the opportunity for [X] to improve his study results and also enjoy the sport, particularly swimming, that it offers.
Property dispute
The pool
| ASSETS NOT IN DISPUTE | |
| Asset | Agreed Value (rounded to nearest dollar) |
| a) Property B (unencumbered) | $535,000 |
| b) Cars and motor vehicles, etc (to be retained by the husband) | $75,175 |
| c) Cars sold by the husband post separation (to be retained by the husband) | $19,400 |
| d) Wife’s superannuation | $39,852 currently, ($28,515 (c) at separation) |
| e) Husband’s superannuation | NIL |
| f) Household chattels | To be divided in specie |
| ASSETS IN DISPUTE | |
| g) Wife’s savings at separation | * $158,000 (C) |
| h) Wife’s undisclosed monies in safe deposit box | $71,050 |
| i) Hose fitting machine | N/K |
| j) Portable office | $500 to $2,000 |
* The wife’s [omitted] motor vehicle was excluded from the asset pool to avoid ‘double counting’ as it appears that most of the funds to purchase it came from her savings at separation.
Settled pool
During the final address of the wife’s Counsel, I raised the issue of the wife’s savings at separation of around $158,000.
I detailed what I believed to be reasonable add backs when looking at paragraph 76 of the wife’s affidavit sworn 26 June, 2012 as follows:
$3,000 for alleged psychologist and healing
$2,000 allegedly for gardening
$14,000 allegedly for legal fees
$6,000 allegedly for China trip
$2,000 allegedly for father’s grave
$15,000allegedly for repayment of an earlier gift of monies
$48,600for the purchase of the new Volkswagen motor vehicle
$15,000for 50% costs of a U.S. and Canadian trip
$105,600
I had a discussion with the wife’s Counsel on this topic and the husband’s Counsel dealt with this topic (inter alia) in his final address.
There was also a prior discussion about the hose fitting machine and portable office and it was common ground that given the parties could not agree on their value that they will be sold and the net proceeds divided between the parties.
Therefore the final settled pool is:
| Asset | Value (rounded to nearest dollar) |
| a) Property B (unencumbered) | $535,000 |
| b) Cars and motor vehicles, etc (to be retained by the husband) | $75,175 |
| c) Cars sold by the husband (to be retained by the husband) | $19,400 |
| d) Wife’s superannuation | $39,852 |
| e) Husband’s superannuation | NIL |
| f) Household chattels | To be divided in specie |
| g) Add backs from the wife’s savings at separation | $105,600 |
| h) Wife’s undisclosed monies in safe deposit box | $71,050 |
| i) Hose fitting machine | To be sold |
| j) Portable office | To be sold |
SUBTOTAL: | $846,077 |
Approach to property proceedings
There is now a well established four step process that I must follow when determining property matters pursuant to s.79 of the Act. Firstly the Court must identify and have a value attached to all of the property of the parties whether they are assets, financial resources or liabilities that attach to the property. The value attached to that property was at the date of hearing, which is the usual approach. The next step, the second step, is where I have to consider the contributions made by each of the parties pursuant to ss.79(4)(a),(b) and (c) of the Act. I have to then assess all of those contributions and give them particular weight in light of the history of the case. The third step is where I have to consider s.75(2) of the Act and all of the relevant financial resources, means and needs and other matters relating to the parties therein.[1]
[1] See Pastrikos & Pastrikos (1980) FLC 90-897 and Lee Steere & Lee Steere (1985) FLC 91-626.
The fourth step for consideration for the Court and the last step, is the requirement of s.79(2) of the Act which states that the Court shall not make an Order altering property interests unless it is satisfied that, in all the circumstances, it is just and equitable to do so. The Full Court of the Family Court of Australia in Russell & Russell (1999) FLC 98-877 said at page 86-439:
“Furthermore, it must be remembered in this regard that under s.79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties' assets. Indeed we take the opportunity to emphasise that in what his Honour has termed "the fourth stage", that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.”
Contributions
Section 79(4)(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them
On cohabitation
The husband’s evidence is that at the time of marriage he owned two real estate properties in Western Australia at [locations omitted] and both subject to mortgages. He owned a small collection of [omitted vehicles] and related equipment as well as having a 4WD Holden motor vehicle subject to finance. Around this period the husband had a breakdown and was subsequently in and out of hospital. His evidence was that his brother took over his financial affairs (who apparently also used some of the husband’s monies for his own needs) and over time the realty was sold, debts were paid and the Holden 4WD motor vehicle was surrendered to the finance company. He also said the capital supported them in 1997 and 1998. The husband was left with few assets which appeared to be made up of cash of $9,800 (approximately), his collection of speedway and other motor vehicles and related equipment.
It was the wife’s evidence that when she came to Australia in or about January of 1997 she brought with her personal belongings and $40,000 of savings. She said she was debt free. The husband had no recollection of $40,000 or any monies like this sum. He strongly disputed her claim. The wife could not corroborate this with any documentation or any other evidence to support her allegation.
It is my view, after hearing from both parties and reading their material, that effectively both of them had little equity in their assets or in the wife’s case, few assets when they first started living together in January, 1997. Whilst the wife alleges she made a far greater initial financial contribution I have real doubts about the veracity of her evidence. In my view both parties made a similar contribution on cohabitation, and if the husband’s was initially greater, it was soon dissipated.
Financial contributions other than initial contributions
In his affidavit sworn 26 June, 2012 the husband detailed his work history from page 9 as follows:
“ 56. In 1999 I was employed by [omitted]. This employment was in Perth and was five days per week. It was an office position.
57. Later in 1999 I was employed by [omitted]. This was based in [omitted], Western Australia. I flew in to work for 14 days and I had seven days off at the Perth home.
58. In 1999 I was employed by [omitted]. This was a three month project wherein I worked five days on site and two days at home. At that time the family lived in [Melbourne suburb omitted].
59. Later in 1999 I was employed as a [omitted] in [P]. This was a two month position wherein the family lived together in [P].
60. In 1999 to 2000 I worked at [omitted] in, Victoria. This position required four days on site and three days in Melbourne of which one of them was at work in the office and the other two were my days off.
61. From 2000 until 2002 I worked as [omitted]. This was a position whereby I was based in Melbourne working five days per week in the office. I was home each evening and on weekends.
62. From 2002 to 2003 I was employed by [omitted]. This was a Melbourne based job wherein I was home every night during the week.
63. In 2003 to 2004 I was employed with [omitted]. This position was based in [Sydney suburb omitted], New South Wales. I had five days during the week away and I was home on weekends.
64. From November 2004 until February 2005 I worked for [omitted] in [P]. It was five days a week on site and weekends at home.
65. In February 2005 to November 2005 I was employed by [omitted] in [omitted], Western Australia. I had 11 days on in [omitted] and three days off wherein I returned to Melbourne.
66. From January 2006 to September 2006 I worked for [omitted] in Singapore. I worked for 14 or 21 days on and three or four days off as leave in Melbourne.
67. From September 2006 to December 2006 I worked in [P] five days on and weekends off.
68. From January 2007 to August 2007 I worked in Kuala Lumpur, Malaysia with 14 days and three days off in Melbourne.
69. From August 2007 until November 2008 I was employed in Singapore with [omitted]. I worked for 14 or 16 days at a time and then had three days off.
70. From December 2008 until June 2009 I worked for [omitted]. It was a Melbourne based position with occasional overnight work.
71. For my employment overseas in the period from January 2006 to June 2009, I was paid as an overseas contractor and I was not subject to Taxation in Australia. My taxation was paid in the Countries in which I worked.
72. In July 2010 I resumed employment as a [omitted]. This was five days per week in Melbourne in an office position. I held this position until end November 2010.
73. From Mid December 2010 until July 2011 I was not in employment and was in receipt of the aged pension.
74. From July 2011 to April 2012 I was employed by [omitted]. This was on a sub contract basis through my company [omitted].”
In the wife’s affidavit allegedly sworn or affirmed on 26 June, 2012 and filed on the same date she sets out his work history at paragraph 26 which generally agrees with that detailed by the husband. The wife also says in paragraph 65 of that affidavit, “…the husband had a very high earning capacity and it was possible to earn about $1,000 per day in Australia and $1,300 per day for an overseas project.” And at paragraph 67 she went on to say:
“The last project the husband worked on during July 2011 to April 2012 he was paid $1,200 per day while working in the office, $1,400 per day while working in the field, plus he was paid an allowance and for accommodation, transport and phone. The husband’s nine month gross income from was $292,217.88, including GST…”
She went on to say in paragraph 68:
“…During our marriage between 1999 and 2009, the husband’s income as a [omitted] was around 2 million dollars.”
In Court, she put the figure through her Counsel at around $3.3 million gross that the husband earned during the period of cohabitation, either directly or through his company. In particular the husband was cross examined about a gross income of $789,398 that he earned over 32 months, an average of $24,668 per month. During this evidence I put to him the following:
“…we’re not entirely sure where that went, but if it went into the company and the company didn’t make a profit, then you’re using these moneys for a loss business?”
“Well…I’m not going to say [omitted] is a loss business, but I think it’s common knowledge throughout the world that [omitted] does not make a lot of money. It covers the expenses and pays for material involved, and using this amount of money that I may have earned over two years, that was money into the company…and it’s quite obvious that this company has a lot of expenses, and to the point of the last – that keeps on getting mentioned, the $290,000, in fact, there was something like $166,000 worth of expenses.”
I subsequently questioned him again about the large cash flow that went through his hands and I said this:
“But it seems to me from just these figures alone that probably you spent somewhere in the region of – this is just a guesstimate – 30 per cent of your income on your factory, your [omitted], your hobby. Is that a fair comment?”
“No. I run a [omitted] business and a [omitted] business to earn that money that goes into these…”
“But you never put a tax return in for your company that operated this, because it never made money?”
“That’s correct.”
“So you must have made a loss?”
“Well, we made a loss, your Honour.”
“Yes. How much?”
“Look, I don’t have the records available to me. You know…we ran a combined [omitted] business and a [omitted] business combined. That was the way that we operated. The moneys that went into that to keep it alive and keep it going are moneys that - apart from what we paid back into the family, in covering all expenses the family had.”
In earlier questioning the husband said it was not a loss making business, it paid for itself and he referred to it being “equilibrium across the spectrum of money.” And I asked him the following after he made that comment:
“And you say it’s a profit-making business?”
“No. It’s not a profit-making business. I said that it’s an equilibrium across moneys in from overseas to money staying in the company.”
It is clear from the evidence that over the period of cohabitation the husband earned a very high income but the real difficulty turns on how this was distributed. On any view, a significant a sum of money went into his company from his employment in [omitted] that was used not only for [omitted] but also to try and generate income through the business of [omitted] and other services and products provided to the [omitted] industry by the husband. The difficulty for the wife is that throughout cohabitation there is no evidence that she objected to the husband spending money on [omitted] or operating the company and business in the way that he did.
In cross examination the wife said:
“I don't think I can stop him. I didn't complain…he's a very strong-willed man. I don't think anyone can stop him and I only…”
“So you accepted you couldn't stop him?”
“Yes.”
“And when did you first accept that? Early in the marriage?”
“Early in the marriage…”
“And nonetheless you stayed married knowing full well he's earning a high income and spending all this money on [omitted]?”
“Yes. I knew - yes.”
This debate about his waste of monies required the wife to establish exactly what monies were wasted in the husband’s pursuit of [omitted] as distinct from monies that were invested in a business that he tried to operate on a commercial basis during cohabitation. The wife was unsuccessful in showing clear evidence of wastage, although I am satisfied that the husband could have devoted more monies to the marriage and less to his own needs of enjoyment of or involvement in [omitted].
In relation to the wife’s employment history, after she came to Australia in January 1997 it was her case that initially she undertook some studies as well as working on a casual basis with a company titled [omitted] from September, 1997 to July, 1998. She said she earned around $200 per week and worked for a further six months or thereabouts following the birth of [X] when her mother visited the parties from China.
Subsequently, the family moved to Melbourne where the wife started her current employment from 1999 working full time until [X] started school when she reduced her hours to around 9.00 am to 3.00 pm from 2004, to be available to him pre and post school hours. She said she increased her workload from 2009.
In further evidence the wife told the Court that she got other benefits from her employment including gifts of fruit and vegetables as well as presents from clients after she “…showed them around Australia…” but she provided no details of this at all.
I am satisfied that the wife’s income and employment benefits were contributed to support, needs and welfare of the family.
Section 79(4)(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them
It is common ground that the husband was often away working interstate or overseas, and that the wife was the person who generally maintained the property and any other assets of the parties. The husband gave evidence that on his return, whether it be two weeks away or three weeks away working, he always undertook maintenance of the property such as mowing the lawns and painting the house. The contribution under this sub-paragraph was on balance greater by the wife over time when one considers the frequent unavailability and absence of the husband.
Section 79(4)(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent
There is no doubt that from the evidence heard in Court and the affidavits filed by the parties that the wife was the homemaker in this marriage. The wife said she undertook 95% of the homemaker role and it was put to the wife in cross examination that “…my client’s case is not that he did anywhere near the amount of domestic work that you did or parenting that you did…” The husband played a very minor role in that area and the burden of caring for the home, caring for [X], caring for the parties generally was undertaken by the wife. In the absence of the husband, the wife made a clear and significant contribution to [X]’s care and welfare by being the parent available to him on a day to day basis.
Section 79(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage
Not directly relevant.
Section 79(4)(e) the matters referred to in subsection 75(2) so far as they are relevant
(a) the age and state of health of each of the parties;
The husband is aged 68 years and complained in examination in chief that he had a bladder problem and he may be diagnosed with diabetes in the future. There was no medical evidence called and therefore little weight can be put on his comments. The wife is aged 43 years and did not claim she had any health problems and in fact it was her case she has worked long and hard for many years. In the circumstances, I assume that she has good enough health to earn income and work full time. She did not introduce any evidence to the contrary.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The wife currently works full time and did not suggest to the Court that she could not continue to do so. Given she is aged 43 and if one was to speculate that she works until she is 70 that would give her a working life of somewhere in the region of a further 27 years. If we applied the same test to the husband, who is aged 68 years, then at best he could work another 2 years notwithstanding his evidence that he did not intend to work but go on an aged pension, save for some small jobs to supplement the pension benefit.
On any view, the wife (who also has [qualifications omitted]) has a greater capacity for employment than the husband and that will provide her with the ability to support herself and her son [X], in the future.
The income, property and financial resources of each of the parties one assumes was put to the Court in full detail save with this caveat, that the wife misled the Court in having undisclosed cash of $71,050 in a safety deposit box in the bank and therefore one can be nervous about her evidence in terms of any other property or financial resources she may or may not have.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
It is common ground that there is one child of the marriage [X] born [in] 1998. He will remain in the primary care of the wife, and she will be the main source of his financial support both now and in the future.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
I am satisfied that both of the parties have the capacity and commitment to support themselves, although the wife’s is greater.
(ii) a child or another person that the party has a duty to maintain;
The parties have a duty to support [X] who is aged 14 years. The evidence however is that this will fall to the wife in a significant way in the future given the husband’s lack of recent support for the child even when he was earning a good income. I accept that the husband will probably earn very little income in the future compared to the wife and the reality is that he will pay little, if any, in the way of child support save and except for a small token sum.
(e) the responsibilities of either party to support any other person;
Not relevant.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
It appears that the husband may qualify for an aged pension given his evidence on this topic. The wife’s Financial Statement filed 26 June, 2012 does not set out that she is receiving, or has applied for, any pension, allowance or benefit.
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
It was the husband’s case that he had no interest in any superannuation fund or scheme. The wife in her Financial Statement filed 26 June, 2012 set out that she had an interest in an [omitted] Superannuation Plan of a total sum of $39,851.72.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
The Court will be mindful of this requirement when making final Orders.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
Not relevant.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant;
Not relevant.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
Not relevant.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
Not relevant.
(l) the need to protect a party who wishes to continue that party's role as a parent;
This is a very important issue. The wife is committed to promoting [X]’s welfare and his best interests and that will be acknowledged in these Orders.
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;
Not relevant.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
The Court will be mindful of this when making final Orders.
(ii) vested bankruptcy property in relation to a bankrupt party;
Not relevant.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
Not relevant.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
As I have said earlier in this judgment the husband is unlikely to provide any effective child support in the future and the financial burden for the care of [X] will clearly fall on the shoulders of the wife.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The justice of this case requires that I take into account that the wife misled the Court. She was hoping by her lies to not disclose that she had over $70,000 in a bank safety deposit box and that on or about separation withdrew cash from a number of bank accounts in the hope of hiding them from the husband, and in turn, the Court. It also requires me to acknowledge that the husband has not used his monies with an eye to the future. It is clear from the evidence he spent significant monies enjoying [omitted] during cohabitation. This was something that he often undertook with little involvement of [X] and apparently none by the wife. Had he been more prudent he could have had a larger pool of assets and resources available to him and the family today.
(p) the terms of any financial agreement that is binding on the parties to the marriage;
Not relevant.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Not relevant.
Just and equitable conclusion
The husband’s Counsel conceded in final submissions that the husband did not make greater contributions to the marriage than the wife. He was right to do so. Although the husband earned a far greater income than the wife it was not all devoted to the family and its support or wholly invested in assets for the family’s future benefit.
When one views the whole history of cohabitation and the numerous forms of contributions made by the parties pursuant to s.79(4) of the Act, it is my view that over time the contributions of the parties were similar, save for one feature. The care, control, nurturing and parenting of [X] was primarily undertaken by the wife in a very significant way, often in the absence of the husband, over a lengthy period.
The husband’s case about s.75(2) factors was that he will not be able to work, save for a very small income and that he will be an aged pensioner in the future, but he does have experience and skills as an [omitted] that could generate some income in the short term.
The continued unemployment of the husband has financial ramifications for both parties. It follows that he cannot and will not provide any realistic contribution to [X]’s financial needs, both currently and the future.
Given the history of this matter and that there is an Order for [X] to live with his mother, it is clear that the financial burden of providing [X] with appropriate housing will be her responsibility , along with his continued financial support on a daily basis.
In my view, given the wife’s contribution to [X] in the past and her responsibility for him in the future, it is just and equitable that there be a small adjustment in her favour and that she should retain 55% of the divisible pool and the husband the balance.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Curtain FM
Date: 28 September 2012
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