KORMAN & QUINN
[2011] FMCAfam 237
•23 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KORMAN & QUINN | [2011] FMCAfam 237 |
| FAMILY LAW – Parenting – family violence alleged – history of poor communication – likely that communication will improve – children live with wife – children spend substantial and significant time with the husband – counselling – husband to engage with a counsellor – counsellor to advise parties about increase in time. FAMILY LAW – Property settlement – large pool – whether a global or asset-by-asset approach should be adopted – overseas property – valuation – Swiss property subject to a dwelling right – valuation of property disputed – whether property has value – contributions – significant initial contribution of wife – parties largely supported by income of wife. |
| Family Law Act 1975, ss.4, 79, 60CA, 60CC, 60B, 61DA, 65DAA, 79(2), 79(4) Family Violence Act2004 (Tas) Firearms Act 1996 (Tas) |
| Claringbold & James [2007] FamCA 1032 Clives & Clives (2008) FLC 93-385 |
Applicant: | MR KORMAN |
| Respondent: | MS QUINN |
| File Number: | HBC 212 of 2009 |
| Judgment of: | Baker FM |
| Hearing dates: | 28 and 29 July 2010 and 25, 27 and 28 January 2011 |
| Date of Last Submission: | 28 January 2011 |
| Delivered at: | Hobart |
| Delivered on: | 23 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trezise |
| Solicitors for the Applicant: | Dobson Mitchell & Allport |
| Counsel for the Respondent: | Mr Dixon of Senior Counsel |
| Solicitors for the Respondent: | PWB Lawyers |
ORDERS
PROPERTY ORDERS
The husband forthwith relinquish any right, title and interest he may have in the property at Property C, Canada more particularly described as Lot [omitted] to the wife.
The wife forthwith relinquish any right, title and interest she may have in the property situate at Property G, Switzerland to the husband, and the wife sign such documents as are necessary to discharge the encumbrance on the property.
Within 45 days from the date of this order the husband pay to the wife the sum of $159,739.00.
That contemporaneously with the payment referred to in order (3) the wife transfer to the husband all her right, title and interest in the property situate at Property P in Tasmania, comprised in Certificate of Title volume [omitted].
In the event that that the husband is not able to obtain finance in order to pay the wife the sum referred to in order 3:
(i)The property situate at Property P in Tasmania, comprised in Certificate of Title volume [omitted] be listed for sale;
(ii)The listing price shall be agreed between the husband and wife and failing agreement as determined by a valuer nominated by the President of the Real Estate Institute of Tasmania.
(iii)The property shall be listed for sale by a private treaty with an agent to be agreed and failing agreement as determined by an agent nominated by the President of the Real Estate Institute of Tasmania.
(iv)That the husband and wife both do all acts and things and sign all necessary documents to effect the sale of the property.
The proceeds of sale of the property be distributed as follows:
(i)To pay all Real Estate Agent’s costs, commissions and expenses of the sale of the property;
(ii)To pay any council rates outstanding in respect of the property;
(iii) To pay the solicitors costs in relation to the property;
(iv)The balance be divided between the husband and wife so as to ensure that the wife receives assets to a value equal to 78% of the asset pool and the husband receives assets equal to a value of 22% of the asset pool.
(v)Pending completion of the sale of the property the husband will be liable for and indemnify the wife against all payments and liabilities in respect of the property, including but not limited to all rates, taxes and outgoings of whatsoever nature and kind, and indemnify and keep the wife indemnified in respect thereof.
The wife relinquish in favour of the husband any claim or interest she may have in:
(a)The tractor;
(b)The husband’s firearm collection;
(c)[omitted] motor vehicle registration number [omitted];
(d)Chattels at Property P as set out in Annexure “A”;
(e)Slasher;
(f)Chattels at Property G, Switzerland;
(g)Backhoe attachment;
(h)All bank accounts in his name:
and the wife forthwith take all steps necessary to transfer the said property and accounts to the husband.
The husband relinquish in favour of the wife any claim or interest in:
(a)[omitted] motor vehicle registration number [omitted];
(b)The chattels at Property P set out in Annexure “A”;
(c)The caravan;
(d)The wife’s interest in the [F] Superfund, the [F] Family Trust and the [P] Family Trust;
(e)Wife’s Bankwest Complete account;
(f)Wife’s Bankwest Gold cash account;
(g)Wife’s Mastercard Gold account;
(h)Wife’s Mastercard account
and the husband forthwith take all steps necessary to transfer the said property and accounts to the wife.
The wife be solely responsible for the Mastercard debts in the wife’s name, and indemnify and keep the husband indemnified in relation to the same.
The parties sell the two shipping containers at Property P.
The wife’s application for payment of the fees of Dr S, the wife’s costs of an incidental to the husband’s application filed 23 April 2009, the wife’s Application in a Case filed 15 April 2010 and the appearance on 26 October 2010 be reserved.
CHILDREN’S ORDERS
That the orders made in the Family Court of Australia on 17 March 2009 be discharged.
That the husband and wife have equal shared parental responsibility for the children [X], born [in] 1998, [Y], born [in] 2001, [Z], born [in] 2004 (“the children”).
That the children live with the wife.
Within 14 days of the date of these orders the husband do all acts and things to engage Dr W for the purpose of the husband developing child centred parenting strategies and to assist the parents to develop a co-operative parenting relationship.
Within 14 days of the date of these orders the wife do all acts and things to engage Dr W for the purpose assisting the parents to develop a co-operative parenting relationship.
The husband and wife ensure all three children attend counselling and/or therapy as recommended by Dr W.
Leave be granted to Dr W to read the Court transcript for 28 June 2010, the Family Report dated 7 April 2010 and the report of Dr S dated
17 December 2010.
The husband and wife are to ensure:
(a)The children attend all appointments at the times, dates and places nominated by Dr W; and:
(b)Both parents participate in counselling sessions with the children as considered appropriate and at the discretion of Dr W.
The reasonable remuneration of the expenses of Dr W be paid equally by the parents.
The husband take all steps necessary to ensure the children attend their extra-curricular activities and performances in the time the children are in the husband’s care and the wife consult with the husband in respect of any new extra-curricular events to take place during the children’s time with him.
Neither the husband nor the wife remove the children from the Commonwealth of Australia without the written consent of the other party, or an order of the Court.
In the event the husband’s firearms are at his home during the time the children are in his care, the husband to take all steps necessary to ensure the firearms and any ammunition in his possession are in a secure locked receptacle pursuant to the requirements of the Firearms Act1996 (Tas).
That the husband be restrained from taking the children shooting when they are in his care.
Neither parent criticise, denigrate, demean or ridicule the other parent, either to the children, or to any member of the person’s family or household in the presence of the children, or allow any other person to do so.
The parents not discuss with or in the presence of the children any matter which is the subject of or related to the family law proceedings whether past, present or in the future.
The husband do all acts and things necessary to assist the wife in seeking an assessment of [Y]’s developmental level and special needs from a professional recommended by the teaching staff at [Y]’s school.
The parties utilise a communications book at changeover to record relevant issues regarding the children’s welfare.
At times when school is closed the changeover for the purpose of the husband’s time with the children is to occur at 10.00am at McDonald’s in [omitted].
Pursuant to s.11F(1) of the Family Law Act1975, the parties attend a Child Dispute Resolution Conference with a Family Consultant at the Hobart Registry of the Family Court of Australia on a date to be fixed not before 9 July 2011 to attempt to resolve their disputes with each other or if recommended by Dr W pursuant to s.11F of the Family Law Act1975 the parties attend a Child Inclusive Assessment on a date to be fixed.
This matter be adjourned to 25 July 2011 at 10:00 a.m. in the duty list.
UNTIL FURTHER ORDER THE COURT ORDERS THAT:
The children spend time and communicate with the husband as follows:
(a)For a period of four weeks;
(i)Each week on Saturday from 9.00am until 5.00pm commencing 26 March 2011;
(b)At the expiration of the time in (a) for a period of four weeks;
(i)In week one from Friday after school until Saturday at 5.00pm;
(ii)In week two from Thursday after school until Friday at school.
(c)At the expiration of the time in (b) for a period of four weeks;
(i)In week one from Friday after school until Sunday at 5.00pm;
(ii)In week two from Thursday after school until Friday at school.
(d)At the expiration of the time in (c ) for a period of four weeks and until further order:
(i)In week one after school Thursday until Monday morning at school;
(ii)In week two after school Thursday until Friday morning at school.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Korman & Quinn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 212 of 2009
| MR KORMAN |
Applicant
And
| MS QUINN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings between the parties for parenting and property orders. The husband and the wife commenced cohabitation in 1998, and married [in] 2003. They separated on 23 February 2009, and divorced on 6 August 2010.
The parties have three children (“the children”):
·[X], born [in] 1998 (“[X]”);
·[Y], born [in] 2001 (“[Y]”); and,
·[Z], born [in] 2004 (“[Z]”).
The children live with the wife. Currently, they do not spend time with the husband.
Background
The husband was born in Switzerland [in] 1960. He is 49 years old, and is currently self-employed. He [occupation omitted].
The wife was born in Western Australia [in] 1971. She is 38 years old. She has investments that provide her with an income. She is not employed outside the home.
The husband and wife commenced their relationship in Canada in 1997. At that time, the wife was travelling on a round-the-world trip. The husband was employed on a temporary working visa as a [omitted] in Canada. He had recently separated from his first wife.
Over the next year or so, the parties lived in Europe, Canada and Jamaica. During that time, the wife fell pregnant with [X], and the parties travelled to Australia for his birth. In 1999, they returned to Canada and purchased a property in Property C. In 2005 they purchased a property in Property G, Switzerland.
The parties lived in the Property C property from 1999 until 2006. During that time, [Y] and [Z] were born. The husband worked a number of temporary or odd jobs in Canada. He was also part-owner and operator of an [business] called “[N]”.
In 2006 the parties moved from Canada to Australia. They spent a brief period in Victoria, before moving to Tasmania. They purchased a property at Property P and placed the Property C property on the market.
The husband continues to live in the Property P property. The wife lives in rental accommodation in Hobart.
History of the parenting proceedings
An Application for Interim Parenting Consent Orders was filed in the Family Court of Australia on 16 March 2009 and orders were made on 17 March 2009. The effect of those orders was that each parent had equal shared parental responsibility, the children lived with the husband on 5 nights each fortnight and lived with the wife at all other times. The orders were to be reviewed after 3 months.
On 23 April 2009 the husband filed an Initiating Application in this court seeking property and spouse maintenance orders. The wife filed a Response on 29 May 2009 seeking property and parenting orders. She sought an order that the children live primarily with her and spend such time with the husband as agreed. On 11 June 2009, the husband’s application for a partial property settlement or spouse maintenance was dismissed following an interim hearing.
On 15 July 2009 the wife filed an Amended Response. She sought orders that the interim consent orders made on 17 March 2009 be discharged; that she have sole parental responsibility for the children; that they live with her; that the husband spend time with the children for 3 nights each fortnight, one half of the June and September school holidays and for 1 week block periods during the Christmas school holidays.
The hearing of the parenting matter commenced on 28 July 2010. On that day, the husband made a number of troubling statements during cross-examination. As a result of those comments, the orders made on 17 March 2009 were varied so that the husband’s time with the children was suspended until further order. Injunctive orders were made against the husband and it was ordered that Dr S be appointed as Court Expert to prepare a report about the psychological and psychiatric profile of each party.
The hearing resumed on 25 January 2011. At that time, the property matter was also heard.
Evidence
The husband relied on the following:
·Reply filed 24 May 2010;
·Financial statement of husband filed 17 June 2010;
·Affidavit of husband filed 4 June 2009;
·Affidavit of husband filed 23 April 2010;
·Affidavit of husband filed 17 June 2010;
·Outline of Case filed 24 January 2011.
The husband was cross-examined.
The wife relied on the following:
·Amended Response filed 14 January 2011;
·Affidavit of wife filed 29 May 2009;
·Family Report issued 7 April 2010;
·Affidavit of wife filed 15 July 2010;
·Affidavit of Dr W filed 15 July 2010;
·Affidavit of Mr M filed 7 January 2011;
·Affidavit of Mr F filed 7 January 2011;
·Affidavit of wife filed 11 January 2011;
·Financial statement of wife filed 14 January 2011;
·Outline of Case filed 18 January 2011.
The wife, Dr W and Mr F were cross-examined.
The Family Consultant, Ms S, prepared a Family Report. Ms S was cross-examined by Counsel for both parties.
Dr S was appointed as Court Expert at the end of the evidence in July 2010. He prepared an Expert Report. Both parties relied on the Report. Dr S was not required for cross-examination.
Parenting Issues
The wife sought an order for sole parental responsibility and the husband sought an order for equal shared parental responsibility for the children.
In her Amended Response filed 14 January 2011 the wife proposed that the children spend time with the husband each alternate weekend on Saturday from 9:00 a.m. until 6:00 p.m. during daylight savings, and until 5:00 p.m. at the end of daylight savings. This time is conditional upon the husband attending counselling for the purpose of developing child-centred parenting strategies and to assist the parents to develop a co-operative parenting relationship. She proposed that there be a review of this time at the expiration of four months.
The husband proposed that the children live with him during school term periods; in week one, from Thursday after school until Monday at school, or at 5:00 p.m. on those days if they are non-school days; in week two, from Thursday after school or at 5:00 p.m., if a non-school day, until the following day at school or at 10:00 a.m. if a non-school day. He proposed time for one half of the school holidays with alternate fortnightly block periods during the Christmas school holiday period. He also sought time on special days.
After the evidence was heard, Counsel for the husband informed the Court that the husband was prepared to attend counselling. The husband’s preference was for a counsellor other than Dr W to be appointed. His Counsel submitted that Mr P, with whom the husband had already consulted, be appointed. He indicated that if Court was of the view that Dr W was the appropriate counsellor, the husband was prepared to consult with him.
The husband amended his proposal for time with the children to time on each Saturday for a period of one month, increasing to overnight and after a second month increasing to a second night. He proposed an automatic progression of his time with the children, concluding with time in week one; from Thursday after school until Monday and; in week two from Thursday after school until the following day at school.
The husband agreed to the orders as set in paragraphs 19, 20, 21, 22, 23, 25, 26, 27, 28 and 29 of the orders referred to in these reasons.
Evidence of the Family Consultant, Ms S
Ms S prepared her report on 7 April 2010. At the time, the wife was proposing that the children live with her during the school week and spend time with the husband each alternate weekend and during holidays. The wife proposed that the parents be flexible in relation to the orders, for example to permit the children to attend extra-curricular activities.
The husband proposed that the children live with him from Friday after school until Monday at school in week one; from Wednesday after school until Saturday 10.00am in week two; and during one half of school holidays and on special days.
When speaking to Ms S, the parties separately described their relationship as volatile. The husband spoke of ongoing arguments during their relationship. He said those arguments were about financial issues, and the wife being too hard on the children. The husband told Ms S that he did not want to be belittled by the wife and that he did not want to talk with her, unless she was able to communicate politely and respectfully. The wife told Ms S that the husband had reacted negatively to being told she was pregnant with their first child, and that he had been physically violent towards her.
Ms S interviewed the children. [X] was mostly non-committal and unforthcoming. He said he liked the arrangements at that time because there is “no more arguing” between his parents. [Y] disclosed that his father had used “bad words” about his mother. He said his parents were “cross with each other”. When asked if he wanted to say anything to his parents, [Y] said “don’t argue and don’t swear and don’t fight.” [Z] declined to be seen alone.
Ms S stated that if the Court finds that the wife has been the victim of ongoing domestic violence and intimidation, the extent of the husband’s involvement with the children should reflect that finding. She recommended that the Court determine the veracity of the wife’s allegations, and that the Court consider the nature of the parents’ relationship in making a determination about the children’s time with the husband. She believed that an equal time parenting arrangement appeared to be unrealistic, given the communication problems and inequities that have existed between the parents. She believed that a substantial and significant time arrangement might not provide as much stability for the children during the school week as they required.
Ms S recommended that the husband attended counselling with Dr W in relation to [X]’s emotional well-being, and the communication problems between the parents.
During cross-examination, Ms S said that both parties are pleasant and capable parents. The wife talked about a few positive qualities that the husband has as a parent. The husband conceded that the wife was a good mother. However, he criticised her about some of the ways she has used her financial means, such as making the children travel business class and giving them too many things. He also told her that the wife is very hard on the children.
Ms S observed the husband with the children and stated that they had a good and loving relationship.
In respect of the time during the school term, Ms S was of the view that time from Thursday to Monday one week, and Thursday night in the alternate week, works well for primary school children. She indicated in her report that stability during school weeks generally comes from having the predictability of set days each week. Her concern was whether the family would be exposed to further conflict. Ms S was also of the view that changeover should occur at the schools.
In respect of the school holidays, Ms S did not see any problem with the children spending a block period of a week with the husband, as the wife had spoken about wonderful things that the children could do with him.
Ms S could not see any problems with a week on, week off arrangement. She indicated that she is a very strong proponent of a fortnight-about arrangement, which allows both parents to have the opportunity to go away on a longer vacation. She said that, given the children’s ages, she would have no concerns about that. She said that [Z] is attached, warm and loving to both parents, who treat her appropriately.
During cross-examination on 29 July 2010, the husband said that the wife has ‘zip’ good features since she left, and he has never come across anyone so violently evil and destructive, turning the children against their father in such a way. Ms S was asked whether this statement would help communication between the husband and the wife. She answered that it was a highly disturbing comment that would require an assessment of risk to the wife and the husband’s time with the children.
As a result of this evidence I adjourned the hearing and ordered that
Dr S be appointed as Court Expert to assess the psychiatric health of the parties.
The husband did not spend any time with the children between July 2010 and the resumed hearing date. The husband was given the option of supervised time with the children but declined to take up this option. As a result, Ms S was recalled on 27 January 2011 to give her opinion about how the children should be reintroduced to the husband.
Ms S’s evidence on 27 January 2011
It was agreed by Counsel for both parties that Ms S be provided with a copy of Dr S’s report and a letter from Dr W dated 27 January 2011.
Dr W had written in the letter that he had not had any direct therapeutic involvement with the children since June 2010. He was advised by the wife that, around this time, the husband read the contents of his report to the children, as well as other court material. Dr W was advised by the wife that the children, and in particular [X], were angry with him for providing the information contained in the report, and that they were unwilling to attend for further counselling.
Dr W wrote that, during the previous week, the wife attended his consulting rooms. He saw her briefly in his waiting room. The children were with her. He observed that the children interacted positively with him, and that they showed an improved demeanour. This gave him confidence about the children attending counselling with him in the future.
Dr W was of the view that an interview with the children for the purpose of a report to the Court would greatly jeopardise any possibility of the children re-engaging with him in a therapeutic capacity.
Counsel for the wife referred Ms S to the wife’s evidence that she had noticed a significant improvement in the children’s behaviour and mood, since they were no longer subjected to the conflict between the parties, and had not been spending time with the husband. The wife deposed that [X] was no longer depressed, [Y] was no longer defiant and [Z] was happy and easygoing.
Ms S was of the view that such improvements would be due to the children’s lack of exposure to conflict. The change in behaviour was a correlation that she would have expected. It was a result of the children not being put under pressure or being subjected to conflict. She said that the children love their father and he has many positive attributes. It is the conflict between the parents which needs to be kept away from the children.
In respect of the wife’s amended proposal that the children to spend time with the husband on one day each alternate week, Ms S was of the view that shorter, more frequent periods of time, such as time each weekend, would be better for the children.
When cross-examined by Counsel for the husband, Ms S stated that her views about the time the children spend with the husband had not changed, because of the nature of the father’s relationship with the children.
Ms S was of the view that a requirement for the husband to engage with a counsellor, for the purpose of developing child parenting strategies, would be of assistance. She was of the opinion that it would be unfortunate for the children if another counsellor were to be appointed in place of Dr W. She believes that Dr W acts with neutrality and has extensive experience of family law matters. She has a high opinion of Dr W’s work and his professionalism.
Even if the wife had been indirectly involved with Dr W, Ms S said that he is the appropriate therapist for the parents and the children to visit. She has confidence that Dr W could overcome any difficulties caused by the husband’s discomfort with him, and that if the counselling is not going well, Dr W would pull back.
Ms S stated that she is in favour of an automatic progression of the time that the children spend with the husband, and that if problems arise Dr W can advise and assist in the progression. She stated that the finalisation of the financial issues should assist in the lessening of the conflict.
I found the written and oral evidence of Ms S, who is an experienced family consultant, very helpful. During cross-examination, her views and recommendations did not alter. I place weight upon those views and recommendations.
Dr W’s evidence
Dr W prepared a report dated 28 June 2010. The wife and the three children were referred to him by their general medical practitioner in February 2010. They attended on nine occasions. The wife informed
Dr W that she had difficulty communicating with the husband on issues pertaining to the children. Dr W requested the husband be involved in the intervention with the family, but he refused to participate.
The children were not forthcoming with Dr W about their relationship with the husband. However, it was evident to Dr W that the children were holding onto significant emotion and distress, borne of their then circumstance; in particular, the hostility shown by the husband towards the wife and the apparent pressure placed upon them not to disclose information about the time they spent with him.
In particular, [X] had been exhibiting significant stress. He regularly presented as highly distressed and did not appear to be coping. Both [X] and [Y] disclosed to Dr W that the husband said nasty things about the wife at times. They also disclosed that they have to be careful about what they say, for fear of heightening the husband’s anger.
Dr W’s focus in many of the sessions was to assist the wife with parenting and supporting her children through that time.
Dr W concluded that [X], [Y] and [Z] were not coping, and it appeared that this was in part due to the negative attitude of the husband and the restrictions he placed upon their ability to disclose any concerns they may have had.
During cross-examination, Dr W stated that, if the husband was able to see his involvement in a more positive way, the children may feel able to be more open in their discussions with Dr W, which would allow him to better assist them. It would also provide him a better picture of the family.
The husband alleged that Dr W’s report was influenced by the wife because she paid for his services. Dr W was asked by Counsel for the husband whether he would have problems if he ascertained that the husband’s story was directly opposed to the wife’s account. Dr W answered that he thought it would probably be more usual than unusual for separated parents to have different opinions about what was happening with the family. He thought this could only help him, not cause problems for him.
When asked whether this is a matter in which one parent jumps to a negative conclusion about the other parent, Dr W answered that he did not believe it was. He said that he approached the information he was given by the wife with caution to begin with, but that as he received more information it appeared to him to be a situation of high conflict, and the husband was demonstrating an inability to communicate with the wife. He hoped that, with time, the emotions may subside, so that a more appropriate relationship could develop.
Evidence of Dr S
On 29 July 2010 the Court ordered that Dr S be appointed as Court Expert to prepare a report about the psychological and psychiatric profile of each of the parents. Dr S wrote in his report that the husband acknowledged that there had been bitterness in the relationship since the wife’s departure. He told Dr S that the wife had alleged that he had perpetrated mental and physical violence throughout the period they were together. He conceded the following:
·That he kicked her in the behind after she pushed him into a table.
·That there had been an occasion approximately 9 years ago when he had pushed her over.
He denied any other violence towards the wife. He maintained that he had been struck by the wife. He said that there was no forensic record, that there had been no police involvement and that there was no medical evidence of injury. In relation to mental violence, he said the allegations were that he would shine light in her eyes at night and that he had frequently burped or had been flatulent in her presence.
The husband told Dr S that he had been referred to Mr P, a clinical psychologist, following the separation because he had been distressed and had difficulty sleeping. He had attended six or seven individual sessions with Mr P. The husband informed Dr S that he is now in a new relationship with a woman, who is a [occupation omitted] and has 2 teenage daughters.
The wife told Dr S that she had been referred to a psychotherapist, whom she sees on a weekly basis.
The wife complained to Dr S that she had been subjected to violence and intimidation by the husband. She outlined several incidents which appeared to have occurred predominantly in the early stages of the relationship. She also complained of verbal putdowns, belittling and intimidating behaviour.
Dr S asked the wife whether she had been violent towards the husband. She answered that the only occasion had been in around January 2009, when she had thrown juice at him because he had kicked her.
The wife and children left the Property P property in February 2009. Communication appears to have broken down from about mid 2009, when the wife sought and obtained a family violence order. Dr S asked the wife why she had taken this step. She complained that the husband had been trying to find out where she was living. She also said that he had experienced a set-back in the Court in relation to spouse maintenance issues, and that she was apprehensive about how he might react. It was the wife’s view that the protracted dispute in the Court was financially driven.
Dr S noted that the husband had acknowledged that the wife had been a good mother. However, he perceived that the mother’s actions were aimed at destroying his life and he conceded that he had said inappropriate things to the children. He complained that the wife was prone to belittle him and speak to him with a lack of respect.
Dr S indicated that the accuracy his conclusions depends on the reliability of the history provided by the parties. He concluded that, based on the histories he obtained, the observations he made and the documentation he perused, there was no indication that either of the parents suffer from a psychiatric disorder or have an abnormal personality. Both appeared to have experienced some adjustment issues associated with the breakup of their relationship and subsequent events.
Regarding the allegations of family violence, Dr S stated that the main predictor of future risk is past behaviour. He had no corroborated information that would suggest any risk factors exist.
Dr S was unable to identify any significant psychiatric or personality disorder in either of the parents. In relation to the husband, he was not able to identify any independently verified risk.
Assessment of domestic violence allegations
A family violence order was made against the husband in June 2009 pursuant to the Family Violence Act 2004 (Tas). The order was made ex-parte. There was no hearing, and the evidence was not tested.
“Family violence” is defined in s.4 of the Family Law Act 1975 as follows:
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.[1]
[1] Family Law Act 1975 (Cth), s.4
In her affidavits the wife described an incident that occurred when she first told the husband she was pregnant with [X]. She deposed that the husband punched her in the face, held his hand around her throat and shook her. Another incident occurred when she was pregnant with [X]. The husband placed his hands around her throat, shook her and banged her head against a tree.
Another incident occurred in 1999 on Mother’s Day. The husband grabbed her arm and twisted it. He punched her in the face and followed her. He picked up a hoe and started smashing things. He chased her and held her down and slammed her head against the ground repeatedly.
On another occasion, when the parties were living in Canada, they had an argument in relation to [Y]’s behaviour. The husband walked behind the wife and kicked her in the leg.
A few days before the wife left the Property P property, the husband blocked the driveway with his vehicle so she could not drive out. The wife said she felt intimidated by the husband.
In her affidavit filed 15 July 2010 the wife repeated the earlier allegations. She also deposed that the husband had thrown a pair of scissors at her and pushed her out of his way. During the last twelve months of the relationship, his behaviour became increasingly difficult and he became intimidating. He would belch in her face as he walked past her. He would shine a bright light in her eyes when she was sleeping and slam doors to wake her up. In January 2009 he kicked her in the buttocks and spat at her.
On 8 July 2010 the husband slammed the wife’s arm twice in his vehicle door when she gave [Z] a kiss a changeover. She received a mark and bruise on her arm. The husband called her a ‘dirty fucking whore’.
In his affidavit filed 17 June 2010, the husband deposed that he has never threatened, coerced, intimidated or abused the wife. He deposed that she is not frightened by him and that her allegations of domestic abuse and intimidation are cynical and self-serving.
The husband denied that he has ever punched or hit the wife. He denied that he has ever taken her by the throat and denied that he has given her reasonable cause to fear for her safety. He admitted that he pushed her on one occasion, and that he kicked her bottom on the day before separation. He denied that he blocked the driveway at the home at Property P to prevent the wife from leaving.
The husband denied that in February 1998 he punched the wife in face and put his hands around her throat and started squeezing and choking her. He said that the parties argued about staying with his friends. The wife wanted to stay in a hotel and he did not. They went outside and continued to argue, yell and shout. There was no physical contact between them.
In respect of the incident in 1999, the husband said that he and the wife had an argument in the morning before going to lunch. He denied that he made a threat with the hoe. He denied that he knocked the wife to the ground and grabbed her hair. He did not hit her and there was no police attendance.
He denied that on another occasion he grabbed the wife around the throat and shook her and banged her head into a tree. He denied that he has thrown a pair scissors at the wife and pushed her out of his way.
He denied that during the 12 months prior to separation he would belch in the wife’s face as he walked past or shine a light at when she was sleeping and slam doors to wake her up.
As to the allegation of kicking the wife in the buttocks and spitting at her in January 2009, the husband said that was partly correct. They had an argument about [Y]. He walked past the wife in the kitchen, she pushed him, he kicked her on the buttocks and she threw juice in his face.
The husband admitted that he informed the wife he had a tape recorder and would tape her, as he wanted proof of what she was saying to him.
The husband admitted that on 8 July 2010 there was an incident at the [H] school parking lot. He described the incident in detail. He picked [Z] up from school and went to the [H] School to collect the boys. When he arrived, [Y] was with the wife. He parked the car. The wife walked over to the car and opened the car door next to where [Z] was sitting. The husband walked around to that door and asked the wife to leave. He tried to close the door and she spun around and tried to hit him. He pulled his head back and she hit him on the collar bone and walked away. He denied that he struck her with the car door or slammed her arm twice in the car door. He denied that he called her a “dirty fucking whore”. During cross-examination, the husband’s evidence about this incident was not shaken.
The wife admitted that sent the following text message to the husband on 7 April 2009:
…I don’t want you to speak to me about a future or tell me how you feel about me as we both know that all of that talk is fake and it makes me feel verbally raped and physically sick. I do not love you, do find you attractive in any shape or form and hell would have to freeze over and change to pink before I would ever live with you, sleep with you or touch you ever again. I don’t like you. I have moved in my life and will never chose a person like you to be part of my life ever again, Get it, sink it into your head. I won’t discuss it ever again. From your EXWIFE.
During cross-examination, the wife agreed that she was keen to show the husband her intense dislike for him in this text message.
The wife said that she thought that when she communicated with the husband, he misconstrued things she said. She could have listened to him more. She agreed that she used strong language in some of her text messages, including the text message of 7 April 2009. She agreed that the husband made complaints about her attitude towards him, but she said they were baseless. She denied that she has been belittling or demeaning. She denied that she was abusive towards the husband on changeover.
The wife was asked about a text message she sent to the husband on 4 June 2009. That message was addressed to ‘non-entity’. When asked whether she believed calling the husband ‘non-entity’ was appropriate, she answered that only she could see that on her mobile telephone. The wife explained that the message was sent as a result of her frustration with the husband’s lack of response.
Seven days later, the wife approached the police with allegations about family violence. The wife denied that the violence was a recent invention. The wife was asked why she took three months to apply for a family violence order. She answered that she felt threatened by the husband, and that he had been verbally abusive at changeover. She believed that there was a lot of mental and emotional intimidation from him, and it was for her protection.
The wife said that there were more incidents of violence than the two incidents conceded by the husband. She gave the example of when he kicked her in January 2009. The husband was agitated that she was not up at 6:00 a.m. [Y] was rude to her and she complained to the husband about how [Y] had spoken to her. He pushed her and kicked her in the behind. She threw juice at him. The force of the kick was not enough to cause a bruise or spill the juice.
The wife said that after separation she met with the husband to discuss their issues. The parenting orders were in place. She said that the husband wanted to reconcile. She told him the relationship was over, and asked him whether they could reach agreement to save court and legal costs. The husband told her that he had filed a financial application.
In two letters from the husband’s solicitors to the wife’s solicitors dated 1 April and 16 April 2009, the husband raised the wife’s attitude and conduct towards him. He asserted that she had been demeaning and abusive. He also asserted that she had been increasingly threatening and bullying towards him. No response was received from the wife’s solicitors. During cross-examination, the wife denied that she had been abusive to the husband.
The wife agreed with Dr S’s psychiatric assessment. When asked whether she feels risk from the husband now, she answered that she finds the husband intimidating and “predicably unpredictable”. However, the wife has not sought or obtained a further family violence order after the order expired on 12 June 2010. She has not sought injunctive orders for her protection against the husband. She has agreed to proposed orders for the husband’s time with the children to recommence, on the condition that he attends counselling.
The wife said she found the husband intimidating when she was asked about his attendance at the children’s extra-curricular activities. Her description of his intimidating behaviour was that he would position himself so she could not be with the children. His attendance caused distress to the children as they could not predict whether he would be there or not.
Conclusion as to family violence
I accept that there have been incidents of conflict during the parties’ relationship and I accept that the relationship was volatile. I am not persuaded that the incidents early in the parties’ relationship occurred in the way described by the wife. There was no evidence of physical injury having occurred, of the wife seeking medical attention or the wife making complaints to police or anyone else, until the family violence order was made. If the husband had banged the wife’s head against a tree, punched her in the face and slammed her head repeatedly against the ground, it is difficult to accept that the wife did not require any medical treatment. I consider that she has exaggerated the incidents, although I am not persuaded by the husband’s evidence that incidents did not occur. I accept the evidence that the husband has pushed and kicked the wife. However, I am not persuaded that the wife was fearful or apprehensive about her personal safety.
The wife was prepared to enter into consent orders on 17 March 2009 about the children. They provided that the changeover for the children take place at [omitted] Café at [omitted], that both parents be at liberty to attend all the children’s activities including school activities, performances and extra-curricular activities, and that the wife be permitted to enter the Property P home, from time to time as agreed with the husband, to collect items as agreed.
The husband was very bitter about the parties’ separation and did not behave appropriately towards the wife in the presence of the children. I accept the husband’s evidence that the wife has also spoken to him inappropriately in the presence of the children. I refer to the evidence of Ms S; particularly, [X]’s comment the parents were cross with each other, and that he wanted to tell them to stop arguing, swearing and fighting. Both parties have needed professional assistance to cope with the breakdown of the marriage.
I accept Ms S’s view that the financial issues have increased the conflict and problems between the parties. The wife believed that the husband was trying to take her inheritance and the husband believed that the wife was being manipulative to bolster her case. Ms S is of the view that once the financial issues are finalised, there should be a reduction of conflict.
All the evidence, including the fact that the wife met with the husband following separation, the nature of her text messages to him, the timing of the wife’s complaint to the police three months after separation and the wife’s action of throwing juice at the husband after he kicked her, does not persuade me that the incidents caused the wife to be fearful or apprehensive about her personal safety.
I am not persuaded that the violence which has occurred amounts to family violence within the definition of the Family Law Act1975.
Relevant Law
Section 60CA of the Family Law Act 1975 provides:
In deciding whether or not to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.
A court, in determining what is in a child’s best interests, must consider the primary considerations and the additional considerations set out in s.60CC, informed by s.60B, which set out the objects of Part VII of the Family Law Act 1975. Section 60B provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The court is required to consider s.61DA which provides the presumption that, if a court makes a parenting order, it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of child abuse or family violence and may be rebutted if there is evidence that it is not in the best interests of the child. If the presumption of equal shared parental responsibility applies, the court is required by s.65DAA(1) and s.65DAA(2) to consider whether it is in the child’s best interests, and whether it is reasonably practicable, for the child to spend equal time with each parent. If the Court does not make an order for equal time, it is then required to consider whether it is in the child’s best interests, and whether it is reasonably practicable, for the child to spend substantial and significant time with each of the parties.
The primary considerations cannot be considered without reference to the additional considerations. Bennett J, has said:
I interpret s.60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the parents and [the child] by reference to additional considerations. It is a prospective enquiry. I am therefore required to evaluate the extent which a meaningful or significant relationship with both of [the child’s] parents is going to be beneficial and of advantage to [the child] into the future.[2]
[2] Claringbold & James [2007] FamCA 1032 at 226
Recently, in MRR v GR[3] the High Court considered s.65DAA.
[3] (2010) 240 CLR 461
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase "substantial and significant time”.
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".[4]
[4] Ibid at 464
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order…[5]
[5] Ibid at 466
I now turn to the s.60CC considerations.
Section 60CC(2)
The primary considerations are:
(a) The benefit of the child having a meaningful relationship with both of the child’s parents;
(b)The need to protect the child from physical or physiological harm from being subjected to, or exposed to abuse, neglect or family violence.
The Court’s obligation is to make those orders most likely to promote the child’s best interests. Section 60CC(2)(a) provides that it is a primary consideration for the children to have the benefit of a meaningful relationship with both of their parents. Pursuant to s.60B(1)(a), the Court is required to ensure that the best interests of the children are met by ensuring that the children have the benefit of their parents having meaningful involvement in their lives.
The term “meaningful” is not defined in the legislation but it has been the subject of a number of judgments. Cronin J said in Tait & Densmore[6]: “Is there any difference between a [meaningful] involvement and a meaningful relationship? I think not.”[7]
[6] [2007] FamCA 1383
[7] Ibid at 165
Cronin J went on to say:
In a case such as this, it is therefore important to examine not so much whether the relationship will change but rather whether the proposals will enable the children to have a significant, purposeful and constructive benefit from their association with their father. Will he still be able to influence and direct their development? Will he be able to show them how to live responsibly? Will he still be able to teach them things that we all expect of parents? Will the children be able to look up to and admire him as the person from whom they should seek both solace and guidance?
…
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child…[8]
[8] Ibid at 169-170
Brown J in Mazorski v Albright[9] considered the dictionary definitions of “meaningful” and then went on to say:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[10]
[9] (2007) 37 Fam LR 518
[10] Ibid at 526-527
It is of benefit to the children that they have a meaningful relationship with both parents, dependent upon the parents’ capacity to limit the children’s exposure to conflict and to comply with the proposed Court orders.
The children have a good and loving relationship with both parents. The issue is; which of the living arrangements for them, as proposed by each parent, will result in the recognition of the importance to them of a meaningful relationship with both parents and in the provision of the benefit of such a relationship?
Section 60CC(2)(b)
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse neglect or family violence.
There is evidence that the children have been subjected to conflict between the parties. The husband has made inappropriate comments about the wife to the children. The children have heard the parents arguing. The children have said that they do not want to be involved in the arguments between the parents.
Dr W indicated that the children had been suffering significant stress, regularly presented as highly distressed and did not appear to be coping with the conflict. The children need to be protected from exposure to further conflict, which can result in psychological harm.
Relevant section 60CC(3) considerations
Section 60CC(3)(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
When Ms S interviewed the children, [X] indicated that he liked the arrangements in place at that time, which provided for 5 nights per fortnight with the husband and the balance of time with the wife. [Y] told Ms S that he should be living with both his mother and father.
Section 60CC(3)(b)
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
The children have a close and loving relationship with both parents. They have limited connection with their extended families, as the husband’s family live in Switzerland. The wife’s brothers live in Western Australia. There is no evidence about whether the children spend time with the wife’s biological father or her half siblings.
Section 60CC(3)(c)
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The husband has not encouraged a close and continuing relationship between the children and the wife. There is evidence that he has spoken inappropriately and sworn about the wife to the children.
The wife has facilitated and encouraged a close and loving relationship between the children and the husband. She attempted to involve the husband in counselling with the children and Dr W. She arranged for the children to send the husband Easter and Christmas cards. She sent the husband a video of the [H] School speech night.
The wife proposed that the husband have supervised time with the children, whilst the risk to her and the children from the husband was being assessed after the hearing adjourned in July 2010.
Section 60CC(3)(d)
(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
One issue is whether the children should spend a one week, or a two week block period with the husband during the Christmas school holiday period. Ms S is of the view that a fortnight-about arrangement is preferable, so that both parents have the opportunity to go away with the children on a longer vacation. She had no concerns about the children having this period of time away from the wife, given their ages. She said that the youngest child, [Z], is attached, warm and loving to both parents, who treat her appropriately.
Section 60CC(3)(e)
(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
There are no relevant practical difficulties or expenses prohibiting the children from spending time and communicating with each parent.
Section 60CC(3)(f)
(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;
Both parents have the capacity to provide for the physical needs of the children.
The wife has the capacity to provide for their emotional and intellectual needs. She has the capacity to provide for their physical needs.
The husband has shown a lack of insight into the emotional needs of the children during the separation period. He has not shown any understanding of the significant impact his actions have had on the children and their relationship with the parties. He has shown a lack of appreciation of the effect that his behaviour has on the children, and the reasons why they attended therapy and counselling. Whilst the husband was upset about the separation, he put his needs before the needs of the children.
Section 60CC(3)(i)
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Since separation the husband has behaved inappropriately as a parent and has shown a lack of insight. Since July 2010 he has not spent any time with the children.
For Father’s Day, the children drew pictures and cards for the husband and sent them to him. The wife arranged for the children to make Christmas cards, which they sent to him.
Through his solicitor, the husband asked for an address to provide presents to the children. The wife’s solicitor responded by asking for the presents to be delivered to her address. Instead, the husband attended [omitted] School and left a present for [Z] in her locker. He also attended the [H] School and left a present for [Y] in November 2010. This caused anxiety for [X], as [Y]’s present was left at the school just before [X]’s birthday, but [X] did not receive a present. [X] became agitated and upset about this. A few weeks later, after [X]’s birthday, the husband dropped a present to [X] at the school.
[X] received a school award towards the end of the 2010 school year. The wife purchased a copy the speech night video and forwarded it to the husband so he could see [X] receiving his award and see both of the boys performing on the night. The husband did not correspond with the children in respect of the award or the speech night.
The husband admitted that he did not take [X] to a scout camp, and that he did not take [Y] to a cub camp. He also agreed that the children have missed birthday parties whilst spending time with him on weekends.
The husband has involved the children in the dispute between the parents. He admitted telling the children that the wife had been lying, had broken into their home with a strange man and removed things without telling him. He admitted that he told the children that he would cut out his tongue with a rusty tin lid before he would speak to her.
The husband said that he talked to the children about the wife’s affidavit, but that he did not give it to them. At first, the husband agreed during cross-examination that he read the reports of Ms S and Dr W to the children. Then he said he did not read the reports to the children; he only talked to them about the reports. When asked why he involved the children in the proceedings, he answered ‘why not?’ He said that the wife put words into the children’s heads and he tried to tell the children that what she was telling them was not true.
The husband needs to reflect about his past behaviour and put the children before his own personal needs.
Sections 60CC(3)(j) and (k)
(j) any family violence involving the child or a member of the child's family
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I have referred to the family violence order made against the husband in June 2009. I refer to the discussion about family violence earlier in these reasons.
Section 60CC(3)(l)
(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
Because the husband has not spent time with the children since July 2010, both parents accept that the children should be gradually reintroduced to the husband, conditional upon the husband attending counselling with the children. The extent and progress of the father’s time with the children is in dispute, but it is agreed that there be a review. I consider that this is in the children’s best interests. It is therefore not preferable to make an order that would be least likely to lead to further proceedings.
Section 60CC(4) and (4A)
These sections overlap to some extent with section 60CC(3)(c) and (i). The husband failed to spend time with the children and communicate with them after the hearing in July 2010. At the end of the hearing, the wife offered the husband supervised time, but he would not see the children at all.
The husband did not send Christmas presents to the children. He did not tell the children he was going overseas. The wife sent a video of the [H] speech night to him. He did not write to the children.
Parental responsibility
The presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of a child or has engaged in family violence. I have found that conduct amounting to abuse or family violence within the definition of the Act has not occurred in this case. Accordingly, the presumption applies. However, as a parenting order must be in the best interests of the child, a court may, in the exercise of its discretion, find it inappropriate to make an order for equal shared parental responsibility in certain circumstances.
I am therefore required to consider whether such an order, or an order for sole parental responsibility as sought by the wife, is in the best interests of the children.
An equal shared parental responsibility order requires both parents to share the exercise of parental responsibility when making decisions about long-term issues in relation to the children. Decisions are required to be made jointly by the persons who are sharing the responsibility. Each person is required to consult with the other person and make a genuine effort to come to a joint decision about the issues.
Major long-term issues include issues about the child’s education, the child’s religious and cultural upbringing, the child’s health, the child’s name and changes to the child’s living arrangement that it make it significantly more difficult for the child to spend time with a parent.[11]
[11] Section 4(1) of the Act
An order that the wife have sole parental responsibility will mean that the husband will have no rights, responsibilities and authority in respect of major long-term issues for the children. This may be appropriate when parents are incapable of effectively communicating in order to consult and make a genuine effort to reach agreement about major long-term issues affecting their children.
After separation, the wife tried to communicate with the husband about the children’s day to day needs[12]. The husband did not respond. He was not prepared to text, telephone or send emails to the wife about the children. When the husband was cross-examined about his refusal to communicate, he said that he would not communicate with the wife until she stopped lying about everything.
[12] Exhibit “W2”
In respect of future parenting, the wife said that it was her hope that the children can have a healthy relationship with both parents. She hoped that the husband will begin to communicate. She saw herself consulting the husband about decisions for the children and communicating with him about the children’s activities. She has never had any problems consulting with him. The problem was that he would not respond to her.
During cross-examination, the wife said that if she and the husband were to undergo counselling and learn to communicate, there could be a lot of growth for them. She said that she believes that the husband loves the children and that the children love him. The Family Consultant’s view is that the husband has a good relationship with the children.
The wife accepted some of the blame in respect of the communication problems. She said the husband misconstrued some of the things she said, and that she could have listened to him more in order to alleviate the conflict which followed.
The husband has agreed to attend counselling, which should result in a change in his attitude. Once the proceedings have ended, the conflict is likely to reduce. The wife is positive about future communication. The parties have agreed to use a communication book, which will assist them.
I consider that an equal shared parental responsibility order will work. I consider that it is important for the children that the husband be involved in making decisions about their long-term welfare. I consider that it is in the best interests of the children for both parents to be involved in making these decisions.
Time Spent
As there is to be an order for equal shared parental responsibility I must apply the provisions of section 65DAA as explained by the High Court in the case of MRR v GR.[13] In light of that judgment, I am required to consider whether it would be in the best interests of the children to spend equal time with the parties, and whether it would be reasonably practicable for them to do so.
[13] Op Cit
In making my considerations, I have regard to the competing proposals of the parties. Neither party is seeking an order that the children to spend equal time with each parent. Both parents propose that the children live with the wife.
Whilst the parents live in reasonable proximity to one another, and it is reasonably practicable for the children to spend equal time with each parent, the evidence indicates that it is not in the children’s best interests for them to spend equal time with each parent. Accordingly, I will not make an order for equal time.
I am required to consider whether an order that the children spend substantial and significant time with the husband is in their best interests and whether it is reasonably practicable for them to do so.
The wife proposed that the children spend time with the husband each alternate weekend on Saturday from 9:00 a.m. until 6:00 p.m. during daylight savings time, and until 5.00pm at the end of daylight savings time. This time is conditional upon the husband attending counselling. At the expiration of four months she proposed that there be a review of this time.
The wife explained that she changed her proposal to one in which the children spend time with the husband on one day each fortnight because she thought it would be very distressing for the children to go backwards. She did not want to see them experience the emotional problems they had suffered before. The wife believed that the significant improvement she noticed in the children’s behaviour since July 2010 was because they were no longer subjected to the conflict between the parties, and because they had not been spending time with the husband.
The wife was asked whether the children should be able to spend substantial and significant time with the husband, if the conflict between the parents is removed. She answered, that if the husband were able to communicate, co-parent and put the children first, substantial and significant time should occur. She said that the children could enjoy a happy and meaningful relationship with the husband.
Ms S was of the view that the improvement in the children’s behaviour after July 2010 was due to the children’s lack of exposure to conflict. She was of the view that the wife’s proposal that the children spend time with the husband on one day each alternate week was not enough time. She believed that shorter, more frequent periods of time, such as time each weekend, would be better for the children.
Ms S said during her oral evidence on 27 January 2011, that she had not changed her views about the children’s time with the husband, due to the good relationship that he has with the children. She said that she was in favour of an automatic progression of the children’s time with the husband and, if problems arose Dr W could advise them and assist in the progression.
I accept Ms S’s evidence that it is in the children’s best interests to spend time with the husband from Thursday after school until Monday morning at school in week one, overnight on Thursday in week two, and for one half of the school holidays. I accept her evidence that the Christmas school holiday time should be in two week blocks so that the parents are able to take the children on a longer holiday.
I consider that it is in the children’s best interests that, wherever possible, changeover occurs at the schools. It is agreed that changeover take place at McDonalds in [omitted] at times when the school is closed.
I accept Ms S’s evidence that Dr W is the appropriate counsellor. The children know him and Ms S believes that it would be unfortunate if the children were required to place their trust in a new counsellor. The need to build a relationship with another counsellor can be stressful for a child.
While the husband indicated his preference for Dr P, he will attend counselling with Dr W if the Court so orders. I accept Ms S’s evidence that Dr W should be able to overcome any difficulty surrounding the husband’s discomfort with him.
I am of the view that there should be an automatic progression of the children’s time with the husband over 4 months concluding with time; in week one, each Thursday after school until Monday morning at school and; in week two, from after school Thursday until Friday morning at school. I consider that there should be a review at the end of the 4 month period. During this 4 month period the children’s time with the husband can be increased. As suggested by Ms S, Dr W can advise and assist if problems arise in the progression.
The wife proposed an order that the husband not take the children shooting when the children are in his care. There is little evidence about this issue. The wife deposed in July 2010 that [Y] returns from time with the father obsessed with killing and hunting animals. [Y] told the wife the father takes him to visit his gun collection, and that a .22 rifle belongs to him. The husband said that [Y] likes to go to the gun club. The children are young. I am not persuaded that it is in the children’s best interests to go shooting with the husband and I will make the order sought by the wife regarding firearms.
Property
The husband commenced property proceedings on 23 April 2009. He sought property or, in the alterative, spouse maintenance orders. The wife filed a Response on 29 May 2009. She sought property and parenting orders. Following an interim hearing on 11 June 2010, I dismissed the husband’s application.
The parties own assets which are located outside of Australia. Those assets include real property located in Switzerland and Canada:
·The husband is the registered proprietor, and the wife is mortgagee, of a property located in Property G in Switzerland (“Property G ”); and,
·The wife is the registered proprietor of a property located in Property C in Canada (“Property C ”).
The parties are the joint registered proprietors of the property located at Property P in Tasmania (“Property P”).
The wife is the beneficiary and member of several trusts. They are as follows:
·The [P] Family Trust, of which she is a beneficiary, along with her two brothers;
·The [F] family trust; and,
·The [F] superannuation trust (“the [F] super trust”).
The husband seeks a 65/35 division of the assets in the wife’s favour. The wife proposes a 80/20 division of the assets in her favour. The assets to be retained by each party are agreed.
Relevant Law
Section 79(2) of the Family Law Act 1975 requires that any order made by the Court must be just and equitable. Section 79(4) provides the matters which are to be taken into account when considering what order should be made.
Section 79(4) involves a four step exercise, namely:
(i) The identification of the property of the parties, their assets and financial resources.
(ii) The evaluation of the contributions.
(iii) The evaluation of the matters referred to in s.75(2).
(iv) A determination as to whether the result is just and equitable by considering the real impact in money terms of the orders.[14]
[14] Hickey & Hickey (2003) FLC 93-141 and Ferraro & Ferraro (1993) FLC 92-335
Asset by Asset or Global Approach?
In property proceedings, the Court may make such order as it considers appropriate. The usual approach is for the Court to consider the property of the parties as an overall pool. However, it is also open to the Court to consider the assets of the parties on an asset-by-asset approach. In Norbis v Norbis[15] Mason and Deane JJ, with whom Brennan J agreed, said:
…Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient. It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court. In saying this we are not to be understood as denying the legitimacy of the trial judge's ascertainment in the first instance of the financial contributions of the parties by reference to particular assets. It is difficult to conceive how the trial judge in many cases could otherwise take account of such contributions as he is required to by s.79(4)(a) of the Act…
…Again, it seems to us that it will depend on the circumstances of the particular case, though in the majority of cases the global approach will be the more convenient and for this reason the Full Court is entitled to prescribe its adoption as a guideline in the majority of cases. The Family Court has rightly criticized the practice of giving over-zealous attention to the ascertainment of the parties' contributions, and we take this opportunity of expressing our unqualified agreement with that criticism, noting at the same time that the ascertainment of the parties' financial contributions necessarily entails reference to particular assets in the manner already indicated. [16]
[15] (1986) FLC 91-712
[16] at 75,168
Counsel for the wife submitted that the Court should adopt an asset-by-asset approach in this case because the wife’s initial contribution of her inheritance has been used to build up the assets of the parties, and the husband’s contributions have not eroded her initial contribution. Counsel for the wife further submitted that the husband’s financial contributions were negligible and there was no evidence that his improvements to Property C and Property P increased the values of those properties. In respect of the husband’s contributions to the welfare of the family, Counsel for the wife submitted that the husband did assist, but not to the extent asserted by him.
The way the assets brought into marriage by the parties are to be treated was considered in the decision of the Full Court of the Family Court in Pierce & Pierce[17]. The Full Court said:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home…[18]
[17] (1999) FLC 92-844
[18] Ibid at 85,881
In Williams & Williams[19] the Full Court stated:
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus, where the pool of assets available for distribution between the parties consists of say an investment portfolio of a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so, it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.[20]
[19] [2007] FamCA 313
[20] Ibid at 26
The Full Court referred to the decision of MH & MZ[21]. In that case, the Full Court allowed an appeal where a pool of assets worth $1.12 million had been assessed for contribution purposes as 75% in favour of the husband and 25% in favour of the wife. The Full Court stated:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bring into consideration the myriad of other contributions each made in the course of their relationship.[22]
[21] (2005) FLC 93-226
[22] Ibid at 79,730
The weight to be attributed to initial contributions and other contributions is not required to be a mathematical or a counting exercise. In Clives & Clives[23], the Full Court said:
We accept that the task to be undertaken by a trial judge in assessing weight to be attached to initial contributions, and other contributions, is not always an easy one and not discharged by a strict accounting exercise…[24]
[23] (2008) FLC 93-385
[24] Ibid at 82,936
Counsel for the wife submitted that an asset-by-asset approach should be adopted because the wife’s initial contributions have not been eroded by the husband’s subsequent contributions. In accordance with the case authorities the subsequent contributions must be assessed and given appropriate weight. I am not persuaded that an asset-by-asset approach should be adopted because of the wife’s initial contributions.
It is not necessary to provide precise mathematical evidence of valuations of the parties’ contributions, especially where they are indirect or non-financial. I do not accept the submission of Counsel for the wife that there needs to be evidence that the improvements made by the husband to Property C and Property P have increased the value of these properties[25].
[25] See Kessey & Kessey (1994) FLC 92-495
The parties cohabited for around 11 years and they were married for nearly 6 years. There are 3 children of the marriage. The husband earned income in Canada and made non-financial contributions to Property C and Property P. He has made contributions to the welfare of the family. For these reasons, I consider that it is appropriate to adopt a global approach.
Both parties adopted a one pool approach, which in my view is appropriate, given the size of the pool.
Disputed Assets
The parties agreed the values of the assets apart from the following :
Wife’s Value Husband’s Value
Property G: $310,880.00 $420,335.00
Chattels at Property G: $6,758.00 $2,607.00
Truck at Property C: $3,821.00 N/A
Property G
Background
The property in question is located in the town of Property G in Switzerland. It is located adjacent to a [omitted].
In 2005, the parties purchased Property G from Mr K (“Mr K”), who is the husband’s father. The wife provided the entirety of the purchase funds. At the time of the transaction, she was not permitted by Swiss law to own real-estate in Switzerland, so Property G was registered in the husband’s name alone. A mortgage was established by the husband in favour of the wife for a debt of CHF 200,000.00. Mr K and the parties agreed that Mr K should remain living in Property G until his death.
The husband annexed the contract of sale (“the contract”) to his affidavit filed 17 June 2010.[26] He also annexed a copy of that contract, as translated by him, to the same affidavit.[27]
[26] Annexure
[27] Annexure
The purchase price was CHF 400,000.00. However, clause 6 of the “special regulations” in the contract states that the market value of the property was CHF 487,000.00 at the time of purchase.
Broadly speaking, the terms of the purchase were as follows: Mr K was paid around CHF 247,311.00. The remaining sum was not paid, as it was calculated to be the rent Mr K would pay over 10 years if he remained living in the property, at a rate of approximately CHF 1270.00 per month. If Mr K were to die prior to the expiration of ten years from the date of sale, the remaining liability is to be paid to
Mr K’s estate.
Mr K’s interest is described within the contract as follows:
The following new personal servitude is established… Life long dwelling right… incumbent on property [G]… with respect to
Mr K… The respective owner of Property G (actual owner
Mr Korman …)…hereby concedes… his father… a life long dwelling right…
This interest enabled Mr K to have exclusive use of the whole residential building and workshop and the right to use the garden shed. The interest is registered as an easement in the land registry.
The contract provided that the land registry office in Switzerland was directed and authorised:
1. to transfer ownership of property [G] from Mr K… to
Mr Korman…and
2. to register a life long dwelling right in favour of Mr K…
The dwelling right was valued as follows in the contract of purchase.[28]
“The dwelling right is valued as follows: The entitled person is 73 years old. In consideration of this age the amount of Fr. 78.49 is taken from the table for the calculation of capital payments into life long pensions. The capitalisation factor is calculated from Fr. 1’000. -: 78.49= 12.74. This factor of 12.74 is multiplied with 80% of the value of location of Fr. 15’000 – of the official estimation of 28.10.1994= Fr. 12’000.- and thus results in the value of the dwelling right of Fr. 152’880 . – (Swiss Francs one hundred and fifty two thousand eight hundred and eighty Swiss Frances only (80% of Fr. 15’000 = Fr. 12’000 – x 12.74 = Fr. 152’880.)) This value, as stated in the regulation of the purchase price, is subtracted from the purchase price. Per year of exercise the amount of Fr. 15’000. – is taken into account into the value of the dwelling of Fr. 152’880. If the dwelling right is exercised less than 11 years by the entitled person, the difference resulting between the duration multiplied by the value of location and the value of the dwelling right is to be calculated and divided among the heirs of the entitled person.”
[28] Affidavit of the husband filed 17 June 2010, Annexure “A”
History of the proceedings and valuation regarding Property G
An order was made by consent in this Court on 9 September 2009 that a valuation of Property G be prepared at the joint expense of the parties. On 20 November 2009 the wife’s solicitors wrote to the husband’s solicitors requesting the husband’s agreement that [R] (“[R]”), a real-estate agency, value the property. The husband did not agree and did not propose any alternative.
The wife arranged for Mr F of [R] to value the property in Property G. However, Mr F was unable to obtain access to the property in order to complete the valuation.
The wife filed an Application in a Case on 15 April 2010 seeking an order that the Mr F have access to the property. On 5 July 2010 this Court made an order that the husband do all things and acts necessary to enable [R] staff to access Property G for the purpose of the valuation. However, even after that order was made, Mr F was unable to access the property.
The husband gave evidence that Mr K would not allow Mr F to access the property. However, the husband stayed in the Property G home between December 2010 and January 2011, when he visited Switzerland for a holiday. He did not obtain a valuation during that period, nor did he allow Mr F to obtain access to the property whilst he was staying there.
The husband therefore did not comply with the consent order made in September 2009 or with the July 2010 order.
Nonetheless, Mr F prepared a valuation of Property G, which was filed on 7 January 2011.[29] An English translation of that report was filed on the same date.[30] Because Mr F was unable to access the property, he valued the property by way of a “kerbside” or “restricted” valuation, consisting of an external inspection, and with reference to the market in the area. He adopted a statistical methodical model.
[29] Affidavit of Mr F filed 7 January 2011, Annexure B
[30] Affidavit of Mr F filed 7 January 2011, Annexure C
Mr F gave evidence at the trial and was cross-examined. He appeared by telephone link from Switzerland. Although Mr F speaks English, he had some difficulty understanding questions and making himself understood. Despite this, neither party requested the presence of an interpreter.
Mr F was of the opinion that the market value of the property is CHF 475,500.00. He referred to the dwelling right as “the accustomed right,” which was valued in 2005 in the purchase contract as CHF 152,880.00. For each year of the use of the accustomed right, CHF 15,000.00 will credit, so Mr F deducted 5 years, at a total of CHF 75,000.00, resulting in a net value of CHF 405,500.00. In the valuation, Mr F stated that the estimation of the “wohnrechts” was not the object of his estimation. It was not clear from the evidence what this meant and no submissions were made about it.
During cross-examination, Mr F said that he has been asked to market or sell properties with a life long dwelling right on two previous occasions. When he was asked how he went about marketing these properties, he said:
…Marketing? To sell? To sell? Well, you’re not talking about now valuation, about the selling, yes? ... We can’t do a selling of it…because he has the long-life right to live in it…
He then said that he would have a problem selling such a property, because a new owner would only have access to the property if he made an arrangement with the life tenant, or he purchased it as an investment and allowed the life tenant to remain living in it. He said “it’s kind of tough”. I consider that this evidence indicated that whilst such a property is difficult to sell, it is not the case that it cannot be sold.
The husband obtained his own valuation of Property G. That valuation was performed by Mr Christian Thony, a lawyer from the Swiss law firm Caviezel Thony Cantieni.
There was no evidence of Mr Thony before the Court. Mr Thony was not made available for cross-examination.
Counsel for the husband tendered a letter from the husband’s solicitors to the wife’s solicitors.[31] That letter is dated 20 October 2009. The relevant paragraph reads as follows:
I enclose a valuation/opinion which [the husband] has obtained from Mr. Christian Thony from the Swiss law firm, Caviezel Thony Cantieni. [The husband’s] translation of that document, dated 20 October 2009 is also attached. As you will see, the value attributed to the property in Switzerland is 295,120 Swiss francs [$310,880.00]
[31] Exhibit “H2”
However, that translated valuation was not attached to the tendered document. Instead, the husband annexed a portion of the letter from Mr Thony to his affidavit dated 17 June 2010.[32] That portion was translated by the husband on 20 October 2009, and is presumably the translation mentioned in the tendered letter.
[32] Annexure “C”
The translated letter outlines the methodology used by Mr Thony in his valuation of Property G. It reveals that he arrived at the figure of CHF 295,120.00 by deducting CHF 152,880.00, the value of the dwelling right calculated at the time of purchase, from CHF 448,000.00; the sales value of the property as assessed in a valuation prepared on
22 July 2009.
Submissions regarding Property G
Although Counsel for the husband included Property G in the property pool in his Outline of Case document at a value of $310,880.00, he submitted that Property G does not have a value, and that it should not be included in the pool of assets. This is for the reason that Property G cannot be sold because of Mr K’s dwelling right.
Counsel for the husband referred to the following passage from the judgement of Griffith CJ in Spencer v The Commonwealth[33]:
The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view ascertain what, according to the then current opinion of land values, a purchaser would have to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together.
[33] (1907) 5 CLR 418
Counsel for the husband submitted that Mr K’s dwelling right means that it is not currently a property for which there exists a “desirous purchaser”, because any purchaser would be required to accommodate Mr K’s interest. He submitted that, because no-one will currently buy Property G, it does not have a value. He submitted that Mr F’s evidence supports his contention that Property G is currently unsaleable.
Counsel for the husband submitted that when Mr K dies, the husband’s interest in the land will realise. Accordingly, the Court should treat Property G as a financial resource of the husband. Alternatively, he submitted that the Court deal with Property G in the fourth step of the examination of the property.
Despite these submissions, Counsel for the husband conceded that the husband may be able to use Property G as security for a mortgage, and that it was possible that Mr K’s interest in Property G could be transferred to another property.
Counsel for the wife submitted that the Court is bound to accept the valuation of Mr F, as the husband presented no evidence to the contrary. Additionally, he pointed to the husband’s “obstructionist attitude” regarding the valuation of Property G. He submitted that the methodology used by Mr F in his valuation is in line with the calculation of Mr K’s dwelling right in the contract.
Conclusion as to the value of Property G
The husband owns Property G subject to a life-long dwelling right. This right meant that the husband and the wife did not have to pay
Mr K the full purchase price of CHF 400,000.00. Instead, they paid him the sum of CHF 247,311.25.
The husband has a present vested interest in Property G, but the date of his enjoyment in possession of it is postponed until the death of Mr K or the deletion of the dwelling right. This means that the husband’s interest in Property G is not a contingent interest; one that depends on the happening of an event which might never occur.
Anthony Dickey has written:
As a matter of principle, it would seem reasonable to say that “property” for the purposes of the Family Law Act comprehends both vested and contingent interests. Both are certainly recognized as property at common law. On this basis, for example, a right of a person to receive property upon reaching a particular age constitutes property no less than a right of a person to receive property at a particular time. (The former is contingent because the right of enjoyment depends upon the happening of an event that might never occur. The latter is vested because the right of enjoyment depends upon an event that must occur, even though the right of the person with the interest might not be alive and will then not enjoy it in possession).
He continued:
It would appear that the kernel of the notion of “property” for the purpose of the Family Law Act is that it involves an interest which a person owns at the present time, even though full enjoyment of this interest –in other words, enjoyment in possession – might not occur until some time in the future or (if contingent interests are to be included) until some future event takes place, even though this might never happen. It is anyway of the essence of property that it involves an interest which is owned at the present time. It is strictly irrelevant that this interest might be terminable at some time in the future, for it is nonetheless owned now and will continue to be owned until ownership is terminated.
All the evidence establishes that the husband has a vested interest in Property G. I do not accept the submission of the husband’s Counsel that it does not have a value. I consider that to accede to the husband’s submission not to include it in the pool would not be just and equitable. Accordingly, I intend to include Property G in the pool of assets.
I do not accept the valuation of Mr Thony, the husband’s Swiss lawyer. Mr Thony did not provide sworn evidence, and was not cross-examined. His valuation was untested.
Mr F provided a market value of the property, taking into account the accustomed right of Mr K to live in the property in accordance with the value calculated and agreed in 2005. I do not accept the submission of the husband’s Counsel that the property does not have a value because it cannot be sold. The evidence of Mr F was that whilst such a property is difficult to sell, it is not the case that it cannot be sold. I accept his valuation and find the value of Property G is CHF 405,500.00 or $420,335.00.
Chattels and Truck in Canada
There are no valuations in respect of the chattels and the truck in Canada. The husband’s evidence was that the chattels are old and worthless, apart from a cabinet worth CHF 2,500.00. He has around 6 rifles worth $100.00 each. I accept his estimate of the value of the chattels at $2,607.00. The husband said that the truck had been sold before the parties left Canada in 2006. There is no other evidence about the truck. I do not intend to give it a value.
Conclusion as to Assets and Liabilities
Assets
Property P $550,000.00
Property C $313,188.00
Property G $420,335.00
20 Foot shipping Container (x 2) $4,000.00
Chattels retained by the wife $43,618.00
Chattels retained by the husband $45,322.00
Tractor at Property P $37,000.00
Backhoe attachment to tractor $5,000.00
Offset slasher $1,200.00
[vehicle omitted] driven by husband $11,500.00
[vehicle omitted] driven by wife $58,000.00
Husband’s firearms $18,375.00
Caravan $33,500.00
[F] family account $2,370,433.00
[F] Super fund $234,016.00
Wife’s Bankwest Complete account $8,351.00
Wife’s Gold Cash account $27,038.00
Chattels at Property G $2,607.00
Total $4,183,483.00
Liabilities
Wife’s Mastercard Gold debt $28,934.00
Bankwest Mastercard $4,637.00
Husband’s personal loans from family members $29,000.00
Total $62,571.00
Net Total $4,120,912.00
Contributions
Evidence of the husband
At the commencement of their relationship, the husband owned a property in British Colombia in Canada. Upon sale of that property, he received CAD 60,000.00.He used some of those funds travelling with the wife to Europe and Jamaica. He also paid for his flight to Australia in 1998.
At the commencement of the relationship, the husband also owned a truck and a caravan. He sold them in around 2006 for CAD 6,500.00. The husband conceded that the wife’s initial contributions far exceeded his own.
During cross-examination, the husband said that, when he lived in Canada before he met the wife, he worked as a [omitted], depending on the season. He worked between four weeks and two months each year. The wife and he agreed that he would not go away from the area to work, but that he would stay and work around the house or do odd jobs in the area. The wife told him that she earned enough income for both of them, around $12,000.00 – $15,000.00 per month. He gave up full-time [occupations omitted].
The wife was responsible for the finances. She paid for the outgoings of the properties and she paid for all vehicle costs, apart from the vehicle he owned when they met.
The husband asserted that the parties made equal contributions to home-making and parenting. During the marriage he got up at 6.00 a.m. He made breakfast for the children and the wife made their lunches. He would usually drive them to school and the wife usually picked them up. He put the boys to bed and read them stories. They both went to the children’s sporting activities.
The wife cooked the evening meal and he washed the dishes. The husband shared the cleaning. He did the lawn mowing, brush cutting and firewood cutting.
The husband admitted that, throughout the relationship, the parties largely lived off funds derived from the wife’s inheritance. He admitted that he made limited direct financial contributions. When the parties were both living at Property P, the husband did not pay for anything. The wife paid for all the outgoings of the Canadian property during the relationship.
Nonetheless, the husband asserted that he made non-financial contributions. He made contributions to Property C and Property P by virtue of his renovation work. At Property C he built a greenhouse, two bedrooms, a deck and a new shed. At Property P he replaced doors and windows, removed carpet and put in laminated flooring, built a retaining wall and started building a natural rock garden.
Since separation, the husband has not paid any money to the wife for the support of the children, and has made no contribution to the private school fees. He agreed for the children to attend private schools. Over the past year, the wife has paid for all the outgoings of Property P, except for the rates.
The husband is currently employed and [occupation omitted]. He earns approximately $35.00 per hour. He works from home, which gives him flexibility to pick up the children.
In the last 6 months the husband earned around $10,000.00. He has been trying to set up a small business in Property [P], [occupation omitted]. This has not been very successful. He [occupation omitted]. He recently went to Canada from 6 December 2010 to 4 January 2011. It cost him $2,700.00 for a return ticket.
Evidence of the wife
The wife’s father and mother died in 1987 and 1994, respectively. Following their deaths, the wife became a beneficiary of the [P] Family Trust. She later became a director of the trustee company of that trust. When she attained the age of 30 years, she received a cash payment of approximately $160,000.00 from the trust fund. The wife and her brothers have an equal entitlement to the trust funds.
There are limited records of the assets of the trust at the time of the inheritance. The wife listed the assets she inherited to the best of her recollection. Those assets consist largely of property, shares, and interests in unit trusts.
Shortly after becoming a director of the trustee company, the wife travelled overseas for two years. Whilst travelling in Canada in late 1997, the wife met the husband. They started living together in 1998. They travelled for about two years and lived off her investments.
The parties then returned to Australia, and lived on the wife’s family’s farm for several months. In 1999, the parties returned to Canada. They lived there from 1999 to 2006. During that time, the wife was not employed outside the home.
In 1999 the wife purchased Property C for CAD 220,000.00. The wife is the sole proprietor of the property. She has recently sold it for CAD 327,500.00, or $313,188.00. The purchasers are paying rent of CAD 750.00, or $717.23 per month until the settlement occurs. The wife has agreed to pay for repairs amounting to CAD 15,396.20, or $15,002.06.
The husband built a greenhouse at Property C. He also built a lean-to on one side of the garage, assisted building a two bedroom exterior to the home, laid a cork floor with assistance, renovated the desk, built a kitchen table, installed a heater in the living room, and replaced doors with assistance.
The wife outlined the employment that the husband undertook while in Canada. Broadly speaking, those jobs were of a temporary or contract-work nature, and consisted of [omitted].
The husband part-owned and operated a [business] called “[N]”. The wife paid for his half-share in the business. He worked at the [business] on most days. He also attended [omitted] and made [omitted] trips in Alberta and British Colombia.
The husband also owned a business in Canada called “[T]”, which he used to purchase goods and equipment for use in renovating.
All of the funds for their lifestyle, including international travel to and from Switzerland, Western Australia and Canada, and all the assets they own, have been derived from the wife’s inheritance.
In 2005 the wife’s funds were used to purchase Property G, including a cash payment of CHF 247,311.25. The wife paid around CHF 50,000.00 for renovations to the property.
In 2006 the parties returned to Australia. The wife signed a Statutory Declaration on 29 September 2005 in which she said that she would support the husband because he was not allowed to work when they first arrived in Australia. She agreed that it was a substantial change in life-style for the husband. She said that he primarily worked in [omitted], and that she assumed he would find work.
It was her expectation that the husband would not be able to support himself for a short period of time. It was never her intention to support him fully. She never gave the husband the impression that they were a one-income family.
With the wife’s funds the parties purchased Property P for approximately $520,000.00 and paid an additional $21,975.79 for stamp duty and legal costs.
They discussed that the husband would initially improve and work on Property P for a period of time, after which he would seek paid work.
The wife said that there was a lot of conflict about money during the relationship, especially about the husband’s expenditure of money on hunting trips and guns. There was also conflict about the husband’s employment situation, and about him helping around the house.
Throughout the relationship the wife’s investments provided the majority of the family income. In 2007 her taxable income was $131,057.00 gross, including capital gains of $36,436.00. In 2008 her taxable income was $178,596.00 gross. In 2009 her taxable income was $469,700.00 gross, including capital gains of $311,202.00.
Mr M (“Mr M”), the head of the Wealth Management division of [omitted], has managed the wife’s account since 2001. In that time, he has dealt exclusively with the wife and has only met the husband briefly, on one occasion.
Mr M said that when he took over the wife’s account, she advised him that she had over $3.5 million available for investment in the stock market. Those funds were invested in her personal name.
During cross-examination, the wife said that she worked for around four hours each week in respect of her investments. She agreed that she relies entirely on Mr M and he arranges the day-to-day investments with her authority. They have telephone conversations and she is required to give written authority to him for money transfers. The wife agreed that over the last three to four years there has been an increase in her income position.
During the marriage, the wife said the husband would usually prepare Monday morning breakfast for the children. He generally did the dishes in the evenings. She did everything else. She said that quite often he tended to [Y] and she tended to the other two children.
The wife said that the task of driving the children to school was shared. Most of the time, she would collect the children from school. She would always make the dinner. She agreed that the husband is a good craftsman. He made beds and chopped firewood.
Since separation, the children have lived with the wife in a rental property. Since July 2010, the children have lived with the wife full-time. The husband has not spent time with them.
The wife pays rent of approximately $1,400 per month. She pays the house insurance in respect of Property P. Until recently she paid the husband’s vehicle insurance. She pays the insurance for the tools. In 2009 she paid the Property P rates, which were approximately $1,450.00. She pays the rates of Property C, which are approximately CAD 3,534.20 per annum. During 2009, the wife paid the costs of repairs to Property C. Those repairs totalled $15,002.06.
The wife pays for all the expenses of the children, including school fees. The school fees amount to around $24,000.00 per annum. Books and uniforms for the children cost around $4,500.00 per annum. She also pays for the children’s school trips and camps, and for all of their extra-curricular activities.
The husband has had the benefit of living the Property P property since separation. He has not paid any child support, nor provided financial assistance for the children.
Conclusion as to contributions
The wife brought significant assets into the marriage. The initial financial contribution of the wife’s inheritance is significant. It has provided the parties with all the real estate owned by them, including Property G, and it has enabled the parties to live a comfortable lifestyle. During the relationship, neither party was required to work outside the home on a full-time basis. It provided the family with accommodation. The income derived from it has supported the family. I attach substantial weight to the wife’s initial contribution.
The husband also made initial contributions, but they are of less significance. Whilst the parties lived in Canada the husband earned an income. His tax returns indicated a negligible taxable income between 1988 and 2005. His business income varied from around $6,000.00 to $46,000.00 during those years. The wife’s income from her investments was substantially greater.
The husband made renovations to and worked around the property in Property C. He has also made improvements to Property P.
I accept that the wife’s evidence that she was primarily responsible for the care of the children. She home-schooled the children when the parties lived in Canada. The husband made contributions by assisting in the care of the children during the relationship.
I consider that the wife was also primarily responsible for the homemaking, including the cooking. The husband was responsible for the outside work, such as lawn mowing, brush cutting and chopping of firewood.
The wife was responsible for the running of the family’s finances.
Since separation, the husband has had the benefit of living in Property P, whilst the wife and children have lived in rented accommodation. She made financial contributions to the rates on Property P. She has continued to pay for outgoings on Property C.
The wife has made a significant contribution by caring for the children since separation. Since July 2010, the husband has not spent any time with the children. Since separation the wife has financially supported the children without any assistance from the husband.
In my view, there is no doubt that overall, the contributions of the wife far outweigh the contributions of the husband. I assess the contributions as 83% in favour of the wife and 17% in favour of the husband.
Relevant section 75(2) matters
Both parties are in good health. The wife is 39 years old. The husband is 50 years old.
The wife earns a substantial income from her investments. I repeat paragraph 249.
The husband has chosen to develop a business at the Property P property. His income is minimal. He has earned around $10,000.00 over the past 6 months. He has the capacity to increase his income by seeking full-time employment in the construction industry.
There is a large disparity of income between the parties. Even if the husband were to obtain full-time employment, he would most likely earn substantially less than the wife.
The wife has the care of the three children of the marriage. The children are under the age of 18 years. The wife has significant commitments to support the children, including the payment of their private school fees. The wife’s financial statement indicated weekly commitments amounting to $2,631.00.
The husband does not have a responsibility to support any other person. His financial statement indicated weekly commitments amounting to $604.00. He indicated he could not afford holidays, but could afford to travel to Canada at the end of 2010.
The husband does not pay any child support to the wife. It is unlikely that more than a minimal amount of child support will be paid in the future, given the husband’s work history. He does not have the capacity to assist the wife to pay the private school fees for the children.
The wife has a superannuation fund, set up in 2007. Some shares and cash were transferred from the wife’s family trust account to the superannuation account. The husband does not have superannuation.
The husband has made a substantial life change by moving from Canada to Australia. He is committed to living in Australia because the children live here.
The husband has a vested interest in Property G, however his possession of it is postponed until the death of his father, who is around 79 years old, or until the deletion of the dwelling right.
The effect of my findings as to contributions is that the husband will receive assets to a value of $700,555.00 and the wife will receive assets to a value of $3,420,357.00. I take into account this disparity of property.
Having regard to all the section 75(2) factors, I find it appropriate that there should be an adjustment of contribution based entitlements in the husband’s favour by a further 5%.
As a result of my findings the husband will receive 22% of the assets amounting to a value of $906,600.00. The wife will receive 78% of the assets amounting to a value of $3,214,312.00.
Is this a just and equitable outcome?
To make an order under s.79 the Court must be satisfied that in all the circumstances it is just and equitable to do so. I must stand back and look at the overall result to ensure it is just and equitable. Each party will retain assets as follows:
Assets to be retained by wife
Cash from sale of Property C $313,188.00
Cash from sale or payment by husband for Property P $159,739.00
BMW X 5 $58,000.00
Chattels from Property P (including artwork with wife) $43,618.00
Caravan $33,500.00
[F] family account $2,370,433.00
[F] Super fund $234,016.00
Wife’s Bankwest Complete account $8,351.00
Wife’s Gold Cash account $27,038.00
Subtotal $3,247,883.00
Less liabilities
Wife’s Mastercard Gold debt $28,934.00
Bankwest Mastercard $4,637.00
Net total $3,214,312.00
Assets to be retained by husband
Tractor at Property P $37,000.00
Gun collection $18,375.00
[vehicle omitted] motor vehicle $11,500.00
Chattels at Property P $45,322.00
Backhoe attachment to tractor $5,000.00
Offset slasher $1,200.00
20 Foot shipping container (x 2) (to be sold) $4,000.00
Property P $550,000.00
Property G $420,335.00
Chattels at Property G $2,607.00
Subtotal $1,095,339.00
Less liabilities
Loan $29,000.00
Cash payment to wife $159,739.00
Net total $906,600.00
The husband will need to borrow money to pay the wife. I will give him 45 days to obtain finance. If he cannot obtain finance, he will need to sell Property P and purchase a smaller property.
The wife will need to purchase a home for herself and the children.
In my view, this is a just and equitable outcome.
I certify that the preceding two hundred and eighty-four (284) paragraphs are a true copy of the reasons for judgment of FM Baker
Date: 23 March 2011
[34] See: A Dickey, Family Law (Law Book Co. 5th ed, 2007) at page 484-5
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