Lake & Karter
[2009] FamCA 682
•31 July 2009
FAMILY COURT OF AUSTRALIA
| LAKE & KARTER | [2009] FamCA 682 |
| FAMILY LAW – CHILDREN – with whom a child lives – equal time and whether that is for the benefit of the parent/s or child - shared parental responsibility FAMILY LAW – PROPERTY - contributions - add-backs - principles to be applied when exercising discretion to add back funds expended post-separation |
| Family Law Act 1975 (Cth) ss 60B,60CC, 61C, 61DA, 65DAC, 65DAE Evidence Act 1995 (Cth) s 128 |
| G and C [2006] FamCA 994 H & H [2003] FMCAfam 41 Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Chorn and Hopkins (2004) FLC 93-204 Omacini and Omacini (2005) FLC 93-218 Steele and Stanley [2008] FamCA 83 M and M [1998] FamCA 42 Townsend and Townsend (1995) FLC ¶92-569 C and C [1998] FamCA 143 |
| APPLICANT: | Ms Lake |
| RESPONDENT: | Mr Karter |
| FILE NUMBER: | NCC | 2053 | of | 2007 |
| DATE DELIVERED: | 31 July 2009 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 18 & 19 June 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levick |
| SOLICITOR FOR THE APPLICANT: | Boyd Olsen |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: |
Orders
CHILD ORDERS
Ms Lake (“the mother”) and Mr Karter (“the father”) have equal shared parental responsibility for … born … July 2000 (“the child”).
The child spend one half of all school holiday periods with each of her parents, Mother’s Day with her mother, Father’s Day with her father, Christmas Day as arranged between the parties.
During school term the child will;
(a)live with the father each alternate weekend commencing after school Friday until commencement of school Tuesday
(b)live with the father 3 other afternoons per fortnight (during school term) from after school to 6.30 pm on days as agreed between the parties or as otherwise determined by a Court
(c)such 2 week cycle for orders 3(a) and 3(b) shall commence the first weekend after the start of each school term if the child was with the mother the last week of the preceding school holiday and the second weekend after the start of each school term if the child was with the father the last week of the preceding school holiday.
(d)live with the mother otherwise.
(e)leave is given to either of the parties to apply, within forty two (42) days of the date of these orders, if they are otherwise unable or unwilling to agree a commencement date for the father’s time with the child as set out in the orders and/or they are unable to agree on the 3 days per fortnight from after school to 6.30pm.
(f)such other or alternate times as agreed in writing between the parties.
The father and/or his nominee will collect the child from the child’s school or from the mother at the mother’s residence, whichever is the appropriate, at the commencement of each period of time the child lives with the father.
The mother and/or her nominee will collect the child from the child’s school or from the father’s residence, whichever is the appropriate, at the commencement of each period of time the child lives with the mother.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY
Within ninety (90) days of the date of these orders the father pay to the mother the sum of $193,716.00. .
Forthwith upon receipt of such payment (together with any interest that may accrue on that sum pursuant to operation of the Family Law Rules 2004 if paid after 90 days) the mother shall sign all documents to transfer to the father all her right title and interest in …. in New South Wales (“the [M] property”)
Contemporaneously with the transfer of the title of the M property from the joint names of the parties to the father, the father shall cause to have discharged the mortgage secured against the M property in favour of the ANZ Bank or alternatively have the mother released from her personal covenants under that mortgage.
Pending discharge of the said ANZ Bank mortgage the father shall be liable to pay all interests, fees and charges such as to ensure that the payout of that mortgage does not exceed $249,203.
The father shall pay all council rates, water rates, land tax (if any) in respect of the M property pending the transfer of the property to him or its sale and shall indemnify and keep indemnified the mother in that regard.
The father shall keep all the improvements on the property properly insured against fire damage, flood etc pending the transfer or sale of the M property and shall produce to the mother evidence of such insurance which will be in the joint names of the parties.
In the event that the father is unwilling or unable to pay to the mother the amount referred to in order 11 herein in the time provided (or such longer time as agreed in writing between the parties) then the parties shall do all acts and sign all documents to cause the M property to be sold by private treaty or auction (as agreed between the parties or in the event there is no agreement then by auction) at a date recommended by the agent subject to:
(a)the agent and auctioneer shall be as agreed between the parties, and failing agreement then an agent and/or auctioneer be appointed by the President of the Real Estate Institute of New South Wales or his/her nominee, at the request of either party;
(b)the solicitor or the conveyancer acting on the sale shall be as agreed between the parties and failing such agreement then such solicitor or conveyancer shall be as nominated by the President of the Law Society of New South Wales or his/her nominee;
(c)if the property is listed for auction for sale the sale price shall be as agreed between the parties or in the event the parties are unable to agree $720,000 or if the property is unable to be sold at that sum the amount recommended by a valuer nominated for the purpose of determining its valuation by the President of the Institute of Valuers New South Wales or as requested by the parties.
The sale proceeds shall be paid and disbursed as follows:-
(a)in payment of agent’s fees, auctioneers fees, advertising expenses, legal fees, conveyancing fees and any fees in relation to valuations for appointment of auctioneer, agent, solicitor, conveyancer or valuer and for any adjustments for the registration of the discharge of mortgage (“the sale expenses”) ;
(b) payment to the wife of 27 per cent of an amount equal to the sum of the gross sale price less the sale expenses.
(c) the amount necessary to discharge the mortgage to the ANZ Bank (plus the banks fees on a discharge of mortgage);
(d)any rate adjustments;
(e)the net balance be paid to the husband.
Leave be given to the parties to apply in the event there is any issue in respect of the sale of the M property or the calculations of the distribution, such leave to expire ten (10) months from the date of this order.
The father shall retain, as against the mother, his Toyota Hi-Lux, furniture and household effects contained in M, his tools of trade and any interest he may have in a boat (if any).
The mother shall retain, as against the father, her interest in the 2007 Suzuki Swift, the furniture and effects contained in the home owned by her, the NAB shares (in that respect the father shall sign any document to transfer any interest he has in any of the shares to the mother within twenty one (21) days from the date hereof) and the mother’s jewellery.
The mother shall indemnify the father in relation to her Companion Credit Union debt of approximately $3,500, ANZ visa card debt of $7,257 Commonwealth Mastercard debt of $7,303, GE Credit Line of approximately $4,617 and American Express card debt of approximately $5,795.
Each of the parties shall retain their interest in their respective superannuation entitlements which were referred to in the reasons supporting these orders.
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
This matter be removed from the list of cases requiring determination.
These orders shall not be perfected for fourteen (14) days following the date reasons are delivered and leave is granted to the parties to apply on twenty four (24) hours notice in respect of the form (not substance) of the orders.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
AND THE COURT NOTES
The Court notes that the orders with regard to the child’s time with each of her respective parents over school holiday periods and special occasions has not been the subject of a specific order at the request of both parties who assert to the Court that they can make arrangements in that regard without the intervention of a court order.
IT IS NOTED that publication of this judgment under the pseudonym Lake & Karter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: NCC2053/2007
| MS LAKE |
Applicant
And
| MR KARTER |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Lake (“the mother”) and Mr Karter (“the father”) are unable to agree on some aspects of parenting of their daughter, aged 9 and they are unable to resolve the split of their property following the breakdown of their marriage.
Background
The father is aged almost 43 and the mother about 40. They commenced living together in 1996 or 1997. They married in January 1998 and their daughter was born in July 2000. The parties separated in February 2006.
After the parties separated agreed that their daughter live half of her time with each of her parents.
The mother commenced proceedings in June 2007 and the matter started as a Less Adversarial Trial in March 2009.
A Children’s and Parents Issues Assessment, dated the 1 August 2008 was prepared. A Family Report dated 20 May 2009 was also prepared. In that later report the family consultant expressed a view that a judicial determination was required. The matter was heard at Newcastle on 18 and 19 June 2009.
The father works as a handyman for a local facility and in his own business. The mother qualified in a profession during the course of the parties’ relationship and now works in that profession.
The child’s issues
In these proceedings both parties seek an order that they have equal shared parental responsibility for their daughter. They also ask that the court not make specific orders with regard to their daughter spending equal time with each of them over school holiday periods and on special occasions. The parties assure the court (and the court accepts) that they are able to manage that part of their responsibility to care for the child.
The mother is concerned that the father’s relationship with his daughter is such that he does not exercise sufficiently adequate parenting skills to enable the child to continue to thrive in his care. The mother wants the arrangements during the school week changed to provide that the child live with her most of the time and spend four nights per fortnight (from after school Friday to the commencement of school Tuesday) plus three afternoons per fortnight (those afternoons to be worked out once these orders are made and on an annual basis once the child’s activities are determined) with the father. She said this should happen because of the negative impact of a number of factors in relation to the child.
One factor is that the communication between the parties is not particularly good. The mother asserts that as a consequence the child is able to manipulate the parties and this manipulation will become worse over the years.
Secondly, the mother asserts that because the father is so angry and bitter about the failure of his relationship with the mother he leaves the child seeing herself as being responsible for the his emotional well-being. Further, the mother argues, that the father does not provide appropriate structure for the child and disregards the mother’s input in decision making about the child.
These concerns are set out briefly in the mother’s summary of argument prepared by her counsel and in particular counsel for the mother refers to questions of hostility, communication, the parties’ ability to co-operate, the compatibility of their parenting style and the father’s involvement of the child in his own emotions.
The mother’s application has changed from time to time including from her initial application, to the evidence she gave at a Less Adversarial Trial in March 2009 to what she informed the family consultant when the interviews for the Family Report were undertaken in April 2009.
The mother, like this court, is struggling to work out how to deal with the issues that bedevil the parent’s ability to parent this child.
The father says that the current arrangements should be left as they have been for three and a half years and submits, through his counsel, that the court should be reluctant to change the status quo which has been in place for so long and in circumstances where the child has expressed strong views that it remain in place.
This matter commenced as a Less Adversarial Trial in March 2009. However with the consent of counsel the material upon which these determinations are made were contained within the hearings on the 18 and 19 June 2009.
The transcript of the evidence given by each of the parents at the hearing in March 2009 was tendered into and formed part of the evidence at the hearing.
I raised with counsel for both parties as to whether the solution may well be to give the mother greater parental responsibility rather than changing the times the child spends with each parent.
Counsel for the mother submitted that there ought to be equal shared parental responsibility and if I was to adopt that course that I had raised with counsel, it should be that the mother has the parental responsibility not the father.
The submission of counsel for the father is that there ought to be equal shared parental responsibility.
Any statement of fact in these reasons is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
The evidence in respect of the children’s matters
Ms L, a family consultant prepared a Children’s Parents and Issues Assessment in August 2008 and a Family Report in May 2008.
In the Children’s Parent and Issues Assessment the family consultant summarised:-[1]
It is evident that [the child’s] experience of the separation of her parents and the post separation period has been one of great sadness initially, and then over the last 2.5 years a readjustment to the equal time arrangement.
It would appear that [the child’s] vulnerabilities include her awareness of the poor relationship between the parties, missing the parent she is not living with and her worries about her parents, especially her father, missing her.
The applicant mother’s proposal that [the child] live with her for most of the time is consistent with the child’s needs for routine and stability but inconsistent with her need for as much time as possible with both parents. The impact on the child of this proposal is that she would spend less time with her father and she would be sad about this and would worry about her father missing her. The parties have very different parenting styles and they are, on occasions, able to acknowledge the benefits of this for [the child]. However these differences have become, particularly for the mother, a source of frustration and lead to an increase in the conflict.
The father’s proposal that the equal time week about arrangement continue is consistent to some extent with the child’s needs. The impact on the child of this proposal is that she continues the arrangement that has been in place for 2.5 years and she is able to have significant time with each parent. The parties’ current high level of conflict would usually indicate that a shared arrangement is not appropriate. However, [the child] is used to a shared arrangement and there are benefits to her of this continuing.
Neither parent was able to shift from their original position following the feedback session and there have been no changes in the parenting arrangements following this.
The mother has completed a Parenting After Separation Course and the father is on the waiting list.
It appears that the matter requires a judicial decision. At this stage a family report would not be required as the main parenting issue is a matter of either an equal time arrangement or a move to a substantial and significant time situation. There are concerns raised by both parents to do with behaviour and lifestyle issues of the other parent. However, at this stage an exploration of these issues will not assist in reducing the conflict.
[1]At pages 3 and 4.
The family consultant saw the parties, members of their families and the child in April/May 2009 and prepared a Family Report. In that Family Report she recommended that the parties have shared parental responsibility and then set out the following:-
86.It is recommended that if the Court finds the child sees herself as being responsible for the father’s emotional well-being, that the father does not provide appropriate structure for her and the father disregards the mother’s input into decisions regarding [the child], the child should live with the mother and spend time with the father on four to five nights a fortnight. If the Court finds that none of the above issues, when weighed up against the child’s strongly held views, are significance then the week about arrangements should continue.
87.Additional time is recommended during holidays and special occasions. If the court determines that the child should live with the mother for more time during the school term then perhaps greater share of the holidays could be spent with the father.
In relation to this later recommendation contained in paragraph 87 the mother opposed this on the basis that that was part of her “fun time” with the child.
The family consultant gave evidence initially and leave was given for the parties to cross-examine her further after the evidence of the parties had been completed. No application was made in that regard.
I accept the evidence of the family consultant. I accept her evidence that the child has expressed strong views. The family consultant set out in her report:-[2]
[The child] wanted the Judge to know that she did not want to spend more time with either her mother or her father – to keep it the same. She wanted her parents to stop what was happening, that is, being in court. She wanted them to stop fighting and doing the things that caused problems for her. [The child] is not worried about what her parents would say when they saw her views.
[2] paragraph 65 of Exhibit M1.
This has to be seen that the child was aged almost 9 when she gave those views and that she presented to the family consultant as an articulate child who appeared to present developmentally as above normal parameters.
It is significant to note, and I have regard to the evidence of the family consultant, that the child loves both her parents but feels particularly close to her father who she sees as supportive of her and that he is “in tune” with her.
The child is healthy and is achieving well at school. There is an issue about the child’s teeth and the mother has a view that dental hygiene may not have been at the forefront of the father’s concerns or that he may be feeding the child too many sweets which causes dental decay. There was very little evidence in relation to this assertion and as such it can be given little weight.
The mother’s evidence
The mother gave evidence in accordance with her two affidavits the first filed 22 May 2009 and the second filed 10 June 2009 (the later affidavit dealing primarily with property).
The mother was an impressive witness who gave her evidence accurately and clearly. She made admissions against her interests and I accept that she is a reliable witness. She was criticised in submissions by counsel for the father in that I gave her certificates under s128 of the Evidence Act 1995 (Cth). Those certificates were not given in any way which would reflect poorly or badly upon the mother but, simply as a precaution in the event that difficult questions needed to be asked or answered.
In terms of parenting the mother was looking for a solution to the problems that had bedevilled the relationship between herself and the father since separation.
The communication is adequate but not good. They are able to put arrangements into place but many of the requests for information and most of the emails which the mother sent to the father are left unanswered. I prefer the mother’s evidence to that of the father in terms of the responses.
An example of this is of the arrangements the mother is putting in place for the child’s ninth birthday. The mother invited the father to attend the child’s birthday party by email two or three weeks before the hearing. He had not responded and there can be no reason why he did not do so. He intended to go and his failure to communicate in that regard was indicative of his anger or bitterness towards the mother rather than adopting a child focused approach.
The mother was criticised, by counsel for the father, in cross-examination and in submissions for her approach in wanting to change the parenting arrangements. I do not accept that the criticism was warranted. The mother is trying to deal with a difficult situation in terms of the impact of the different households and the emotional upheaval following the relationship break-down and its impact on the child. Her approach is child focused.
The mother, like the family consultant, has concerns that the child will have difficulties managing, particularly with pre-pubescent and pubescent years, bearing in mind the father’s approach to parenting.
The proposals that the mother seeks to put in place was her response to her underlying concerns. I accept the mother’s evidence that she was the primary carer for the child for approximately the first year of the child’s life. From late 2001 onwards the father took on a significantly greater role in terms of parenting until 2005 and then between 2005 and when the parties separated in early 2006 the mother was much more involved having more flexibility in her working life.
There is no issue that apart from one month following separation the child has spent equal time with each of the parties. From time to time there have been variations although I do not accept this occurs as easily as the father would have the court believe.
The child’s school report[3] was tendered which showed that she was coping well at school and in fact her reports showed improvement from 2008 to 2009 and the child had won an award.
[3] Exhibit F1.
The mother gave evidence that she is in a relationship with another person (who did not give evidence). In the circumstances outlined by the mother (which I accept) I am not concerned that no evidence was provided by this person. The mother’s relationship partner saw the family consultant. The mother spends time at his house but the mother resides in her own house. The mother and her new partner are not living together but may do so in the future.
I accept that the child has a good relationship with the mother’s partner. I accept the mother’s evidence that the child has strong views.
The father’s evidence
The father gave evidence in accordance with his affidavit filed the 9 June 2009. I am not as sanguine about the father’s evidence as I am about the mother’s evidence. His demeanour in the witness box was of someone who was quite uptight and/or angry. That may have arisen by virtue of the process although I think not. His communication abilities seem limited and in terms of his communication with the wife it is provided on a limited “need to know” basis.
For instance, he recently suffered a cold or flu and asked the mother to look after the child whilst the nature and type of his illness was determined. The inference was clearly that he may have had swine flu. The father was not forthcoming as one would have hoped in a joint parenting arrangement in terms of that concern. The mother responded appropriately by taking care of the child and arranging on the Saturday for the child to deliver a card and some food to the father without running the risk of breaking any quarantine. Fortunately the father did not have the particular disease. He provided only limited information to the mother who was caring for the child and in circumstances where the child was worried about her father. The father’s limited provision of information was indicative of his negative view of the mother and the father had little or no insight as to how that approach may consequently impact on a worried child.
The father described the separation recently as when the mother left the child. I am satisfied that the father is still angry at the circumstances of the relationship break-up and has not as yet come to terms with it. I do not accept his evidence that he has moved on from that. His description of the mother’s partner as “fuck head” is indicative of his remaining anger. It is also indicative of his lack of insight into the impact of his emotions upon the child.
The father relied upon the affidavits of E Karter, F Karter, M Karter. Their evidence was admitted without controversy. In many ways they were ‘cheer squad’ material and while I accept their evidence it is the determination of the nature of the interrelationship between the father and mother and their respective evidence which is of greater concern.
The relevant legal principles to be applied
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done 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.
The principles set out in s60B(2) that underlie those objects are that, except when it 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).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[4] for the child. The section provides as follows:
[4] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
(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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s65DAA).
(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 is found to apply and is not rebutted, as it is not in the best interests of the child, an order must be made in accordance with s61DA for equal shared parental responsibility. If not, the court must make a declaration that the presumption does not apply and for reasons pursuant to subsections within s61DA.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s65DAC. That section provides as follows:
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The question of the allocation of parental responsibility probably needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:
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 consistence 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);
(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.
A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A court must consider each of the additional considerations separately. A court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In most parenting cases the primary considerations set out in s 60CC(2) go to the core of the decision, although they must be taken into account with the additional considerations under s 60CC(3).
I agree with her Honour Justice Bennett’s approach in the unreported decision of G and C [2006] FamCA 994 that “the court must evaluate the nature and quality of the relationship” to establish whether there is any ‘benefit to the child’ in having or continuing a relationship and whether such relationship is or will be ‘meaningful’”. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
Discussion
During the trial I raised with counsel for both parties as to whether the solution to the dispute between the parties may well be to give the mother greater parental responsibility rather than changing the times the child spends with each parent.
Counsel for the mother submitted that there ought to be equal shared parental responsibility and if I was to adopt that course that I had raised with counsel it should be that the mother has the parental responsibility not the father.
In his written submissions counsel for the mother asserted that although the mother maintained her position that the bestowing of sole parental responsibility “would be of little or no practical benefit in the present regime”[5], there may be significant benefits for the child if this were accompanied by a “shift in the time she were to spend in each parent’s household”[6] particularly in the household of the mother. Counsel argued such a shift would ensure consistency in parenting responsibility reposing in the mother. He submitted that the risk of failing to do so would increase the potential for parental tension and disparate parenting styles.[7]
[5] Mother’s submission at paragraph 7.
[6] Ibid.
[7] Ibid at paragraph 9.
Further counsel for the mother submitted that on the mother’s evidence the court could be satisfied that the mother “would exercise such responsibility in the child’s interest and would seek to promote and improve communication with the father, and to reduce the conflict”.[8] I accept that submission.
[8] Ibid at paragraph 10.
Counsel for the mother also submitted that the father’s current attitude towards the mother and her partner, and his derogatory references to the mother’s partner, raises questions about the child still being exposed to the father’s inability to move on from the breakdown of his relationship with the mother. Further, he submits, the child being exposed to her father’s bitter feelings, particularly the supermarket incident in early April 2009, towards the mother is a relevant factor which should be taken into account by the court in determining whether there should be an order for sole parental responsibility and consequent change to the current arrangements.
Finally, counsel for the mother argued there was no substance to the father’s assertion that if an order was made reducing his time with the child it would “impact on his ability to share time with his family”.[9] Counsel for the mother submitted that the time proposed by the mother would enable him to continue to have “regular and frequent contact with his extended family”.[10]
[9] Ibid at paragraph 12.
[10] Ibid.
The submission of counsel for the father is that there ought to be equal shared parental responsibility. Counsel for the father in his written submissions argues that if an order for sole parental responsibility were granted to the mother it would “add, rather than lessen, any conflict which presently exists between the parties”.[11] Further he asserts there is the risk that the mother would exercise such rights at the cost of the child’s relationship with her father. He submits the “potential for the father daughter relationship to be undermined by such actions cannot be excluded”.[12] I accept that submission.
[11] Paragraph 1.3 of the father’s written submissions
[12] Ibid.
Counsel for the father submitted that in circumstances where each of the parties is to continue to have substantial and significant time with the child, there was nothing in the evidence which would lead the court to making an order for sole parental responsibility in favour of one parent over the other.[13] He argued this would be “especially so if the court were inclined to order that [the child] spend additional time with her mother”.[14]
[13] Ibid at paragraph 1.4.
[14] Ibid.
Finally counsel for the father submitted the “whole of the evidence points to [the child] doing well under the current arrangements”.[15] He argues to change these arrangements “has the potential to threaten that position”.[16] I do not necessarily accept that submission.
[15] Ibid.
[16] Ibid.
The mother attends all of the child’s netball games, the father attends those when the child is with him but not those when the child is in the care of the mother. The father attends the child’s school but does not attend parent teacher nights.
In determining what parenting orders to put in place during the school term I am required to have regard to the factors set out under s60CC. In terms of time the issues before me are quite narrow. It is a question of whether the child lives with her father for equal time or significant and substantial time.
The father says that it ought to be equal because of the views of the child, his ability as a parent, the status quo that has been in place and in which the child has thrived for the last three and a half years and that the court should not be persuaded by differences in households or parenting approaches to change what is a good and stable relationship which is working adequately to well.
Whatever decision I make the child will have the benefit of a meaningful relationship with both of her parents. There is no risk of abuse to be considered by virtue of s60CC2(b) of the Act.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The views of the child are quite strong. First of all she wants the equal time to continue because she would miss either her mother or father if she saw less of them. She had concerns that if she spent extra time at her mother’s house she would not have as much time with her father and she “loved spending time with both parents”.[17] Secondly, the child said that the only change she would like to occur would be for the changeover to occur on a Monday. This was so that the “fun time could be at the end of her week”.[18] The child has lived in this shared arrangement for a considerable period of time and is a child whom the family consultant believes is likely to be above average in emotional development.
[17] Exhibit M1 at paragraph 54.
[18] Ibid at paragraph 60.
Albeit she is in year 3 in primary school I have significant regard to her 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;
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The factors under s60CC(3)(b), (c), (f) and (i) can be dealt with together. Both parents provide good households for the child and are able to manage the parenting. I accept that the child enjoys school and is performing well and is engaged in sport and music.
The housing needs of the child are met by both parents. It may well be, however, that the effect of the property orders is that the father will need to sell the home at M. However, I am satisfied he will continue to provide proper accommodation for the child.
However, where I do have concerns are those articulated by the mother. Firstly in terms of communication the father does not communicate well with the mother and either does not respond or responds poorly to the mother’s emails. The concerns of the mother are set out in terms of the father’s provision of a mobile telephone to the child and allowing her to use a hair straightener, without supervision.
I find the father is bitter and angry at the mother and her partner and that the communication between the parents is not at a particularly good level. I am concerned that the present arrangements may give rise to problems for the child as she develops into adolescence.
Each of the parties have a different parenting style. The mother sets boundaries. The father asserts that he sets boundaries but I prefer the evidence of the family consultant that there are times when he has difficulty saying no. For instance, the father said he would not allow the child to have a CD of a particular rock singer who uses profanities. However, the father allowed the child to enter a competition where first prize was to go to a concert and perhaps meet this rock singer. I have concerns about his evidence that he would not meet the child’s expectations if this competition was to be won.
This will, as I have said earlier, impact upon the child as she grows older and matures. I accept that the father’s conduct is likely to lead to oppositional behaviour of the child.
There was evidence about the father buying inappropriate clothing for the child. Whilst there was some evidence in that regard I am not particularly worried in that respect, there is no evidence before me that he is buying sexualised clothes for the child. The difference is in respect of style.
The mother submits and gives evidence that the father has involved the child in his own emotional feelings. From his evidence and that of the family consultant the father found it difficult to differentiate his feelings from those of the child at separation and he continues in that way at some levels. His insights into the impact of imposing his feelings and antipathy to the mother on the child are somewhat limited.
An example of this is apparent in his refusal to accept his daughter’s invitation to look at her bedroom in the mother’s home. The mother took the opportunity to look at the child’s bedroom in the father’s home. The father said he would do this at a time when he was ready. It was not about him it was about the child but he could not see that.
I also accept the mother’s evidence that in April 2009 the mother was with the child at a local shopping centre and they saw the father. The mother’s evidence was that the child went over to speak with her father. The mother joined them when she had finished her shopping. The mother says she asked the father how he was and he ignored her. The father’s anger continues and notwithstanding his evidence I am satisfied that the child is aware that the father does not like the mother and particularly the mother’s partner.
There are also differences in regard to the routine each of the parties has for the child and I prefer the mother’s evidence in that respect.
The father from time to time has and will continue to undermine the relationship between the child and the mother, he will continue to amesh some of his own feelings with the child. This reduces his capacity to provide for all of the emotional and intellectual needs of the child.
I am not satisfied that the father is as focused on the child’s homework and routine as well as the mother.
The mother’s solution is the child spends seven days per fortnight (in one form or another) with the father. The child would be with the father four nights and three afternoons, including after school, until 6.00pm or 6.30pm.
This would mean that the mother would need to take the child or the father would need to deliver the child to the mother three afternoons per week at 6.00pm or 6.30pm so that the child could have dinner and sleep at the mother’s home.
In coming to the conclusions in these proceedings in respect of children’s matters I have reflected on all of the evidence to consider the extent to which the child’s parents have fulfilled or failed to fulfil their responsibilities as parents as set out in s60CC(4). In having regard to all of the material before me and all of the findings of fact I determine that in my view the best interests of the child are served by the orders set out at the commencement of these reasons.
Conclusion children’s matters
The concept of equal time is often raised by parents as being a ‘fair’ solution. No doubt from some parent’s point of view equal time is ‘fair’. But is it fair to that parent or the child. Often children are taught that it is fair that this occur and those words are reproduced to family consultants. I do not know and make no such finding in this case.
Children are being committed to childhoods moving from one home to another without a primary place to regard as theirs, a week here a week there. I often wonder how parents would cope with moving home week about.
Children are not loaves of bread to be divided and sliced to meet adult concepts of what is or is not fair. Courts are constantly being asked to make equal time orders despite high conflict and continuing animosity. Courts exercising jurisdiction under the Family law Act 1975 (Cth) have the difficult task of putting in place arrangements when parents are unable or unwilling to do so. The task of a court in those circumstances is to put in place arrangements which are in the best interests of a child and not necessarily the parents. Children need and are entitled to stability and certainty in their lives. Success in parenting after separation is not a measure of time it is determined by the absence of conflict between parents and the effective use of the time children have with each parent and other members of their families.
Ryan J (when a Federal Magistrate) in H & H [2003] FMCAfam 41[19]set out a list of factors which courts should consider when considering equal time, these include;
[19] Paragraph 47.
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child's wishes and the factors that influence those wishes.
·Where siblings live.
·The child’s age.
The child is aged 9 and has no siblings, she is particularly attuned to the father. She has expressed strong views to spend equal time with each parent. Those views are her own.
The mother respects the father as a parent, her invitations to him to attend the child’s birthday parties are some of the indicators in this respect. The father does not respect the mother as a parent. He is still not reconciled to the end of the parties’ relationship and is unable to disassociate his needs and feelings from that of the child.
In practical terms the equal time is working and has done so since shortly after separation.
The parents both deeply care for the child and have hopes that she will succeed in life. However, they do have different approaches to parenting and that of the father leaves the child at risk as she develops into adolescence. The mother sets boundaries which the child will need over the next few years.
The father does not communicate well with the mother and that communication is unlikely to improve with the further passing of time. The parties communicate well enough at a mechanical level but at deeper levels such as boundaries the communication is poor.
Having regard to all of the factors I determine that the child should live primarily with the mother during school term. This will mean that she lives with the father each alternate weekend from after school Friday to commencement of school Tuesday in week one of two week period, plus 3 other school afternoons over that fortnight period. I am satisfied that the parties are able to communicate enough to meet the detail of the orders, however, if not I will give the parties leave to have the matter relisted before me to enable evidence, argument and determination as to the particular days from after school to 6.30 pm.
PROPERTY
The Principles to apply
The Full Court in Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 78,386 reiterated the preferred approach to the exercise of discretion in property matters, pursuant to s.79:-
39.The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
40. Section 79, unlike s.78, requires the Court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property. As a consequence of the first step in the preferred approach to the determination of the s.79 proceedings, each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto: Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Tate v Tate (2000) FLC 93-047.
Thus the approach in this case involves a number of steps:-
(a)The identification of property and its value;
(b)An evaluation of the parties’ contributions having regard to ss 79(4)(a)(b) and (c);
(c)Consideration of any adjustment to that assessment having regard to the relevant matters in ss 79(d),(e),(f) & (g) (“the other factors”) including the matters referred to in s.75(2); and
(d)Consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
Identification of Assets and Liabilities of the parties
Assets
The assets and liabilities of the parties are as follows:-
M Street
$720,000
Toyota Hi-Lux (father)
$7,000
2007 Suzuki swift (mother)
$16,500
Father’s furniture & effects
$3,000
Mother’s furniture & effects
$5,000
Mother’s NAB shares
$1,584
Mother’s jewellery
$2,500
Tools of trade (father)
$3,000
Father’s proceeds of sale of Saab motor vehicle
$500
Mother’s AMP superannuation
$19,378
Mother’s Colonial superannuation
$9,899
Father’s NGS superannuation
$6,684
Father’s R.E.S.T. superannuation
$6,689
Total assets
$801,734
ANZ Mortgage
$249,203
Credit card debts of wife
$28,472
Total Liabilities
$277,675
Net assets
$524,059
The parties agree that as at the date of hearing the mortgage to the ANZ Bank secured over the M property amounts to $249,203.
However, in terms of the balance sheet there are a number of issues in dispute, which are discussed in the following paragraphs of my reasons.
Boat
The mother asserted the father owned a half interest in a boat with his brother. In respect of that evidence the father said that he had never owned a boat nor did he have an interest in a boat. As set out elsewhere in these reasons I have some concerns about the reliability of the father’s evidence. The father said he did not own a boat and had never owned a boat. Yet the father made a Will in October 2002 where he left his “half share in a boat” to his brother. In terms of that Will the father prevaricated. In submissions counsel for the father argued the mother had failed to “discharge the onus of proving that the father is the owner of a boat let alone establish its value”.[20] I am satisfied in 2002 that the father had an interest in a boat and has not been frank to the court in terms of that asset.
[20] Paragraph 2.1 of the written submissions filed the 3 July 2009.
The mother seeks the court to make a finding that the father’s interest in the boat is valued at $8,000. There is no evidence as to its value and accordingly it cannot be included as an asset in the pool. Counsel for the mother submits her claim in this regard is a modest one and is within the courts reasonable discretion to make such a finding. I do not accept this submission. However, in consideration of any the other factors I have had regard to the father’s non-disclosure of the boat and its value.
Each of the parties incurred legal fees in these proceedings. It was necessary for the father to borrow money from his brother totalling some $18,200 plus advances by himself of $4,000. The father seeks an add-back of $4,000 with regard to his legal fees. In the joint balance sheet he did not seek a liability in relation to the loan from his brother. Counsel for the mother asserts the court should treat the “loans” from the brother as a financial resource because they were not disclosed, I do not adopt that approach. Counsel for the father submitted that the court “could not find the loan from the father’s brother to be a financial resource in circumstances where the unchallenged evidence is that monies were borrowed to pay legal fees and are to be repaid as soon as possible”.[21]
[21] Ibid at paragraph 2.3.
There was no evidence of any liability incurred by the mother or spent by the mother in respect of legal fees. Having regard to the facts and the principles regarding the add back of legal fees and the need for both parties to engage legal practitioners to act for them, I do not intend to add back the $4000 in legal fees.
The mother asserts there ought to be an add-back in terms of the increase in the mortgage liability post separation. The father has had occupation of the matrimonial home since separation and the mother says that as a result of the father not meeting all of the mortgage repayments the mortgage has increased by some $11,149. This is after taking into account the repayments made by or on behalf of the mother particularly in relation to capital gains tax and repayments by her.
Counsel for the father submits that upon examining the whole of the evidence, the “court could not be satisfied that the interests of justice and equity demand such an add back”.[22] Further, counsel argued the mother has failed to discharge the onus, consistent with the authorities[23], that the father has obtained a post separation benefit for which she must be compensated.
[22] Ibid at paragraph 2.4.
[23] Townsend and Townsend (1995) FLC ¶ 92-569 and Chorn v Hopkins (2004) FLC 93-204.
As I said in Steele and Stanley [2008] FamCA 83, in Omacini and Omacini [2005] FamCA 195[24] the Full Court reviewed authorities in respect of wastage and add-backs, the Full Court said;
[24] (2005) FLC 93-218 and (2005) 33 Fam LR 134.
30. To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC ¶ 92-816 the Full Court said at 85,262:
``11.6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties has managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought to be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought to normally be spelt out.''
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC ¶ 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
``In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which [79618] would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.''
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC ¶ 91-092 at 76,644:
``As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(o) to applications for settlement of property instituted under the provisions of sec 79.''
31.As the Full Court said in Browne v Green (1999) FLC ¶92-873 at 86,360:
``44. We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction — a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction.''
In Chorn and Hopkins (2004) FLC 93-204 the husband bought his new partner an engagement ring eight months after separation. It was not purchased with funds the husband had at separation, it was purchased on credit and there was vague evidence that his partner may have contributed to the purchase. The Full Court quoted favourably from para 2.11 of M & M [1998] FamCA 42, 1 May 1998, per Baker, Kay and Chisholm JJ:
There seems to be no appropriate basis for notionally adding back monies that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support.
It also quoted favourably from para 346 of C & C [1998] FamCA 143, 8 October 1998 per Nicholson CJ, Chris and Kay JJ:
Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with property getting on with their lives.
In Omacini and Omacini, supra, the Full Court found that the trial judge had incorporated a number of add-backs without making any specific finding that the expenditure of the husband was wanton or reckless. To justify an add-back, it was necessary to make some assessment of the reasonableness of the husband's expenditures. This had not occurred.
In Townsend and Townsend (1995) FLC ¶92-569 the husband after separation sold a taxi licence. He spent much of the proceeds for his own benefit. Nicholson CJ said at p 81,654:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
Having regard to the general principals with regard to add-backs it seems to me that this was not an unreasonable expense bearing in mind it provided accommodation for the child and the father has paid significant amounts to the mortgagee. Exercising the broad discretion that I have I will not add this back
The mother’s gambling
The father asserts that the mother gambled during the course of their relationship and wasted about $15,000. The mother conceded in evidence that she spent over the term of the relationship in 1996/1997 and 2006 about $10,000 to $15,000 on gambling. The mother was harsh on herself in terms of the gambling and said that she ceased gambling in late 2004.
She was cross-examined in relation to some expenditure in 2005. I am satisfied that the mother stopped spending money on poker machines in 2004.
The father gambled as well but I accept that this was at a much lesser degree than that of the mother. However the mother’s gambling was not all that significant and was probably less than the cost of packet of cigarettes per day for a person who smokes. This was an activity in which the mother engaged in which the father was aware of. It was part of the fabric of their relationship and whilst the mother acknowledged that she had a problem with “binge gambling” she said, and I accept, that she addressed that problem.
Accordingly having regard to the mother’s evidence and accepting the mother’s evidence I do not propose to add back the sum sought by the father or a lesser sum.
The mother claims the following liabilities to be taken into account:-
Liabilities
Companion Credit Union
$3,500
ANZ visa
$7,257
Commonwealth Mastercard
$7,303
GE Credit Line
$4,617
American Express
$5,795
Total
$28,472
The mother sets out in paragraphs 254 to 257, of her affidavit filed the 22 May 2009, details in relation to her credit card debts. The father dealt with the mother’s use of the credit cards at paragraphs 104, 105 and 120 of his affidavit. He said that he always paid for things as he went along and did not borrow money. He was critical of the mother buying things for herself such as significant clothing and said that the mother was a spender and used credit cards and he was not.
I accept that part of the credit card debt was incurred prior to separation and part was incurred after separation. This has to be seen in the context of the mother earning income as a professional and needing to care for the child. The mother also needed to set up a household after the parties separated.
I am satisfied that the debts incurred by the mother with credit cards and through other borrowings were appropriately incurred in her day to day living and ought to be included as liabilities. I intend to do so.
Sale of Saab motor vehicle
The parties at one stage owned a Saab motor vehicle which was used by the mother. The mother asked for return of that vehicle after separation, the father declined and sold the car to a neighbour for $500. There is agreement that the vehicle was sold for that sum and in circumstances where the mother sought the return of the vehicle.
The parties have agreed that there ought to be an add-back of $500 in respect of that vehicle having been sold in somewhat extraordinary circumstances. This is another example of the father’s anger and bitterness towards the mother.
Contributions
In July 1989 the father purchased a property at S (“S property”) for $115,000 which was funded by a mortgage from Westpac bank in the sum of $55,000. This meant at that stage the father had equity in that property of some $60,000.
S property was sold in March 2002 for $310,000. The amount required to pay out the mortgage, at that time, was about $24,600. This meant that there were net proceeds of sale of about $295,000 to $300,000. The parties then purchased the former matrimonial home at M for $420,000 using the balance proceeds of sale from the S property and a loan from the CBA of about $170,753.
There was no satisfactory evidence before me as to the value of the S property as at the date the parties commenced cohabitation.
I am satisfied that the mother made significant contributions either directly or indirectly as set out in paragraphs 192 to 233 of her affidavit in particular in terms of working, providing assistance to the father and working at the shop. This information was clearly set out in the mother’s affidavit and I generally accept her evidence in that regard.
As to the father’s evidence in respect to property matters I have serious concerns. The father failed to disclose his earnings from his business which he commenced in about March 2008. He had gross receipts in that business of about $3,500 for that three to five month period and a net profit of $1,000. He did not provide any documentation as to the earnings of that business over the eleven months from 1 July 2008 to end of May 2009.
I did not accept the father’s evidence or his reasons for not providing this information. This was at a time when he was able to make significant repayments on the housing loan (about $17,000 per year), care for his child including buying clothes and meeting her needs, purchasing food for himself and the child and running a motor vehicle. At the same time he paid $4,000 towards legal fees. I am satisfied that the father earns considerably more income from his business than he has disclosed and that income is not available to the court.
If the father was able to gross this amount in the first few months of his business it is likely, if that had continued, I am able to infer that he would be grossing between $10,000 and $20,000 over the eleven months from 1 July 2008.
The father gave evidence in cross-examination of his ability to earn more income if need be. I am satisfied that the father earns about $300 per week through his employment and earns or has the capacity to earn a similar sum, if not more, doing his handy-man work. I am concerned that he did not disclose the money he receives from the persons living in the house with him in terms of their contributions to food, power and gas.
The father was effectively cross-examined, by the mother’s counsel, as to his expenditure and was not believable when he asserted that he could feed himself for two weeks and the child for one week on a very small amount of money. It just does not have the ring of truth about it.
I do not accept that the mother wasted money on gambling, it was in this case a modest expenditure on an outlet. In order of the monies earned by these parties over the period of time the amount was relatively modest. Each of the parties in their various ways has contributed towards the acquisition of their assets. In terms of the property owned by the father and the business operated by him, at the commencement of the marriage, I have had regard to the evidence in that respect and I find he made a significant contribution, although the mother has contributed since in terms of her other contributions and in terms of her improvements to that property and her earnings as a professional.
The contributions by the father at the commencement of cohabitation were far greater than that of the mother but it is not an arithmetical calculation it is a contributions based assessment.
Accordingly having regard to the evidence, in particular the significantly greater contributions by the mother since separation in terms of the father’s occupation and use of the matrimonial home and in terms of the increase in the mortgage over that period of time, I am satisfied that on a contribution basis there should be an adjustment as to 45 per cent to the mother 55 per cent to the father.
Section 75(2) factors
The only significant factor with regard to s75(2) in this case is the earning disparity. The mother earns about $80,000 per annum as a profession. The father earns about $30,000 per annum in terms of his work as a handyman. However he has the capacity to earn more and it may well be that he could, in all of the circumstances, earn up to $40,000 per year.
Another factor I have to had regard to is that the mother is taking a larger sum in superannuation (neither party is seeking a splitting order) which are funds not available to her into the future.
The father asserts that the mother’s children’s application is based on child support. I do not accept that submission.
Having regard to the income factors and my concerns about the father’s evidence I believe there ought to be an adjustment of 3 per cent to the father with regard to the other factors.
Just and equitable
As a consequence of the findings and determinations made in these reasons the father shall retain the following property:-
M property
$720,000
Toyota Hi-Lux
$7,000
Furniture & effects
$3,000
Tools of trade
$3,000
Father’s proceeds of sale of Saab motor vehicle
$500
Father’s NGS superannuation
$6,684
Father’s R.E.S.T. superannuation
$6,689
Total
$746,873
Liabilities
Mortgage M property
$249,203
Net Balance
$497,670
The mother will retain the following:-
2007 Suzuki swift $16,500 Mother’s furniture & effects $5,000 NAB shares $1,584 Jewellery $2,500 Mother’s AMP superannuation $19,378 Mother’s Colonial superannuation $9,899 Total $54,861 Liabilities Companion Credit Union $3,500 ANZ visa $7,257 Commonwealth Mastercard $7,303 GE Credit Line $4,617 American Express $5,795 Total $28,472 Net Balance $26,389
The effect of a split of the property to 58 per cent to the father and 42 per cent to the mother will mean the father would be entitled to $303,954 and the mother would be entitled to $220,105.
The father would need to pay the mother the sum of $193,716 to give effect to these orders.
The father has paid parts of the mortgage since separation (the father having occupation of that home since that time). As the father continues to occupy the home and as the home will be available for him to occupy until its transfers to him or its sale pursuant to the orders, it seems only appropriate that he meet the mortgage repayments to the extent that the mortgage does not increase. Accordingly I will make orders to that effect.
Similarly he should meet council rates, water rates, land tax (if any) and insurance on the home pending the transfer or its sale. I will also make orders in those terms.
The effect of this will be that if the father decides that the property ought to be sold, in the event he is unable to pay the mother her entitlements in accordance with the orders, he would still be responsible for the mortgage or any amount of the mortgage in excess of the $249,203 (excluding any bank fees or discharge which would be deducted from the joint proceeds of sale) and would be responsible for the payment of rates etc. so any adjustment would be against the father’s entitlement to such funds.
The mother is entitled to $193,716 out of the agreed value of the home at $720,000. The mothers share is in effect to give her 27 per cent of that agreed valuation. If the home is to be sold then the mother is entitled to 27 per cent of the net proceeds after payment of selling expenses (solicitor, auctioneer and real estate agent) but before payment of the mortgage or adjustment of rates and taxes.
Having had regard to all of the factors I consider this outcome as being just and equitable.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate:
Date: 31 July 2009
Key Legal Topics
Areas of Law
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Family Law
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