L & L
[2007] FMCAfam 768
•5 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & L | [2007] FMCAfam 768 |
| FAMILY LAW – Alteration of property interests – contribution – future needs – parenting orders. |
| Family Law Act 1975, s. 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79 |
| Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 |
| Applicant: | L |
| Respondent: | L |
| File Number: | SYC1379 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 21 August 2007 |
| Date of Last Submission: | 21 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stuart |
| Solicitors for the Applicant: | Beverley Foster & Associates |
| Counsel for the Respondent: | Mr Kasep |
| Solicitors for the Respondent: | Otto Stichter & Associates |
ORDERS
The children of the marriage B born June 1998 and J born June 2001 live with the Wife.
The parties shall have equal shared parental responsibility.
The parties shall have sole responsibility for making day to day decisions regarding the said children’s care, welfare and development during such periods as the children are in their respective care.
That the said children shall spend time and communicate with the Husband at such times as mutually agreed between the parties and in default of agreement as follows:
(a)From 6.00pm Friday until 8.30am the following Monday each alternate week and the husband is to collect the children from the wife’s home at the commencement of time and to return the children to their school at the conclusion of time referred to in this paragraph;
(b)From 6.00pm on the Thursday after the time referred to in 1(a) above until 8.30am the following morning and the husband is to collect the children from the wife’s home at the commencement of time and to return the children to the wife’s home at the conclusion of time referred to in this paragraph;
(c)From 6.00pm on the Tuesday of the week following that week which is referred to in 1(a) and 1(b) above until 8.30am the following morning and the husband is to collect the children from the wife’s home at the commencement of time and to return the children to their school at the conclusion of time referred to in this paragraph;
(d)During each school vacation period (other than the December-January school vacation period) as agreed between the parties and failing agreement for the first week of such school vacation period.
(e)For the last two weeks during each of the December-January school vacation period.
(f)On the birthdays of the children as agreed between the parties and failing agreement from 6.00pm to 8.00pm if such birthday falls on a school day and from 10.00am to 2.00pm if such birthday does not fall on a school day.
(g)Each Fathers Day from 10.30am to 2.30pm.
(h)Commencing 2008 from 6.00pm Christmas Eve to 4.00pm Christmas Day in even numbered years and commencing in 2007 from 4.00pm Christmas Day to 4.00pm Boxing Day in odd numbered years.
(i)In the event Easter does not fall during a school vacation period, from 4.00pm the Thursday preceding Good Friday to 8.00pm Easter Monday each alternate year commencing 2008.
(j)That the husband collect the children from the wife’s home at the commencement of time referred to in paragraphs 4 (d)-(i) and return the children thereto at the conclusion of time referred to therein.
That the children shall have reasonable telephone communication with the parent with whom the children are not then living or spending time with.
That the time to be spent by the children with the Husband pursuant to Order 4 herein shall be suspended:
(a)On Mother’s Day each year from 10.30am to 2.30pm.
(b)On the birthdays of the children as agreed between the parties and failing agreement from 6.00pm to 8.00pm if such birthday falls on a school day and from 10.00am to 2.00pm if such birthday does not fall on a school day.
Each party advise the other as soon as possible of any serious illness or injury affecting the children during those periods the children are in that parent’s care.
Each party be restrained from making any disparaging, unfavourable, critical, disapproving, judgmental, or derogatory remarks about the other to the children.
Each party shall be entitled to obtain for the children’s school, sporting clubs and any other associations with which the children are involved from time to time, particulars of the children’s welfare and progress, school or other reports, photographs, details of forthcoming activities and functions and all such other information provided by the children’s school, sporting clubs or other such associations.
Each party shall be at liberty to attend school functions and any other activities in which the children participate and to which the parents are invited.
Each party shall notify the other of any pending school functions and events to which parents are invited or which parents are able to attend, as comes to the knowledge or attention of either parent.
Each party shall notify the other of any intended or proposed change of address and the new address when known.
That the Wife shall within two (2) months of the date of these Orders pay to the Husband the sum of $224,122.
Simultaneous with the compliance by the Wife with Order 13 hereof the Husband shall do all such things and sign all such deeds, documents and instruments as may be necessary to transfer to the Wife all his right title and interest in and to the former matrimonial home situate at and known as 9/15 M Street, D in the State of NSW (“the property”) and the Wife shall thereafter pay and bear as and when they fall due, land rates, water rates, strata levies and all other outgoings, relating to the property, and the Wife shall indemnify the Husband in relation thereto.
That in the event that the Wife shall fail, refuse and/or neglect to pay to the Husband the sum as referred to in Order 13 herein the Husband and the Wife shall forthwith do all such things and sign all such deeds, documents and instruments as may be necessary to list for sale and sell the property by private treaty at a price agreed between the parties and in default of agreement for a period of in excess of fourteen (14) days, at a price fixed to be a fair market value of the property by a valuer jointly appointed by the parties or in default of agreement by them, appointed on the application of either of them by the President of the New South Wales Division of the Australian Property Institute, or its successor acting as an expert and not as an arbitrator. Upon completion of the said sale, the parties shall, after adjustment for municipal council rates, strata levies and metropolitan water sewerage and drainage board rates, distribute the proceeds of sale as follows:-
(a)In payment of real estate agent’s commission and legal costs on sale.
(b)In payment of any fees due for the nomination of a valuer as hereinbefore provided.
(c)In payment to the Husband of the sum of 37% of the balance.
(d)In payment of the then balance to the Wife.
That the Husband shall within 14 days of the date of these Orders do all such things and sign all such deeds, documents and instruments as may be necessary to transfer all his right, title and interest in and to the motor vehicle Holden Astra to the Wife.
That the Wife shall within 14 days of the date of these Orders do all such things and sign all such deeds, documents and instruments as may be necessary to transfer all her right, title and interest in and to the motor vehicle Holden Commodore to the Husband.
That the Husband be declared to be the sole legal and beneficial owner of all his right, title and interest in and to:-
(a)All cash at bank and other moneys invested by him.
(b)All personal effects and furniture in his possession .
(c)All shares in his name.
(d)All his right, title and interest in respect of his superannuation entitlements.
(e)The motor vehicle Holden Commodore.
That the Wife be declared to be the sole legal and beneficial owner of all her right, title and interest in and to:-
(a)All cash at bank and other moneys invested by her.
(b)All personal effects and furniture in her possession.
(c)All shares in her name.
(d)All her right, title and interest in respect of her superannuation entitlements.
(e)The inheritance received from her late Uncle’s estate.
(f)The motor vehicle Holden Astra.
That the parties shall within 14 days of the date of these Orders do all such things and sign all such deeds, documents and instruments as may be necessary to close any and all joint savings accounts and any credit balance in relation to such accounts shall be divided equally between the parties.
In the event of either parties’ failure to sign any necessary documents or instruments or to do any acts required or contemplated by these Orders to be done with such failure continuing for 14 days, then the Registrar of the Family Court of Australia in pursuance of the powers conferred on him or her under Section 106A of the Family Law Act, 1975, as amended, shall have the power to execute any document or instruments in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC1379 of 2007
| L |
Applicant
And
| L |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to an application for parenting orders, together with an application for alteration of property interests. The applicant is FL, and the respondent is her husband, RL. She is 41, and he is 40 years old. They married on 30 September 1995 and separated on 19 August 2005, after a period of cohabitation of just under 10 years. There are two children of the marriage, B, now nine years old, and J, now six years old.
Background
Shortly after separation, the husband moved out of the former matrimonial home at D. He moved in to live with his parents. The wife and the children remained in occupation of the home and are there at this time. From that time until December 2006 the father spent each alternate weekend with the children. However, from December 2006 the parties agreed that the father would spend five days each fortnight with the children. Accordingly, at the time of the hearing, the pattern of shared care relating to the children involved the children spending time with the father from 6 pm Friday until 8.30 pm Monday, each alternate weekend, and then one Thursday night per fortnight, and one Tuesday night per fortnight. The wife's application was for parenting orders that, in essence, confirms the existing arrangement. The father's application for parenting orders, as at the time of the commencement of the hearing, was for equal time, on a week on‑week off basis.
The wife's application for property settlement involved her retaining the former matrimonial home at D, but paying to the husband a sum of $226,705. The wife proposed that she retain the Holden Astra motor vehicle, and the husband retain the Holden Commodore motor vehicle. In relation to the application for alteration of property interests, the only significant difference between the orders sought by the husband, and the wife, is that he sought the payment of a larger amount, namely, $303,575. It was agreed between the parties that an inheritance that the wife received late during the marriage, and currently having a value of $136,750.16 will be, for all practical purposes, excluded from consideration, except for s.75(2) purposes. It was agreed that the husband had not made a contribution to this inheritance. The parties agreed that each of their respective superannuation entitlements should be left where they are. The parties agreed that the wife should have the option of retaining the former matrimonial home for occupation by herself and the children, should she be able to afford the payment to the husband. There were some minor issues in relation to various personal items.
The parties were able to agree about the current pool of assets, and the value to be attributed to these assets, and I will set that out below.
The wife is a part‑time primary schoolteacher, who currently earns $1265 per week. The husband is an information analyst, currently earning $1857 per week. Their respective financial circumstances are set out in the financial statements they filed in these proceedings, and for all practical purposes, there is no issue about disclosure.
Both the husband and the wife filed affidavits, and gave evidence at the hearing. The wife had one other witness, CP, who had filed an affidavit in these proceedings. The only other evidence was given by Mr H, the regulation 8 Family Consultant who had prepared the Family Report dated 13 August 2007. Mr H gave evidence by telephone. His report was also in evidence.
Both parties were competently represented by counsel. Mr Stewart appeared for the applicant wife, and Mr Kasep appeared for the respondent father.
The Issues
Dealing first with the parenting orders, the first issue I must determine is which of the competing proposals for shared care of the children is in their best interests? Indeed, as I am not bound by the proposals of the parties, the issue might be better expressed as what shared care arrangement for the children is in their best interests? The mother proposed the existing five day per fortnight regime. The father proposed an equal time regime, i.e. seven days out of each fortnight. In a theoretical sense, the choices available included five, six or seven days each fortnight, though there are a very large number of possible permutations within these broad parameters. As it was common ground that the presumption of equal shared parental responsibility applies to this case, from a legislative perspective I am required to consider whether equal time, or substantial or significant time, is in the best interests of the children, and reasonably practicable. As the evidence emerged, however, a very specific consideration became the central issue in this case. That was whether the parents in this case were able to demonstrate or attain a level of co-operation and communication as between them that would be necessary to underpin a shared‑care arrangement equivalent to equal time.
In relation to the application for alteration of property interests, as indicated above, there was no issue about identifying and valuing the pool of assets. Contribution was an issue, however. The wife asserted that she had made a greater contribution at the commencement of the relationship. The husband asserted that his contribution was about equal. It was necessary for me to make findings about the assets of the parties at the commencement of their marriage. The wife asserted that she made a greater contribution as homemaker and parent during the marriage, and this should result in a higher assessment of contribution for her. The husband asserted that he had made a greater financial contribution during the marriage, and that the final assessment of contribution should be equal. The wife also asserted that she had made a greater post‑separation contribution because she continued to care for the children. This argument was not advanced on her behalf with much vigour and, in view of the fact that she and the children continued to have the occupation of the former matrimonial home, it would have been a very difficult argument to maintain.
In relation to future needs under s.75(2), the husband asserted that there would be no adjustment, particularly having regard to the inheritance received by the wife, and the favourable financial circumstances this creates for her. On behalf of the wife, however, it was asserted that if I found in her favour in terms of greater contribution at commencement and during the marriage, there was probably no adjustment under s.75(2). However, if I found the contribution was equal, then a s.75(2) adjustment was in order, notwithstanding the inheritance, because of her caring responsibility for the children, and the disparity in the earning capacity of the parties, in the long run.
The applicable law- parenting
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration; s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) 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.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(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.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In 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, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(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);
(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;
(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;
(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;
(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;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of Time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
The applicable law- property
The preferred approach to the determination of an application under s. 79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
One of the legal issues that arises is whether I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is, the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole. My discretion in this regard should be exercised having regard to the facts of this case.
The Family Report
The Family Consultant met with the husband, the wife and the children on 24 July 2007. He interviewed the parents, and the children, and conducted an informal observation of the children with their parents in the clinic waiting area. The Family Consultant did not have available to him the affidavits filed by the parties at the time of preparing his report. However, it was possible to send the affidavits to him before he gave evidence.
The recommendations are contained at paragraphs 35 ‑ 37 of the report, which I set out in full: ‑
It is recommended that parents continue to have shared parental responsibility.
It is recommended that the time the children spend with their father be gradually extended to include a further two days. This to be done by an extension of one day until the end of 2007, then a further day from the commencement of 2008.
It is recommended that both parties attend counselling to address their communication difficulties, with particular reference regarding issues involving children. In particular, issues relating to telephone calls and religious attendance.
The Family Consultant identified that the issues were: the amount of time the children should spend with each of their parents, and the views of the children. He also identified during the assessment the level of conflict and communication difficulties between the parents, and the impact of these difficulties on the current arrangements as well as the possible implications for any future parenting arrangements. He also identified as an issue the extent to which the children feel able to express their attachments to either parent, and the impact this has on their relationship with the other parent.
The Family Consultant's record of his interview with the mother presents a picture of a caring mother who was frustrated by the father's proposal for an increase in the amount of time he spent with the children. The report records the mother's perception that the father was primarily motivated by financial issues in seeking additional time with the children. She was firmly of the view that the children were scared of their father and did not wish to spend extended time with him. She was critical of his lack of parenting during the marriage, and the high level of involvement in parenting of the paternal grandmother. She described the father as "controlling and overbearing" and also "unpredictable". She reported to the Family Consultant her view that the children were "pleased and relieved" when the father left the family home because "they do not like him very much". The mother had particular concerns about B spending time with her father. This is only a summary of the observations contained at paragraphs10 ‑ 16 of the Family Report. I observed that the mother clearly has a negative view of the father, which was expressed to the Family Consultant. This is in somewhat of a stark contrast to her affidavit sworn less than a week after the interview in which this negative view is barely noticeable.
The Family Report also records the interview with the father. He is described as a rather stressed father who believes the mother is attempting to decrease the influence he has in the children's lives, and therefore does not facilitate his relationship with them. The father conceded that the mother had a more concentrated input into the parenting of the children before separation and that he was not much involved with them during the week. The father has, however, undertaken a parenting‑after‑separation educational program since separation and feels that he has improved parenting skills. The father acknowledged to the Family Consultant that the children were most likely fearful of any further change to the parenting arrangements. Nonetheless, he stated he wanted to increase the time he spends with the children because "I want to stand on an equal basis with FL". His view was that the extension of the time spent with children, from two nights to five, had resulted in a closer relationship, and his hope was that a further extension might continue this process. The father was reported as being quite critical of what he perceived to be the mother's control of his relationship with the children, and exposing them to her views and perceptions of him. The father acknowledged that communication between the parents was very poor, but he was hopeful that this might improve once the parents had reached a property settlement. He indicated to the Family Consultant that it was his intention to try to reside in the same geographical area as the children currently live in, so as to not interrupt their education or social sporting contacts. The above is only a summary of the observations that are set out in full at paragraphs 17 ‑ 23 of the Family Report.
The Family Consultant's observations of the children led him to note that both children showed a stronger attachment to their mother. B was negative about her father, but J was less negative. B apparently no longer finds the current parenting arrangements confusing, but used to. Nonetheless, the Family Consultant records that she stated she preferred the previous spending time arrangements with her father on a fortnightly weekend basis, and otherwise preferred to be with her mother. She was unable to give reasons for this. J also stated he did not want to extend the amount of time he spent with his father, but was unable to articulate a clear reason for it.
In his evaluation, the Family Consultant acknowledged the strong attachment of the children to their mother, and their views about not wanting the time with their father extended. He thought, however, that the reasons provided by the children did seem somewhat superficial. In relation to the stronger attachment to their mother, the Family Consultant observed that that was hardly surprising having regard to the history of parenting provided by both parents. He then states at paragraph 27: ‑
Accordingly, while B and J both indicated that they would prefer no change to the current parenting arrangements, or even, for B, a return to the previous shorter periods of time with her father, there was no indication as to why a shared parenting arrangement, as proposed by Mr L, is not in the children's best interests, provided the parents also address their own communication difficulties.
At paragraph 29 of the report, the Family Consultant once again records the importance of the parents' ability to communicate with one another about issues relevant to the children, in the context of a shared parenting arrangement. He states: ‑
Another important aspect in considering a shared parenting arrangement, however, is the parents' ability to communicate with one another about issues relevant to the children. Both parents would appear to acknowledge that this is an area which would need to be addressed. Mr L is hopeful that, following the property settlement, this situation might improve, but there is no guarantee of this, and thus there is a risk that the children's needs might inadvertently be overlooked by the parents.
In other words, for shared parenting to work for this family, the level of communication needs to improve. If it does not improve, and if shared parenting is implemented, there was the risk that the children's needs might be overlooked.
The extent of the difficulties that exist between the parents is reflect in paragraph 31 of the Family Report: ‑
It is noted that both parents allege the other parent was controlling of the other parent, with regards to each other and their relationships with the children. It was not possible to assess which parent, if any, was correct in this regard, and the children certainly gave no clear indication of this.
There is also reference in the report to the allegations that the parent make of the other about being uncooperative, particularly in relation to telephone calls. He also referred to the friction and distrust between the parents.
I record the fact that I had some preliminary difficulties with the report. For example, when the report referred to a shared parenting arrangement, specifically as proposed by the father, there seemed little recognition that, for all practical purposes, a shared parenting arrangement already existed in that the father had the children five out of 14 days a fortnight. I would have appreciated a more detailed assessment of how the children are coping with the existing shared parenting arrangement, and based on those observations, an assessment of how they would cope with another shared parenting arrangement that might involve more time with their father. I was also surprised by the recommendations. A recommendation for equal time, even when slowly implemented over a period of months, seems somewhat disproportionate and inconsistent with the nature and the importance of the issues raised by the Family Consultant about the children's attachments to their mother, the views expressed by them, and the clearly problematic relationship that exists between the parents.
By the time that the Family Consultant gave oral evidence, he had had the opportunity to read the affidavits relied on by the parties. When examined by Mr Stewart, counsel for the mother, he agreed that there were high levels of unresolved feelings in relation to the children as between the parents. The Family Consultant described as "extremely important" the ability to communicate between parents if there is to be a seven day on/seven day off shared care arrangement. He agreed that the parties have a "long way to go". The Family Consultant presented a picture of two children who were very much caught up in the conflict of their parents ‑ literally "caught in the middle". At several times during the examination by Mr Stewart, the Family Consultant repeated the importance of the parents being able to communicate with each other, in the context of a shared parenting arrangement.
The Family Consultant was also examined by Mr Kasep, counsel for the father. The Family Consultant gave evidence that counselling might assist the parents to deal with their communication difficulties. It was also possible that the end of the litigation might resolve some of these difficulties. He did acknowledge the difficulties when both parents portray the other as controlling and dominating. Nonetheless, he stood by his recommendations though noting the concern in relation to the communication difficulties. The Family Consultant felt that time would allow for some of these issues to be dealt with and that a seven day arrangement would reduce the movement between the households and some of the stresses on the family. He suggested the parties attend a keep‑in‑contact program, as well as undertake individual counselling before the change in parenting arrangements.
I had the opportunity to ask the Family Consultant some questions. He gave evidence that the children needed to get the message that one parent was supporting their relationship with the other parent, but that was not happening at the moment, thus leading to the children feeling caught in the middle. This might result in the children not feeling heard, and behavioural problems. These were the risks, the Family Consultant explained, of moving to a new shared care arrangements if the parent are unable to resolve these problems. The corresponding potential benefit to the children, however, is that they develop a better relationship with their father ‑ that is, a more consolidated relationship, or a "higher level" one.
At the end of the evidence of the Family Consultant, I concluded that the recommendations were clearly predicated on the basis that the parents were able to address the communication difficulties, and the conflict they were experiencing. If I could not be satisfied about that, I could not be confident that implementing the recommendations contained in the Family Report would be in the best interests of the children.
Mother's evidence
I granted leave for the mother to adduce some brief evidence‑in‑chief, primarily in relation to the recommendations contained in the Family Report. She gave evidence about the continuing concerns she had about the children spending more time with their father, notwithstanding the recommendations of the Family Consultant. She expressed concern about not knowing where the father was going to live; the stronger emotional bond that the children have with her, as compared to their father; the views that the children have expressed to her about not wanting to spend more time with their father; her concerns about the father's attitude towards parenting based on what she observed during the marriage. In other words, the mother maintained all of the concerns in respect of which she gave evidence in her primary affidavit, notwithstanding the Family Report, and its recommendations.
During the mother's cross‑examination by Mr Kasep, a number of things became apparent. The concerns that the mother expressed were genuinely held by her. I was left in no doubt that, notwithstanding any negative attitudes she might have towards the father, she was encouraging the children to love their father and spend time with him. She was concerned about living arrangements between the father and the children when she did not have the ready availability of assistance from the father's mother, as he currently does. She clearly feels now, and appears to have always felt that she was a better parent, compared to the father. She denied that she had, in effect, shut the father out from being a parent. She was, however, firmly of the view that during the marriage she did most of the parenting and the home making. She gave convincing evidence about her attempts to deal with the children's reluctance to spend time with the father.
She was reluctant to accept that the father had changed since separation and was of the view that his past behaviour as a parent was indicative of his future behaviour. She readily agreed that there were difficulties in communication with the husband. She expressed the view that the difficulties in communication were attributable to different communication styles. She gave the example of how the father and herself had a different approach to dealing with hair lice on one occasion. She wanted to use a particular type of comb, but he wanted to use shampoo. The mother felt the father was being uncooperative by not adopting her suggestion to use the comb. Indeed, her evidence was that the father seemed determined to do it his own way. She agreed with Mr Kasep, however, that both solutions to the hair lice problem achieve the same outcome. Nonetheless, she insisted that their different approach represented an attitude by the father that he will do what he wants to do. Nonetheless, she agrees that she compromised and simply let him do what he wants to do when the children are in his care. She later agreed that the father had said to her that he had called the children's school to seek advice about how to deal with the hair lice, and they had told him to use both the comb and the shampoo. She did point out, however, that the comb she was using was a special type of comb that was powered by a battery and treated the lice by using the electric current generated by the battery. She agreed in cross‑examination that she disagreed with the advice that he had been given by the school, and preferred to do what a friend had told her about how best to use this new form of battery‑operated head lice comb. The mother was specifically asked whether she recalled what she said to the husband in relation to the advice that the school had given to him. She said that she did not recall. It was put to her that she said words to the effect: "As a mother, I know better than the school". Her response was that she did not remember saying that. This was, I record, a very strange response for the mother. It is the only, if not one of the few, examples of the mother saying that she did not remember something. It was one of the few points in her evidence that I would describe her as being hesitant, and equivocal. She did not deny that she made that statement to the father ‑ she said that she did not remember saying it. The rest of the mother's evidence is replete with examples of very firm statements of yes, no or that she was unsure. I formed the view that her answer to this question was evasive. It is possible that the mother did say words to the effect that she knew better than the school about how to deal with her children's head lice.
Unfortunately for the children, the mother's evidence about how the parents dealt with head lice provides a sad insight into the extent of the communication and cooperation problems that exist between them. They could not agree on something as simple as dealing with the children's head lice. The mother seemed convinced that the father's refusal to accept her advice was a reflection of his attitude to do things his way. She seemed incapable of accepting that the father's suggestion might achieve the same outcome. Finally, once an impasse was reached, her compromise was that when the children are in his care, he decides what to do. But therein lies the problem, in the long term, of course. In the absence of the levels of communication and cooperation to which the Family Consultant adverted, I am left with deep concerns about how the mother and father will deal with far more serious issues relating their children.
Father's evidence
Unlike the mother's evidence which was, for the most part, clear and confident, the father gave evidence slowly, ponderously, and at times left me wondering whether his responses were credible. The father was specifically given the opportunity to review the evidence contained in his primary affidavit in view of the Family Report, and the evidence given by the Family Consultant. Mr Stewart, counsel for the mother, specifically gave him the opportunity to change his evidence, in any way. Indeed, I insisted that there be a short ajournment for enable the father to review his affidavit before he answered Mr Stewart's questions. The father's affidavit contained many examples of evidence where he was critical, at times highly critical, of the mother. Despite being given the opportunity to withdraw this, he only changed his evidence minimally. However, the father gave evidence that he would change his approach to implementing more time with the children, to reflect a more gradual increase, even an increase more conservative than that suggested by the Family Consultant. It was also clear that he was prepared to consider an increase in time to six days, consisting of Friday afternoon to Monday morning in week one, and Monday to Tuesday in week two.
As I indicated above, one of the key issues to emerge was the extent to which the parents could cooperate and communicate with each other, such as to support an equal time arrangements, or even an increase in the children's time with the father. Regrettably, the father's evidence left me with as many concerns about this issue, as did the mother's evidence for the reasons set out above. An example of this was the father's insistence that the mother return to him, as part of the property settlement, the washing machine in the home. He agreed that it is the only washing machine, and it is the one that is used by the mother and the children. His evidence was that he was living with his parents. I assume that his parents have a washing machine. I infer that the husband did not need the washing machine for the purposes of washing his clothes. He insisted, however, that receiving the washing machine would result in a fairer settlement and that he was not asking for much. When he was finally confronted in cross‑examination with the proposition that requesting the washing machine in the circumstances of this case was hardly an example of his ability to cooperate with the wife, he finally conceded that she could have the washing machine. For the father, the washing machine was simply a tangible piece of personal property. Regrettably, for the children, it represents a symbolic example of the father's inability to cooperate with the mother personally in a way that provided a benefit to the children.
The father's lack of insight in relation to the existence and the extent of the problem of lack of communication and cooperation was further demonstrated in questions that Mr Stewart asked him about the Family Report. Mr Stewart put it to the father that the Family Consultant suggested that communication and cooperation between the parents was essential if shared parenting was to succeed. The father insisted that communication and cooperation was preferential, not essential, and insisted that it was his desire to do so. He later agreed that it was essential, rather than just being preferential. The father then tried to split hairs about the importance of communication by suggesting that there were degrees of communication. He was trying to assert, I believe, that as between the mother and himself there was some communication. Indeed, he referred to their being poor communication, but reiterated a desire to improve that for the sake of the children. He agreed with Mr Stewart that the level of communication as between the mother and himself was not such where they are able to get their respective messages across to each other, to talk to each other, to listen to each other and to understand what the other is saying. The father steadfastly refused to acknowledge, however, that that level of communication was needed to be attained before there could be more time. The father agreed that inherent in his own modified proposal to delay the time for implementing equal shared care that it gave the mother and himself the opportunity to work on their communication issues. The father agreed that there had to be "give and take" in order for their to be cooperation between the parents. The washing machine example does not demonstrate the cooperation necessary, however.
There were moments when the father did demonstrate some promising insight. For example, he indicated that, having considered the matter, if he could change his affidavit, he would remove some of the negative comments about the mother, and he acknowledged that he should build her up, not put her down. However, this brief moment of promise was quite seriously undermined when the father agreed in cross‑examination that he knew that he should be building the mother up, in the children's eyes, and not putting her down as at the time he undertook a parenting after separation course. This course was completed well before he swore his affidavit, so he agreed that he said inappropriate things knowing that they were inappropriate. Indeed, the father was firmly of the view that the language he had used when talking about the mother was restrained.
In his cross‑examination he reiterated his view that the mother is overbearing, she sees things in a certain way, and does not have much scope to change her views. It is clear that the father feels that whenever he talks to the mother, she is opposed to anything that he puts forward. To use his words, she is "determined to do things her way". I find that there is probably some basis to this, but findings about precisely which parent contributed to what I consider to be chronic difficulties in communicating and cooperating, are secondary to the issue of whether they can overcome these problems in order to sustain an enhanced shared parenting arrangement. The evidence of the father made it progressively more difficult for me to accept that there is a reasonable prospect, in the near to medium future, for these problems to be overcome.
The father's cross‑examination confirmed the mother's assertion that his involvement with the children during the marriage was limited. Even though the father denied this, the example that he gave in cross‑examination of not sitting at the dinner table with the children whilst they were eating, merely because his meal had not yet been prepared, was yet another revealing insight about the extent of the father's parenting during the marriage. And yet the father's evidence does demonstrate a significant change since separation. To use his words, the "picture is vastly different". The criticism about parenting during the marriage is not the main issue in this case. It does tend to confirm, however, that the mother's assessments of the father are often correct.
Submissions about parenting orders
On behalf of the mother, Mr Stewart's very strong submission was that the father's evidence showed that future cooperation and communication was highly problematic. As the Family Consultant's view about a gradual increase to equal time was clearly predicated on the parents' ability to communicate and cooperate, the Court should not act on the recommendations contained in the Family Report. Mr Stewart's submission was that I should not take chances with the children and that I just could not be satisfied about the husband's capacity to manage a shared care arrangement consistent with the best interests of the children. The submission was that even if I was satisfied that the father was willing to change, he simply lacked the ability to do so as was apparent from his evidence. Mr Stewart submitted that I should place considerable weight on the views expressed by the children, but particularly B whose strong views against spending more time with her father were recorded in the Family Report. He emphasised the practical difficulty that would be involved in implementing an equal shared care arrangement in view of the manifest communication and cooperation problems. He urged on me that the order that was least likely to lead to further proceedings was an order that basically codifies the current arrangement.
Mr Kasep's submissions on behalf of the father noted that communication difficulties have existed in the past, continue to exist now, and will probably continue into the future because of the very nature of post‑separation parenting. He stressed that most parents deal with it and that I could be satisfied that the husband will do whatever it takes. Mr Kasep submitted that communication difficulties should not be allowed to trump a shared parenting arrangement, including equal time, when there are so many other s.60CC considerations, both primary and additional, that point to a result of equal time. The father's proposal, it was submitted, actually provided the opportunity for greater stability for the children, with fewer transitions between the households. The views purportedly expressed by the children received little weight from the Family Consultant, and should likewise receive little weight in the Court's decision.
Discussion
This is not an easy matter to decide. Despite the enormous communication and cooperation issues that exist as between the father and the mother I am satisfy they both dearly love their children, and the children love them. I believe that one of the Family Consultant's observations in the Family Report is entirely apposite for this family ‑ the children do not feel comfortable about loving one parent, when with the other. This is the terrible product of the conflict between the parents. I find that not only are there significant communication and cooperation problems as between the parents, but neither really lacks the capacity to change in the short to medium term. I find that they both contribute to the communication and cooperation problems, though not necessarily equally.
Notwithstanding these significant problems, the fact is they have already agreed to a shared care arrangement that enables the children do spend five nights out of 14 with their father. In my opinion, the current arrangement is not an ideal one. The children spend three nights with their father, then one night, then another night, spread over two weeks. Nonetheless, the evidence indicates that the children have now accepted this as part of their routine. If I were satisfied that the children were coping with the existing shared care arrangement, then perhaps it is not a quantum leap in logic, or a blind leap of faith, to think that they could cope with a mere additional two nights a fortnight? The difficulty is that I am not entirely satisfied that the children are coping with the current arrangement and it may well be, for example, that some of the disconcerting behaviour of the children referred to in the Family Report is attributable not just to the current conflict between their parents but to a shared care arrangements that represented a compromise rather than a cooperative, child‑focussed outcome that occurred because of good communication between the parents, instead of despite the lack of the same. But even if I were satisfied that the current shared care arrangement was the optimal one for the children, I certainly would not enhance that shared care arrangement and elevate it to equal time simply because there was no reason not to do so. That is not how Part VII of the Family Law Act operates. I need to be positively satisfied that a change in the current arrangements is in the best interests of the children. Whilst in a legal sense that involves a detailed consideration of the primary and additional considerations referred to in s.60CC of the Act, a much simpler form of analysis is to examine the potential benefits to the children of an increase in time, compared to the potential risks or disadvantages to them and then act on where the balance lies. Whilst I do not entirely ignore the needs and interests of parents, I will certainly not elevate those above the needs and interests of the children. It was clear from the father's case and evidence, at times, that he wanted equal time so that he could achieve the status of equal parent. But not only is that fundamentally misconceived, because equal time does not necessarily mean equal status as a parent, but it focuses on parents and not on the children. I formed the impression that, for the father, the quest for equal time was more about elevating his status and meeting his needs, than it was meeting the needs of the children. Even if there are times when a father cannot put the needs of his children above his own, having regard to the provisions of Part VII of the Family Law Act, it is hard to see a time when this Court will place the needs of parents above those of children. In any event, the chronic problems of communication and cooperation that exist between these parents remains as a significant obstacle to an enhancement of the existing shared parenting arrangement. As the children grow older, I am left in no doubt that the need for this communication and cooperation will increase, but I have a serious doubts as to whether the capacity and ability of both parents to communicate and cooperate will be able to increase in proportion to the need.
Under the circumstances, the best outcome for the children is for the current shared parenting regime to be reflected in an order of this Court.
Alteration of property interests
At the conclusion of the hearing, I was provided with an agreed schedule of assets and their values. That agreed list is reproduced below:
Matrimonial Property
Matrimonial Home: $600,000.00
Shares ) $26,955.95
Shares $11,041.03
Holden Astra $12,200.00
Holden Commodore $18,300.00
Superannuation (wife) $120,473.00
Superannuation (husband) $104,012.51
Bicycles $1,000.00
Savings (husband) $31,356.26
Savings (wife) $9,603.93
Inheritance (wife) 136,750.16
Other savings (wife) $4,091.00
Total: $1,075784.64
As indicated above the parties agreed that for the purposes of the hearing, and the alteration of property interests, the wife's inheritance should be excluded from the pool and taken into account only for s.75(2) purposes. In addition, it was agreed that the superannuation should be excluded and each retain their respective superannuation entitlements. I am satisfied that it is just and equitable to do so.
An issue arose about whether the wife had made a greater contribution at the commencement of the relationship, as are result of having superior savings as compared to the husband. Exhibit A2 provides the evidence, which I accept, that at the time of marriage, the wife had savings totalling $63,673.13. In his evidence, the father asserts that he had savings of about $65,000. He was unable to provide documentary evidence to support this assertion. As this was raised as an issue during the first day of the hearing, if the husband had documentary evidence available to him, he could have produced it on the second day of the hearing. Indeed, this is precisely what the wife did. The husband was unable to do so, as he did not have the documents. Notwithstanding this, during the wife's cross‑examination, in the face of an assertion that the husband had about $64,000 in savings, her response was that she could not be sure, that she did not think so, but she was sure that she had more money than him. I think it is more likely than not that their savings at cohabitation were approximately equal. There was no dispute between the parties that within nine months of their marriage they had purchased the former matrimonial home at D for about $275,000, using a loan of about $143,000. They also agree that the balance was provided from savings. There were, no doubt, expenses attributable to the purchase including stamp duty. Of course, it is possible that they saved some money between the marriage and the purchase. On balance, though, I think the more likely outcome is that their savings at marriage were approximately equal, and I so find. Even if I am wrong and, for example, the wife had marginally more savings than the husband, having regard to the length of the marriage, it would not change my finding.
I also accept that both the husband and the wife had various items of a personal nature, some superannuation and motor vehicles, but none of this detracts from my finding that the assets they brought into this marriage were approximately equal. Accordingly, the wife's argument for greater contribution at the commencement of the marriage fails.
The wife argued that she made a greater contribution during the marriage based on her contribution as homemaker and parent. Indeed, Mr Stewart made the submission that this contribution was extraordinary. In his evidence, the father readily agreed that the mother made a greater contribution as homemaker and parent. He asserted, however, that he made some contribution. The wife acknowledged in her evidence, however, that the husband made a greater financial contribution during the marriage as a result of working full time and applying his income for the benefit of the family. The wife makes no criticism of the husband's financial contribution, but her counsel strongly submitted that the evidence indicated a minimal contribution by the husband outside of his working hours. By contrast, it was submitted, the wife was working either full time or part time, and after the children were born bore the exclusive or near exclusive responsibility for attending to the needs of the children and the household. The husband's evidence does satisfy me that his role in home making and parenting was substantially smaller than that of the wife. But does this necessarily result in a greater assessment of contribution on the part of the wife when all of the diverse contributions of both parties during the marriage are viewed globally?
I am troubled by the wife's assertion that she should receive recognition for greater contribution during the marriage. As a general proposition, in alteration of property interests under the Family Law Act, the value of homemaker contributions is not estimated intrinsically but rather is often assessed in a comparative exercise with the financial contributions of the other spouse. This approach often results in a conclusion of equality in terms of contribution, at the end of a medium to long marriage. It recognises that diverse forms of contribution are assessed as having the same weight. The risk of this broad brush approach is that it masks inequality and creates inequity. But the risk of adopting the alternate approach, and seeking to value contribution intrinsically, is equally problematic. Assessments of the quality of contribution are fraught with difficulty and invites subjective assessments that potentially vary enormously from judicial officer to judicial officer. The problem with that approach is, in fact, exemplified in this case. Mr Stewart both opened and closed the wife's case on the basis that there should be a 10 per cent adjustment in her favour to reflect a greater financial contribution at the commencement of the marriage, and a greater contribution as homemaker and parent. Let me assume, as artificial as this might be, that the submission was for a 5 per cent adjustment having regard to her greater contribution during the marriage. The adjustment of 5 per cent when applied to the adjusted pool of assets which excludes the inheritance and superannuation means it is 5 per cent of approximately $700,000. Thus, when the submission is taken to its logical conclusion, it would result in an adjustment in the wife's favour of $35,000 to recognise her greater contribution. This is highly problematic. Could it be seriously asserted that the true value of home making and parenting over a 10‑year marriage is a mere $3500 per annum, when averaged? Moreover, if such intrinsic assessments are undertaken and followed through to their logical conclusion, is it offset by a financial contribution by the husband greater than the wife to the same extent? All of this demonstrates, in my opinion, the soundness from both a legal and policy perspective of not trying to value discrete contributions intrinsically. My conclusion is that when contribution under s.79(4) is viewed in a holistic sense, even though the husband and the wife made different contributions, and greater contributions in their own sphere, the commonsense final outcome is a conclusion of the quality. This is not because of any presumption.
Insofar as the wife argued that she made a greater post‑separation, an argument that was only faintly made, she had the benefit of occupying the former matrimonial home. That property is not encumbered. The only expenses that the wife would have incurred were the usual outgoings. The claim for post‑separation contribution is not made out.
Finally, the wife submitted that there should be a s.75(2) adjustment in her favour, in the event that an assessment of contribution resulted in equality. Her case in this regard was based on the fact that the husband's actual income, and income‑earning capacity, was greater than hers. She would have the greater responsibility for caring for the children and, in particular, accommodating them. Offsetting this, of course, is the fact that she has received an inheritance, and is therefore in a sound financial position. However, it is clear that even the husband would prefer that the former matrimonial home is not sold, so that, if possible, the children and the mother may continue to reside there. He clearly contemplated a cash payment to him in order to buy him out. That cash payment could only have as its partial source the inheritance moneys received by the wife. It is therefore quite misleading to consider the impact of the inheritance in a situation where it is the fund that will be used to keep the roof over the head of the mother and the children. Whether the inheritance is used to pay the husband out, or whether the inheritance is used together with the sale proceeds of the former matrimonial home to buy alternative accommodation for the wife and the children, the fact is it may as well not exist. The need for the wife and the children to have adequate accommodation is self‑evident. Not even the husband would cavil with that proposition. Accordingly, there are s.75(2) factors that operate in favour of the wife. The children are only nine and six. The mother has expressed the desire to continue to provide care for the children so she only works part time. The husband's current financial circumstances are far superior to that of the wife as is plainly evident from his financial statement. Of course, he, too, will need to re-accommodate himself, and I accept that his desire is to be near the children, but he will, as a result of this order, have a substantial sum of money and he has the earning capacity to be able to borrow. Having regard to all of these factors, a s.75(2) adjustment in favour of the wife in the sum of 10 per cent is appropriate.
Accordingly, the effect of the orders I make are as follows:
a)Each party will keep their own superannuation entitlements;
b)The wife will retain the assets representing her inheritance;
c)The various items of personal property (referred to in the list which became exhibit R1) are to be declared to be owned as agreed between the parties;
d)The remaining assets are to be divided as to 60% to the wife and 40% to the husband, with the wife given the opportunity to acquire the husband’s interest in the home within 3 months of the date of these orders.
The final situation therefore can be depicted as follows:
Final Schedule of Assets (excluding superannuation and inheritance)
Matrimonial Home
$600,000
Shares
$26,955
Shares
$11,041
Holden Astra
$12,200
Holden Commodore
$18,300
Bicycles
$1,000
Savings (husband)
$31,356
Savings (wife)
$9,603
Other savings (wife)
$4,091
Total:
$714,546
Wife to receive 60%- $428,727
Husband to receive 40%- $285,818
When the schedule is amended to reflect the wife retaining the house, and each party keeping assets they already have, the schedule looks as follows:
Asset
Husband
Wife
Home
$600,000
Wife payment to husband of 40% interest
$240,000
($240,000)
Wife’s savings
$9,603
Husband’s savings
$31,356
Wife’s Astra
$12,200
Husband’s Commodore
$18,300
Wife’s other savings
$4,091
Husband’s bicycles
$1,000
Husband’s shares
$11,041
Wife’s shares
$26,955
Total
$301,697
$412,849
Final adjustment to wife:
($15,878)
$15,878
Total
$285,818
$428,727
The result is that if the wife pays to the husband the sum of $224,122 within three months of these Orders (i.e. $240,000 less $15,878), the husband is to transfer to her his interest in the home. Otherwise, the house will need to be sold and the husband receives that proportion of the sale price as $230,221 bears to the agreed current market value (i.e. $224,122/ 600,000= 37%).
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date:
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