L and L

[2008] FCWA 14

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: L and L [2008] FCWA 14

CORAM: PENNY J

HEARD: 23 JANUARY 2008

DELIVERED : 7 FEBRUARY 2008

FILE NO/S: PT 2171 of 2006

BETWEEN: L

Applicant/Father

AND

L
Respondent/Mother

Catchwords:

Children's issues - the time the Applicant is to spend with the children
Property settlement - Applicant's greater financial contributions - s 75(2) factors - turns on its own facts

Legislation:

Family Law Act 1975 - s 60CC, s 75(2)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr B Kearney

Respondent: Mr M Supljeglav

Solicitors:

Applicant: Rattigan Kearney & Bochat

Respondent: DS Family Law

Case(s) referred to in judgment(s):

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

1The parties, [John] and [Emily], have been unable to resolve issues relating to the time [John] spends with their children, [Robert] and [Ann], and the manner in which their assets should be divided.

2[John] and [Emily] separated on 10 March 2006 in unhappy circumstances. [Emily] obtained a Violence Restraining Order against [John] with the result that a few days later [John] was removed from the former matrimonial home by police. He then did not spend time with the children until May 2006, when the time he spent with the children was supervised. [Emily] and the children have remained living in the former matrimonial home since separation.

3The parties were subsequently able to resolve issues relating to the time [John] would spend with the children through mediation. The present arrangements have been in place for six months. [John] seeks a slight change in them. [Emily] seeks a significant change in the hours of pick up and drop off. Both parties agree that [John] should spend four nights out of each two week period with the children.

Brief background and history of the parties and the marriage

4The parties met while they were both travelling in September 1998. In late 1998 they commenced cohabitation in Perth. They holidayed [overseas] from March/April 2000 until December in that year, when they returned to live in Perth. The child [Robert] was born [in] February 2003. The parties married in February 2004, and the child [Ann] was born [in] October 2005. They separated the following year.

Children’s issues

5As stated previously, the issue between the parties relates more to the start and finish of the time [John] spends with the children rather than the period of time he is with them. [Robert] is now aged 4½ years, and [Ann] 2 years 5 months. [John] currently works a fortnightly roster. To coincide with that roster he currently spends time with the children from 6.00 pm Monday in week 1, returning them at 3.00 pm the following day. From 6.00 pm the following Friday to 3.00 pm the next day, Saturday, and from 6.00 pm the next Wednesday, returning at 9.00 am the following Friday. The only change [John] seeks to these arrangements is to swap the period that he has two nights from Wednesday to Friday in the second week of the cycle, and to Monday to Wednesday in the first week of the cycle.

6[Emily] wants to change the arrangements so that [John] picks the children up at 10.00 am on Tuesday the first week of the cycle, and returns them at 10.00 am the following day. He then would pick them up at 10.00 am on Saturday and return them at 10.00 am on the following Monday, and then pick them up at 10.00 am the following Thursday and return them at 10.00 am the following Friday.

7The proposals put forward by the parties appear to be made on the basis that it suits them for [John]’s time with the children to occur at that time. [Emily] says a pick up at 10.00 am means that [John] would spend all day with the children and be involved in their ordinary day-to-day activities. It also allows for [John] to take [Robert] to kindergarten and be involved in those activities. [John] would rather the time with the children spent at the same time as he now has. The children are used to this routine and although the pick up is close to their bedtime, it is his view that this is not detrimental to them and he has been able to manage their behaviours for the last six months. His proposal allows him to take [Robert] to kindergarten.

8In my view this is a petty dispute. Both proposals appear to be appropriate and in the children’s best interests. There appears to have been no real problems with the regime over the last six months. In my view, the orders sought by [John] are appropriate and orders should be made in those terms.

9The other dispute in relation to the children is whether they should spend a period of two weeks once per year with [John] to go on holidays, or two one week periods as proposed by [Emily]. [John] has already been given leave to take both children on holidays later this month for a period of 10 days. [Ann] is only 2 years 5 months and this will be the first time she has spent a significant period away from [Emily]. [John] says that he does not intend to take the children away again until either the end of this year or the beginning of next. On that basis, [Ann] will be 3 years old and more able to deal with separation from [Emily]. In those circumstances, I am satisfied that [John] should be allowed to take the children away for the purpose of holiday contact for up to two weeks each year.

Property settlement

10The approach to be taken in relation to an application for property settlement pursuant to s 79 of the Family Law Act 1975 is a four step process. Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. Those steps are:

•identify the value of the assets and liabilities of the parties;

•consider the contributions made by the parties within paragraph (a) to (c) of s 79(4);

•consider the s 75(2) factors, together with any matters relevant pursuant to s 79(4)(d)-(g); and

•consider whether the order proposed is just and equitable.

Assets and liabilities

11The parties were able to agree on the value of most of their assets, but were unable to agree on the value of a property registered in [John]’s name at [an address in the suburbs]. This property was bought as a block of land by the parties during the course of the marriage. In 2005 they entered into a contract with [the building company] for a home to be built on that property. This agreement was signed three months before the parties separated. After the parties separated, [Emily] wrote to [the building company] and asked them to suspend the building contract because she did not wish to commit to a situation where she would be bound by a contract when she and [John] were no longer living together. As a result of this action [John] was not able to commence building a home on the land until 2006. In order to effect the construction of the house on the property, [John] increased the mortgage so that it now stands at $270,000. The building of the home has now been completed.

12[Emily] obtained a valuation from [Mr G], a licensed valuer, in relation to the [suburban] property in October 2007. In that valuation he stated that the land value of the property was $375,000, and the land plus the cost of construction to date was $540,000. It was his opinion that the value of the property at that time was $600,000.

13A short time later, when confronted with evidence of a sale in the area, [Mr G] reviewed his valuation. He came to the view that the market value of the land was $360,000. He then valued the house and land at $580,000.

14[John] did not agree with this valuation, and obtained a valuation from [a company]. Unfortunately, this valuation was only provided to [John] and to [Emily]’s solicitors just before trial. In their opinion, the value of the land was $325,000. Neither [John] nor [Emily]’s solicitors called the valuers to be cross-examined as to their valuations.

15It was [John]’s submission that the property [in the suburbs] should only be valued at its block value and the mortgage, as at separation, of $65,000 should be the only debt taken into account in relation to that property. In my opinion, such a position was unrealistic. All the other assets were being valued as at the date of trial. Just because the value of the land and the debt has increased after separation was not a reason to value the land at separation. What was important was to take into account the contributions both parties made to the increase in the value of the property.

16Valuation Partners did not attempt to give a value to the block and improvements as they now stand. On that basis I intend to take into account this property at the valuation given to it by [Mr G] of $580,000. I will also take into account the mortgage at a value of $270,000. The effect of this is that the [suburban] property has a net increase in value, as a result of the improvements placed upon it, of $15,000. I will deal with the contributions to this increase in value later in this judgment.

17After the parties separated, [John] withdrew the sum of $19,875 from the parties’ bank account. [John] says he did this because at that time [Emily] was threatening to leave Australia with the children permanently to reside [overseas]. He says the funds, to the extent of $12,000, were used to pay [the building company]’s part of the costs associated with the building of the property, and $5,000 was paid to his solicitor. This leaves $2,875 unaccounted for. I intend to add back to the asset pool the sum of $7,875, being the $5,000 that were withdrawn to pay legal fees, and the balance which is unaccounted for from those funds.

Assets and liabilities

Assets

[the rental property] $405,000

[the new home] 580,000

[Emily]’s motor vehicle 11,500

[John]’s motor vehicle 1,000

[John]’s AMP shareholding 2,400

[John]’s AMP investment 10,000

Add backs for legal fees and other funds ([John]) 7,875

$1,017,775

Liabilities

Mortgage 270,000

$747,775

18The parties both have superannuation entitlements. It was submitted by [John]’s solicitor that there should be a superannuation splitting order so that the parties retain an equal amount of superannuation. To give effect to this [John]’s C Bus entitlement should be split.

19[Emily] is aged 38 and [John] 34. They are both many years away from being able to access their superannuation entitlements. It is appropriate, in my view, that there be a superannuation split so that they both retain an equal amount of superannuation. The parties’ superannuation entitlements are as follows.

[John]’s C Bus entitlement $56,641

[Emily]’s NHS pension [overseas] 10,000

[Emily]’s Australian superannuation 12,000

$78,641

20[Emily] will retain her [overseas] pension and her Australian superannuation. There should be an order for a split of [John]’s C Bus entitlements in the sum of $17,320 to effect an equal distribution of the superannuation between the parties.

Financial contributions

Initial contributions

21At the time the parties commenced living together [John] was the owner of a property in [ an inner suburb]. He purchased the land in 1998 and built a house on it. The cost of the house and land package was $226,000.

22During the time the parties resided together, up until its sale, the house was rented. Any shortfall in the mortgage payments were met by [John]. While the parties had, until this time, shared expenses, they did not share expenses associated with this property and all financial contributions were made by [John].

23It was conceded that there were some problems with the workmanship during the construction of the property. [Emily] wrote letters to the company from whom [John] bought the house and land package seeking rectification of faulty workmanship. [Emily] also liaised with the leasing agent in relation to problems with the leasing arrangements.

24The [inner suburban] property was sold in June 2001 for $233,000. After the sale of the property, [John] had approximately $84,000 in his bank account around September 2001. Of these funds, $74,350 was used as a deposit to buy the property [in the Southern suburbs].

25At the commencement of cohabitation, in addition to the property [in the inner suburbs], [John] owned a [motor vehicle], AMP shares and an AMP investment account, all still in his possession. These assets now total $13,400.

26At the commencement of cohabitation [Emily] had savings [overseas] of $12,000. She confirmed, in evidence, that these funds were used for living expenses and for travel expenses in 2000 and 2001.

Financial contributions during the course of the marriage

27The parties both lived and worked in Perth from 1999 until early 2000 and shared expenses. They travelled together through Europe from April 2000 until January 2001. While away they generally contributed equally to their expenses. To the extent that they did not, [Emily] requested [John] pay her funds when the parties returned to Australia to ensure his equal contribution to their expenses.

28Upon their return to Australia, both [John] and [Emily] worked. [Emily] was employed [in the medical field], initially casually at [a hospital], but subsequently was made a full-time employee. [Emily] then completed university studies to upgrade her qualifications. When doing this, she worked part-time four days a week, and studied for the balance of the time. This study was completed in order that she could work as [in other areas of the profession]. Thereafter [Emily] worked until a few weeks before [Robert] was born in July 2003.

29[John] worked full-time during the course of the marriage, and continues to do so. Generally, he earned a salary greater than [Emily]. Both he and [Emily]’s salaries were applied towards the accumulation and improvement of their assets and living expenses.

30In October 2001 [John] and [Emily] purchased property [in adjoining suburbs], [one] for $144,000, and at the same time purchased the [other] property for $145,000. The purchase of these two properties was made possible because of the deposit of in excess of $74,000, which came from the sale of [John]’s [inner city] property. [Emily] says she withdrew $3,800 from her personal bank account and contributed this towards the purchase of the [$144,000] property. The [other] property was funded entirely by a mortgage of $150,000.

31Following settlement, the parties moved into the [$144,000] property, and the [other] property was rented. They began to renovate [home] property and spent approximately $30,000 on those renovations. [John] says those funds came from his earnings, together with $6,000, which was paid to him in settlement of a worker’s compensation claim.

Financial contributions post separation

32Post separation [John] has paid for rental accommodation while the [new] property was being built and the mortgage payments on that property, which now amount to $1,900 per month.

33Since separation [Emily] has made no financial contribution to the assets of the parties. The [former rental] property in which she has been residing was not encumbered by a mortgage and she has resided there rent free.

34It is obvious from a recitation of these facts that [John]’s financial contribution to the accumulation of the assets of the parties has been much greater than [Emily]’s.

Non financial contributions

35The parties completed renovations on the [home] property. They were both involved in painting and other works associated with that property.

36[John] was responsible for ensuring that the building contract with [the building company] was put into effect. It was [Emily]’s position that if [John] had paid $10,000 from their funds, they could both have walked away from the contract. Instead of doing this, [John] has insisted the building of the home go ahead. He has incurred further borrowings and met the payments on those borrowings. The net result has been that instead of a loss of $10,000, which would have occurred if the parties walked away from the contract, the property is now worth $15,000 more, after deducting the monies owing for the mortgage.

Contributions to the welfare of the family

37[Emily] has been the primary care-giver for the children since their birth. She has not worked since that time. [John] has worked full-time, but says he has assisted when he can after work and on weekends.

38Since separation [John] has been keen to spend time with the children. At first it was necessary for him to pay for the costs of a Mother Hen supervisor. He now spends time with the children for four days per fortnight. He also pays child support of around $260 per week.

Conclusions on contributions

39[John]’s financial and non-financial contributions are greater than [Emily]’s. In particular, his initial financial contribution of the [inner suburban] was the springboard to enable them to purchase not only the [rental] property, but the [home] as well. The renovations to this property resulted in a significant profit for the parties. In addition, [John]’s effort in going ahead with the building contract has also increased the asset pool. He has retained the other assets he brought into the relationship of his car, AMP shares and AMP investments.

40Since separation [John] has continued to contribute financially by way of mortgage payments on the property being constructed as well as paying rent for his living expenses. He has also contributed to the welfare of the family by paying child support and spending time with the children. [Emily] made a financial contribution during the course of the marriage and has been the primary care-giver for the children both during the marriage and post separation.

41Taking all these matters into account, in my view, there should be an apportionment in favour of [John], taking into account contributions alone, of 60% of the asset pool and 40% to [Emily].

42An apportionment in these terms would result in [John] retaining property valued at $448,665 and [Emily] at $299,110.

Section 75(2) factors

43Both [John] and [Emily] are in good health. [John] is in full-time employment and earns approximately $60,000 per year. He has been in his employment for some time and has security in that employment. He pays around $260 per week by way of child support and will continue to do so.

44[Emily] has previously been employed as a nurse. She retrained during the course of the marriage to enable her to work in the area of general nursing rather than solely paediatric nursing, which was her previously qualification. She anticipates that she will be able to return to the work force when the children are older. It was her case that the shift work involved with [her profession] will not be conducive to her role as the primary care-giver for the children and she may need to obtain some alternate employment. In my view, [Emily] has an earning capacity which she will be able to exercise on a part-time basis once the children return to school. Her earning capacity will not be as great as [John].

45I intend to make orders that the parties’ superannuation is split. This will mean that the parties will be in a similar position in relation to the resources available to them now, later in life.

46As a result of these orders [Emily] will retain the [rental] property.. She has recently mortgaged that property to the extent of $40,000 to meet legal and some living expenses. She will also retain her motor vehicle and household furniture and effects.

47Neither party is residing with another party, however, [Emily] has been in a relationship for a year with a person who is in employment on a fly in, fly out basis.

48In my view, there should be an adjustment to [Emily] to take into account s 75(2) factors, particularly the fact that her earning capacity will be compromised because of the fact she is the primary care-giver for the children and is likely to only work on a part-time basis. In my view, there should be an adjustment taking into account this factor of 10% to [Emily]. This will result in an equal distribution of the parties’ assets.

Just and equitable

49The effect of this order will be as follows:

[John] will retain:

[the new house] $580,000

[his] motor vehicle 1,000

AMP shares 2,400

AMP investment 10,000

Add backs 7,875

$601,275

Less mortgage 270,000

$331,275

50% of assets $373,887

[Emily] to pay to [John] 42,612

$373,887

[Emily] will retain:

[the rental property] 405,000

[her] motor vehicle 11,500

$416,500

Less payment to [John] 42,612

$373,888

50Although [Emily] is currently not working, she does have an earning capacity which she intends to exercise. There are days when the children are in [John]’s care when she could obtain some part-time employment. In my opinion, the distribution of the parties’ assets as set out above is just and equitable in all the circumstances. [Emily] should have the ability to raise the loan which is required to pay out [John].

Proposed orders

In relation to property settlement

1The Respondent, [EMILY], pay to the Applicant, [JOHN], the sum of $42,612 within 30 days of the making of these orders.

2There be final orders in terms of paragraph 7, 8 and 9 of the Minute of Proposed Orders made 14 June 2006 relating to the properties [at the address of the rental property] and [at the address of the new house], in the State of Western Australia.

3Forthwith upon the making of these orders, the Applicant do transfer to the Respondent all of his right, title and interest (if any) in and to the following:

(a) All furniture and chattels currently in the possession of the Respondent;

(b) The motor vehicle in the possession of the Respondent;

(c) Any superannuation entitlements held in the Respondent’s name; and

(d) All bank account held in the Respondent’s name.

4Forthwith upon the making of these orders, the Respondent do transfer to the Applicant all of her right, title and interest (if any) in and to the following:

(a) All furniture and chattels currently in the possession of the Applicant;

(b) The motor vehicle in the possession of the Applicant;

(c) All bank accounts held in the Applicant’s name; and

(d) The Applicant’s AMP and other shares.

5Subject to the consent of the trustees, there be a split of the Applicant’s superannuation fund so that the sum of $17,320 is transferred to the Respondent’s nominated fund.

6The Applicant shall further indemnify the Respondent and keep her forever indemnified against any costs, expenses, claims or other liabilities whatsoever arising from the parties’ joint obligations pursuant to the building contract entered into between the parties and [the building company] (job number xxxx) and the Applicant shall forthwith use his best endeavours and take all necessary steps to have the Respondent released from any further obligations to [the building company] pursuant to that contract.

7The Respondent shall indemnify the Applicant in relation to all rates, taxes, expenses or other outgoings whatsoever pertaining to or arising from her ownership of the [rental] property pursuant to and as from the date of transfer referred to in these orders.

8The proceedings otherwise be dismissed insofar as they relate to property issues between the parties.

In relation to children’s issues

9The parties retain joint responsibility for the welfare of the child [ROBERT] , born [in] July 2003 and [ANN] born [in] October 2005 (“the children”).

10The Applicant spend time with the said children in a 2 weekly cycle as follows:

(a) from Monday 6.00 pm until Wednesday 9.00 am;

(b) from Friday 6.00 pm until Saturday 3.00 pm; and

(c) from Wednesday 6.00 pm until Thursday 3.00 pm.

11The Applicant spend further time with the children, subject to him nor working, as follows:

(a) on the weekend of Father’s Day in any event;

(b) for at least 4 hours on the children’s birthday each year;

(c) for the day on the Applicant’s birthday each year;

(d)from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in 2007 and each alternate year thereafter;

(e)from 2.00 pm Christmas Day until 2.00 pm Boxing Day in 2008 and each alternate year thereafter;

(f)for up to 2 weeks each year for the purposes of holidays provided that the Applicant gives 28 days notice in writing of his intention to exercise such a time.

12The Respondent authorise the children’s school to provide copies of reports and any other relevant information to the Applicant.

13The Respondent provide the Applicant with all relevant medical information in relation to the children.

14The parties use their best endeavours to ensure that the children are not physically disciplined by any third parties.

15The parties be restrained by injunction from removing the children from Western Australia without the written consent of the other party.

16The passports of the children be held by the Registrar of the Family Court of Western Australia.

17Each party be restrained by injunction from denigrating the other party.

I certify that the preceding [50] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate