Lenardi and Lenardi
[2011] FamCA 266
•11 April 2011
FAMILY COURT OF AUSTRALIA
| LENARDI & LENARDI | [2011] FamCA 266 |
| FAMILY LAW - PROPERTY - Superannuation FAMILY LAW - PROPERTY - Settlement in relation to marriage FAMILY LAW - PROPERTY SETTLEMENT - Contributions - Property acquired before marriage - Just and equitable - Future needs - Financial agreements FAMILY LAW - SPOUSAL MAINTENANCE - Factors considered FAMILY LAW - CHILD SUPPORT |
| Chorn & Hopkins (2004) FLC 93-204 Townsend & Townsend (1995) FLC 92-569 Farnell (1996) FLC 92-601 Gartner [2000] FmCA 793 Pierce & Pierce (1999) FLC 92-844 Tomasetti (2000) FLC 93-823 Black & Kelner (1992) FLC 92-287 Weir & Weir (1993) FLC 92-238 Beven (1995) FLC 92-600 |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPLICANT: | Mr Lenardi |
| RESPONDENT: | Ms Lenardi |
| FILE NUMBER: | PAC | 1472 | of | 2007 |
| DATE DELIVERED: | 11 April 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATE: | 4 - 7 May 2009 2 July 2009 |
| LAST WRITTEN SUBMISSIONS: | 28 July 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton |
| SOLICITOR FOR THE APPLICANT: | McPhee Kelshaw |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Family Law Matters |
Orders
That within two months of the date of these Orders, the wife pay to the husband the sum of $517,190.
That the wife shall do all things and sign all documents, including payment of all fees, to ensure that the husband is discharged from any liability to the ANZ Bank in respect of loan accounts numbered … and the mortgages secured over the properties hereinafter referred to.
That upon compliance by the wife with the preceding paragraphs, the husband shall provide to the wife appropriate documents in registrable form necessary to transfer to the wife his right, title and interest in the following properties:
(a) … O Street, Suburb L;
(b) … F Street , Suburb G; and
(c) … E Street, Suburb B.
That in the event the wife fails to comply with orders (1) and (2) above, the parties shall forthwith do all things and sign all documents necessary to sell by private treaty at a price agreed between the parties the following properties:
(a) … O Street, Suburb L; and
(b) … F Street, Suburb G.
That upon completion of sale of those properties the monies received shall be applied as follows:
(a) In any necessary adjustment of rates;
(b) In payment of all agent’s fees and commissions properly incurred in such sale (including, if appropriate, auction expenses);
(c) In payment of all legal costs and disbursements properly incurred in such sale;
(d) In payment to the ANZ Bank in the amount secured over that property by way or mortgage or other encumbrance;
(e) In payment of land tax presently outstanding in an amount of approximately $32,887;
(f) To the husband of a sum equivalent to 95 percent of the pool of monies created by the sale of those properties;
(g) In payment to the wife of the balance then remaining.
That the wife shall simultaneous with payment to her in accordance with paragraph (5) above, do all things and execute all documents, including payment of all fees, to ensure the husband is discharged from any remaining liability to the ANZ Bank in respect of any loan, mortgage, or encumbrance whatsoever, and particularly any loans secured over the property at … E Street, Suburb B.
That upon payment to the husband of the amount required to be paid to him pursuant to order (1) above, or in the alternative order (5) above, the husband shall do all things and sign all documents necessary to transfer to the wife his interest in jointly held ING shares.
That for the purpose of implementing the sales referred to in the preceding paragraphs the following shall apply:
(a) The legal work associated with the sales of the properties shall be conducted by a solicitor or licensed conveyancer agreed upon in writing by the parties provided that if the parties are unable to agree in writing and such disagreement subsists for a period of not less than 7 days, the legal work shall be conducted by the husband’s solicitors;
(b) The real estate agent conducting the sale of the properties shall be as agreed in writing between the parties provided that if the parties are unable to agree in writing and such disagreement subsists for a period of not less than 7 days, the parties shall do all things necessary and each pay half of all fees necessary to have the identity of the real estate agent determined by the President for the time being of the NSW Chapter of the Australian Institute of Valuers.
(c) The listing price and sale price shall be as agreed in writing between the parties provided that if the parties are unable to agree in writing and such disagreement subsists for a period of not less than 7 days, the parties shall do all things necessary and each pay half of all fees necessary to have the price in dispute determined by the President for the time being of the NSW Chapter of the Australian Institute of Valuers.
That in the event that contracts for sale have not been exchanged (if necessary to implement these orders) within four months of the date of these Orders, the parties shall thereupon sign all documents and do all things necessary to ensure that the properties or either of them as remains not the subject of a binding exchange for contracts at the date specified, to list the unsold property for sale by public auction with an auctioneer agreed upon between the parties at a reserve price agreed upon by them.
That upon completion of the sale of either property by public auction, the proceeds of sale then arrived at shall be dealt with in accordance with paragraphs (1) and/or (5) of these Orders.
For the purpose of implementing any auction pursuant to the preceding paragraph the following shall apply:
(a) The auctioneer conducting the auction of the property(ies) shall be as agreed in writing between the parties provided that if the parties are unable to agree in writing and such disagreement subsists for a period of not less than 7 days, the parties shall do all things necessary and each pay half of all fees necessary to have the identity of the auctioneer determined by the President for the time being of the NSW Chapter of the Australian Institute of Valuers.
(b) The auction reserve price and auction sale price shall be as agreed in writing between the parties provided that if the parties are unable to agree in writing and such disagreement subsists for a period of not less than 7 days, the parties shall do all things necessary and each pay half of all fees necessary to have the price in dispute determined by the President for the time being of the NSW Chapter of the Australian Institute of Valuers.
The reserve price for any auction shall be as agreed between the parties. The actual sale price shall be agreed between the parties. In the event that the parties cannot agree upon both reserve and a sale price, that reserve and sale price shall be as nominated by the auctioneer on the date of the auction.
Pending sale of the properties referred to in the preceding clauses the parties shall do all things and sign all documents necessary to apply the net rental income received toward the reduction of mortgages secured over the properties and the payment of council and water rates and building insurance for the properties and the wife shall pay any deficit between the expenses associated with the properties and the net rental income.
That in relation to the funds currently held in ING Account 6 in trust for the child B and in ING Account 5 in trust for the child J, the parties shall do all things and sign all documents to do the following:
(a) The name of the account holder shall be changed to the parties joint names as trustees for the children/child;
(b) The account details shall be changed to specify that monies can only be withdrawn from the accounts with the signature of both parties.
That within 1 month of the date of these orders that the wife deliver to the office of the husband’s solicitors the following items:
(a) The husband’s Passport;
(b) The husband’s certificates including:
(i)Certificates relating to Martial Art 1 including grading certificates;
(ii)Certificates for work related courses and training.
(c) All documents in the husband’s sole name or addressed solely to him including personal correspondence, tax records, bank records and credit card records.
That within seven days of the date of these Orders, the husband make available to the wife original or negative photographs in his possession relating to the parties and the children or any of them, together with any videos or DVDs in relation to the children or the parties.
That the wife shall at her own expense, and within twenty-eight days from the date of receipt, make such copies as she wishes of the material provided to her and shall, no later than twenty-eight days of receipt by her, return that material to the husband.
That subject to the preceding, that the husband is the sole owner in law and in equity as between himself and the wife of all items of personal property, financial assets and financial resources currently in his power, possession or control other than as specifically dealt with elsewhere in these orders.
Subject to the preceding, that the wife is the sole owner in law and in equity as between herself and the husband of all items of personal property, financial assets and financial resources currently in her power, possession or control other than as specifically dealt with elsewhere in these orders.
That the wife’s application for a departure from administrative assessment of child support be and is hereby dismissed.
That the husband’s application for spousal maintenance be and is hereby dismissed.
That liberty be granted to either party to restore the matter to the list in relation to the implementation of these Orders upon giving seven days’ notice to the other party and the Court.
That all outstanding applications not specifically referred to and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six days from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Lenardi & Lenardi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: PAC 1472 of 2007
| Mr Lenardi |
Applicant
And
| Ms Lenardi |
Respondent
REASONS FOR JUDGMENT
Property
I have already dealt with the historical background to this matter and set out the parties’ documents in a previous judgment delivered on 8 December 2010. In that judgment I dealt with issues of credit and the evidence of the parties. I accordingly reproduce paragraphs 1, 2, 298 of that judgment.
This matter has now occupied four hearing days before me. It is a remarkable matter in that the parties have expended enormous amounts of money, nearly $500,000 as a combined total, to fund this litigation. The issues are the future living arrangements for the parties’ sons J born in April 1998 and B born in September 2003. At the present moment, both children live with the mother on a basis whereby they spend nine days in fourteen with her and five days in fourteen with the father. The wife’s position is that she wishes this present arrangement to continue. The husband says that the arrangement should be reversed so that the children spend nine days with him and five days with their mother.
In addition, the parties are in dispute concerning the distribution of their property. The property consists of real estate, personalty, motor vehicles, investments and cash monies. The parties have modest superannuation entitlements.
There has been considerable argument as to amounts to be added back to establish the pool of assets available for distribution. There are also issues of costs following orders reserving costs made in earlier interlocutory proceedings.
Brief Background
Husband born in 1971;
Wife born in 1972;
Parties marry in 1996;
J born in April 1998;
B born in September 2003;
Parties separate 2 March 2007;
Parties divorce 21 April 2008.
The Parties’ Applications
The husband commenced these proceedings with his application of 15 March 2007. Subsequently he filed an amended application on 4 March 2009. The father amplified his position in both written and oral submissions made to me at the conclusion of the evidence and in subsequent documents filed in relation to the matter.
The wife for her part filed a response on16 April 2007 and thereafter filed a further amended response on 25 March 2009.
The wife also provided written and oral submissions in respect of the orders that should be made.
The Affidavit Material of the Parties
The husband filed and relied upon the following affidavits:
a)His own affidavit sworn 9 April 2009;
b)Further affidavit of the husband sworn 23 April 2009;
c)Statement of financial circumstances of the husband verified by affidavit sworn 8 April 2009;
d)Affidavit of Z of 20 April 2009;
e)Affidavit of Mr A sworn 21 April 2009;
f)Affidavit of Mr G sworn 9 April 2009;
g)Affidavit of Dr M sworn 21 April 2009.
Each of those deponents gave evidence in the hearing before me.
The wife for her part relied upon the following material:
h)Her own affidavit sworn 7 April 2009;
i)Her statement of financial circumstances verified by affidavit sworn 7 April 2009;
j)Affidavit of Mr W sworn 7 April 2009;
k)Affidavit of Ms K sworn 7 April 2009.
The wife and Mr W gave evidence. Ms K, the wife’s mother, was not required for cross examination.
Reports
Reports of Dr H of 23 June 2008 and 18 March 2009.
Court Orders
A very significant number of orders have been made in this Court and in the Federal Magistrate’s Court to date. Orders were made in the Federal Magistrate’s Court on 19 April 2007.
In this Court orders were made on 19 November 2007, 31 March 2008, 28 August 2008, 26 September 2008, 10 March 2009, 11 November 2009.
The Husband’s Case
It is the husband’s case that the boys should spend the majority of their time with him. He asserts that the wife is inflexible and refuses to involve him in decisions concerning the boys. Effectively he asserts there is a total failure of communication.
A major issue between the parties has been both boys’ participation in sporting activities. The father asserts the mother does not wish to have the boys actively involved in sport, but rather favours improving the children’s academic standards. She had arranged for J to be involved in coaching. The husband says, as I understand him, that she has done this not of necessity but rather to prevent J from participating particularly in football and Martial Art 1.
As to property, the husband has asserted that the wife is incorrect in relation to when the former matrimonial home was purchased. It is his case that his parents loaned him $50,000 for the acquisition of the property acquired by him prior to the parties’ marriage. The wife challenged the husband’s evidence in this respect and it was suggested by her that any document evidencing the arrangement between the husband and his parents may not have been a proper document.
The husband asserts that at separation the wife took an amount of approximately $188,000 from accounts of the parties and accounts in the children’s names. It is the husband’s case that the wife has never properly accounted for the use of these monies and in her voluminous material in this regard, she is in error.
It is his case that he is a sufferer of bipolar disorder but he has for some time, and continues to be, compliant with medication and accordingly not suffering adverse effects as a result of the condition. He asserts that in the past he may have acted inappropriately particularly in respect of a number of extra marital affairs that he conducted while effected by his condition.
The Wife’s Case
The wife for her part asserts that the children ought to spend the bulk of their time with her and she should be largely responsible for major decisions concerning the children, notwithstanding that each of the parties appears to concede there should be equal shared parental responsibility.
The wife points to a number of instances where she says the father has refused to communicate with her adequately or at all in relation to matters such as notifying her of changes to residential address. It is her assertion that the husband has on a number of occasions said to her that he does not propose to do these things and he does not need to do them.
As to property issues, it is the wife’s case that she has been a) the effective manager of the parties’ finances and b) during at least the latter part of the marriage, the party who has earned significantly more by way of income.
The wife makes serious assertions and allegations in respect of the advance to the husband by his parents. She asserts that this amount was a gift. It is her evidence that the husband’s mother indicated this to her in a conversation. Further she asserts that the acknowledgment purportedly entered into between the husband, his parents and brothers is not a truthful and accurate document. Rather she says she is concerned that it was a document compiled by Mr and Mrs Lenardi Senior’s solicitors after the event and back dated to support the husband’s version of events i.e. that the monies were a loan. I was concerned at this aspect of the matter and directed that the solicitor involved, Mr U, be informed of the allegations made against him by the wife. Mr U indicated in a letter to the Court that he did not propose to appear and answer the charges. This is a matter I will return to later in these reasons for judgment.
The wife’s case concerning monies taken by her from various accounts is, as I understand it, that she needed to do this to preserve the funds.
The Hearing before Me
A number of persons gave evidence in the matter and the husband and wife particularly gave evidence on a number of occasions, allowing for other witnesses to be interposed as required. The witnesses who gave evidence and the order in which they gave that evidence is as follows:
a)The husband.
b)The wife.
c)Dr M, the husband’s treating psychiatrist.
d)Mr G, counsellor.
e)The wife.
f)Dr H, the Court’s expert.
g)The husband.
h)The wife.
i)Mr W.
j)Z.
k)Mr A.
The husband was the first witness. He gave short oral evidence in chief and was then cross examined by the wife’s counsel. He indicated that the current arrangement was for the children to spend nine days a fortnight with the mother and five days with him. He wanted that situation reversed so that the children spend nine days a fortnight with him and five with their mother. He indicated that his desire was for a short, sharp change. He said he knew the boys wanted more time with him and that more time with him was in their best interests. He said they had spent more time with their mother since separation. He agreed there would be a change if the boys were to spend nine nights a fortnight with him. However he said he believed the boys would adapt quickly.
It was put to him in March 2008 he had said that both boys had said they were scared of their mother as she hit them every day. He said he had taken this from what the boys had told him and also that the mother shouted at them. Asked if J was scared of his mother still, he replied yes he told me that three to four weeks ago and he has told me lots of times. I say to him that there is no need to be scared of mum. I believe he has some reason to be scared.
The witness then asked why he would say that if he did not believe it to be true.
He agreed he had seen Dr H’s two reports. There appears to be no mention in those reports of the children being scared of the mother. He does not believe the children are playing the parents off against each other.
B has said he is scared of his mother but not as frequently as his brother has said this. It is done approximately every two months. He says his mother yells and screams at him. He has not said that he has been hit every day since March 2008. The father continues to believe that the mother hits them on a daily basis.
He says he heard sounds of smacking over the telephone about twelve months ago.
He said he has smacked the children on their bottoms especially J on about six occasions but not in the last year. He recalls smacking B once when his behaviour was not acceptable.
He believes the mother’s discipline is making the boys’ scared. He said he knows Dr H thinks that he (the father) may have blown things out of proportion. He could not say how many times he had spoken to his son about being hit by Mr W. He said that in January Mr W had hit J in the jaw and twisted his neck. He said he had dealt with this situation appropriately. After hearing of what had happened, he spoke to his solicitor, the police and the Department of Community Services, in that order. He was aware that police needed to interview his son. He was not aware of a DoCS interview. He thought of contacting the mother but considered it best to contact his solicitor first.
He has read the version of the mother and Mr W but does not accept that. J had told him he had been backhanded. He said that the situation was that Mr W had told him to stay in the car but J got out and back into the car at which point Mr W backhanded him then grabbed his jaw. He said it was first mentioned to him two hours after he picked the boys up.
It was put to him that if it were serious, he would have expected to have been informed earlier and he said he could not say. On a later occasion there was further conversation regarding the matter. He (J) said that he was scared and did not know what to expect. He said that whatever had happened did not really hurt and was more of an accident. This was different to what J had said on the earlier occasion. He did not inform anyone of the subsequent different version. It was put to him he did not ring the police because he did not want to put the lesser or more exculpatory version to police. He said he wanted to leave it to police.
He feels the boys are still a little bit scared.
He said he did not have a problem with Mr W being around the boys. He said he had no problem with the changeover being effected between he and Mr W but the boys had a problem with that.
He was taken to the notice of family violence filed on 19 December 2008 and agreed there is no mention of the more exculpatory version in that notice. He indicated he wanted to portray the occasion as serious.
He then gave evidence of correspondence relating to attendance at a birthday party. He said that he had tried to persuade his wife by correspondence to allow J to stay overnight on the occasion of the birthday.
He said he would leave school problems to his wife. He could detect problems with school work. He indicated that his son needed extra help with maths and said he had subsequently spoken to his teacher. When asked about a seven page letter he had written to the school he said he did not recall that letter but agreed the letter was in his writing. He agreed that much of the letter dealt with J’s complaints about his mother and her household.
He said that he had wanted a counsellor to assess the issues and help his son. He said J was not coping after separation and he thought the counsellor would give him (J) tools to work with.
He indicated a counsellor had seen J once and they had then spoken on the telephone. The counsellor would continue to see J. It was put that he wished to paint the wife in a bad light which he denied. It became a matter of concern that after the call with the counsellor, the father understood there was to be no further session. He said that J was not opening up. He indicated there should be a record of calls.
He agreed that in 2008 the wife had arranged tutoring in English and comprehension. The yearly report for 2008 indicated a need for work. J spoke of a need for maths tutoring and the father contacted the teacher and was told that it would not hurt J. At the end of 2007 the teacher had said that he was doing as well as possible having regard to the breakup of his parents’ marriage.
He said there should be an equal balance of school work and sport. He said he and the mother were able to agree up until separation. He agreed that if the children were with him there would be more emphasis on sport. The husband then gave some evidence about schooling but eventually agreement was reached as to the children’s schools and I do not propose to set that evidence out in its entirety. However he agreed he had had contact with P School by means of a letter from his lawyers setting out matters of concern. The child was not settling in, was suffering nightmares and was bed wetting. He was unable to say why he had used lawyers for this purpose.
Further he said that he had seen a teacher in the first two weeks and P School and the solicitors had written some time after that on 25 February. It was put to him that he had been told there was no need for counselling because the staff were not seeing the difficulties that the father observed. He agreed that by the end of term the child was settling in.
When asked as to who had been the person performing most of the caring, he said that he was the main carer. J had been a difficult baby and mother and child had gone to Family Care Centre 1. The father said he attended on about three occasions with her.
It was put to him that he had called the mother an idiot and told her she should know what to do. He denied this. He agreed the mother did not work for twelve months following the birth. He said at the time he was driving trucks and working shifts.
He agreed she was the primary carer at that time but not so in the second year. The child was attending Suburb F day care and the mother was responsible for all drop offs and two or three pickups.
He agreed the parties separated for a short time in 2002 at which time he was having a relationship with another woman. He indicated that this probably had to do with him suffering from bipolar disorder.
He said he had had three or four sexual partners during the marriage and these relationships were always conducted away from the home.
Notwithstanding these relationships he said that he was always available for his children and the affairs were conducted during the day when the children were at school.
He was not sure whether he had been present at hospital on an occasion. It was put to him he refused to stay home. He said no I would not do that. He agreed there had been a number of child care providers. He said he had organised a centre in Suburb G.
He said that he had worked for two years up to separation as a garbage truck driver on night shift. The latest start was 10pm with a finish at noon the next day. The morning care of the children was performed mainly by the wife.
On 2 March 2007 violence was alleged and the wife applied for an apprehended violence order which was subsequently not pressed or proceeded with. He agreed that since separation, most of the care of the children had fallen to the wife.
He spoke of an episode on 21 April when they met on a football ground. He thought he had taken them swimming that day. He had stopped taking them to the swimming centre the wife had previously used. It was put to him that he had never taken the children swimming and he asserted that he had. When asked about a communication book he said it was never used by him, that the parties can now communicate by email.
He spoke of his girlfriend with whom he said that the relationship is not serious. Certainly that person did not give evidence before me.
He said a trip had been arranged for the wife to travel with the children to Perth prior to separation. He denied that he had cancelled that trip. Indeed he said the trip was for two adults and two children, three of whom were to travel on points and one of whom was paid for. He was asked why he redeemed the points and he said that they got put into her account.
When asked about “stink bombs” he said he had purchased those and was not aware that they had been taken to the mother’s home. He said when they bought them he did not know what they were and said they had been taken out of his room without his knowledge.
When taken to the wife’s affidavit at par 115 where the child is reported to have said that he had no chance to do homework because we were at football and the father had indicated it was the mother’s job to make sure homework got done, he did not accept the child had said this to his mother.
He said that he took J to a doctor for a referral, that he told the wife she did not go. He knew the wife did not want the child to have counselling. She believed the husband was blowing things out of proportion.
J was involved in Martial Art 1.
He said that he was aware that the mother wanted him to attend a course but felt he had done enough and does not need any course.
He spoke of J breaking his hand at school and the mother taking him to see a doctor and obtaining a certificate that there was to be no sport for some weeks. He agreed that a few days later he had taken the child to Martial Art 1 but the child did not participate. He denied saying he will do what I say.
It was put that he (J) participated in martial arts within four weeks of breaking his hand. The husband denied this. She had rung once about x-rays. It was put that he told her to get the cast taken off and he said that he did not say that. He said the cast came off when he was with me in the holidays. The doctor who took it off said take it easy.
He said that in September 2008 he had taken J to Dr C when the child was off colour and having headaches. It was put to him that he had said to the wife that he could take him where he liked. The wife makes reference to this in paragraph 162 of her substantive affidavit. The husband denied it.
On B’s birthday in September 2008 he agreed he would not leave the boys with Mr W. He denied saying hell will freeze over before I leave them with him. It was put to him there was an agreement to return the boys at 6pm and they were returned at 6.30pm. He agreed. He said the boys did not want to go inside until the mother arrived.
He said he would try to accept Mr W’s part in the boys’ life and will drop the children off to him.
When taken to paragraph 174 of the wife’s affidavit where it is alleged B had told his mother he got into trouble from his father and he was hit in the car for kissing the mother and Mr W, he said that it did not happen and he did not know what the child had said.
He was asked about 18 November 2008 which was mufti day at school. The child attended in school uniform. There was other clothing available but it totally slipped the father’s mind. He admits the child may have been teased at school. He did not accept that the child had told his mother that the father had stopped him wearing civilian clothes. At first he said he did not know of the mufti day; later he said he knew from a newsletter and forgot. He denied saying that if he sent the child in other than school uniform the mother would steal that clothing.
He said he moved in late 2008. He gave her his landline telephone number when it was connected. He said he would not provide his personal mobile number. Later he said that if he kept it connected he would give it to her. When asked about the episode on 16 December 2008 (referred to in par 185 of the wife’s affidavit) where the wife was contacted by J’s school to advise that J was unwell and the mother could not contact the father, he said that he was always able to be contacted and the wife was not telling the truth.
He said that he had invited her to B’s ceremony for his yellow belt. He denied saying that if the children did not say that they wanted to live with him he won’t see them anymore or take them dirt bike riding. He said that he had never spoken to the children about them spending “fifty:fifty” time with each parent (see par 202).
As to an allegation that he had made nun chucks with the children, he denied that he had said to the wife he did not care if the making of nun chucks was legal or not, that they had been made and were going to be used in Martial Arts 1 practice. The husband however conceded that he had made nun chucks.
In answer to the wife’s assertion that when she said she was not happy with this he replied that there was nothing she could do about it and he would make those decisions. He denied this having been said. However he conceded that the nun chucks had been made but said the boys had full protective gear. He said he knew they were illegal and he kept them in his bedroom.
He then went on to say that the mother had never mentioned this aspect. I do not believe this.
He said the nun chucks were not used at the martial arts club, that he uses them with J at home. He considers this to be okay if J is wearing full protective gear.
He said he had changed Martial Arts 1 clubs, that the present club was a real fighting club.
He agrees that he did not tell her that he was changing the boys’ club. He did indicate to the wife that he was thinking of doing so. He said he did speak to her after the change to confirm it had been made. He said the change of clubs meant the boys had more opportunities.
He said he had met with a teacher and she did not express any concerns.
He said he had never spoken to the boys about Court. He said that when J sees him in a suit, he knows where I am going. He said that when the mother was pregnant with J, he did not ring her to say he was going to drive off a cliff and kill himself. He said that he has spoken of suicide but has never thought to attempt it.
He said that a Fr PP attended at the house, not at his request.
He said that the medication he is taking is Epilom and Edronax. He said that he was a non-drinker and cannot remember when he last had a drink. He was aware that alcohol would have an effect in combination with his medication. He said that he had lost his license four or five times, the last time being approximately ten years ago.
He denied the wife’s assertion at par 296 of her affidavit that he had told her that he had invited Ms Y to the matrimonial home two or three times a week to have sex with him. The wife asserts that he told her that he and Ms Y were in the parties’ bed and that she (Ms Y) was there for about two hours. The wife further asserts the husband said that this has been going on since January 2007. She says that he said he had taken J to Ms Y’s house so he could go swimming with her son.
The husband said that he did not recall any talk about private schools and later said that he remembered one discussion. He said that he would make up work hours and work usually between 8am and 4pm. He can start at 9am and finish at any time. He said he would use day care as required.
He said he has no objection to the wife having a month overseas in 2012. He is aware she wants tutoring to continue. What she does is her concern when the children are with her. He is aware that J is receiving tutoring in maths and English. He has been told by teachers that his son is doing fine. He does not believe that his son needs extra tuition.
He said he received a loan from his parents which he believes was interest free in 1994. He said that his father has made a call for repayment.
He is aware that the wife says that the advance was a gift, made to both of them. She asserts that it was an early wedding gift. He asserted they were not engaged when he received the funds. He said that his parents were not available to give evidence as they were in Italy.
He said she may have spoken to his parents but he believed she had not. He said their relationship was that of boyfriend and girlfriend when he had received the money. It was put to him that he was excited and said that he had received a gift which he denied.
He made an application for a loan in August 2008. He agreed he knew he had to make full disclosure of his financial position. He said he gave information to a female bank officer. There was no question about loans. Liabilities were mentioned. He said he did his best to be accurate and that he filled out the form. He agreed that he had disclosed loans to the ANZ Bank and Commonwealth Bank of Australia. It was put that he disclosed an income of $3,735 monthly with expenditures of $1,431 per month.
It was put to him that when he made the application for finance, he did not believe that a loan existed as between himself and his parents. He said that if he had been asked proper questions, he would have told them about the money owing to his parents. I find this very hard to believe. He went on to say that his parents had given his brother T $40,000. It was put the sum was $80,000 and he was unsure, he did not know if T has repaid the whole or any part of the money from their parents. He said that T got his in the mid-eighties.
He was later referred to his own affidavit at par 38. In that paragraph he deposed to the loan to T having been made in 1987. In par 39 of that same affidavit, he indicated that the loans to his brothers (T and Z) were freely discussed within the family. However he was unable to say if he knew that T had repaid the whole or part of the monies advanced by their parents. To my mind, these two statements are inconsistent.
He went on to say it was not his case that his parents were seeking to assist without wanting to be repaid.
Notwithstanding that the agreement that he produced required repayments, he said that he had never repaid any part of the principle or interest. The document purported to evidence the advances is Exhibit H to the affidavit of the husband. I will return to this aspect of the matter in some detail later in these reasons.
He said his mother was sixty-five, his father seventy-six and not in good health.
When taken to par 64 of his own affidavit, he indicated that the matters of income set out therein (taxable income of $348,490) was incorrect. He did not know what the correct figure was. It was put to him the wife earned more than he and he said not all that much. He agreed that since separation the wife has earned more. He was asked why he wanted her to pay maintenance; he said he did not know, he thought the Court would do it and determine for how long. He said it was to help him raise his boys.
When asked about the difference between an earlier affidavit and his later affidavit (no mention was made of the loan from his parents in the earlier affidavit) he said that it was in his notes but did not get into the first affidavit.
He conceded he knew evidence of his father requesting repayment was very important, possibly the most important single factor in regard to this transaction. He said that when he and the wife separated, the father asked for repayment a couple of months later.
He confirmed that he sold a first property in 1999 and a second property in 2005. He seems to assert that a request was made at the time of each of those transactions for repayment. He makes no mention of that in his affidavit material.
It was put to him that he did not expect his father to make a serious demand for repayment. He said he did and I find this evidence hard to believe. He said there had been further borrowings. It was put to him that he had said earlier there was no discussion of interest which he agreed to.
He said shares were owned by both parties and she signed a transfer. He said his accountant had the papers.
He asserted he owned the Australia Taxation Office $850. He had used a CBA credit card since separation for his own benefit.
He said that he had purchased for the wife firstly a VW and then a Toyota. He asserted he was a trained panel beater and that he was doing up cars for cash between 1987 and 1997. He said he could do this again but has no intention of doing so. He said he receives net per week $670. He said there is some overtime but he cannot say how often. When shown a document, he conceded that in 2008 he received overtime each week.
He then conceded that his income was $905 before tax and that after allowances for superannuation he received in hand $705. He was not sure of the shares he had owned. He was not aware of any dividends paid or payable.
He said he had borrowed from his parents to pay Dr H and to pay legal fees. He says he cannot survive on his present income and needs more for his children and legal fees. He says that he is in need. He says that when finalised he will pay outstanding legal costs.
The wife then gave evidence.
She said she had prepared her documents to be truthful. She said she was truthful to Dr H. She had kept a diary to assist.
She was shown her costs disclosure. She said she had paid into trust $58,000.
It was put to her that in cross examination of the husband, it was suggested to him he had not come to the hospital. The wife said she did not recall he was at the hospital.
She was shown hospital records which show that on 23 August both parents were present and the next day the child was sent home with his parents. The wife’s evidence was that, to her recollection, he was not there. It was then put to her that so far as her evidence was concerned, near enough was good enough. She said this was not so.
The wife said she had asked the school to see J.
She said in the second half of 2007 the husband was asking to spend more time with the children. The wife said she did not care about money, her bills were paid. She said she had never discussed the cost of these proceedings with the husband. She then said that she will not be going to counselling and that the boys do not need it. It should be left to the school to decide if it was needed and if so, she will get it. She did not discuss counselling at school with the father. She said it must have slipped her mind.
She said that she knew the husband was concerned that the children were having difficulties coping with the separation. She said that on 7 May 2007, she had signed a permission slip for J to see the counsellor. When asked if on 25 July she had spoken to the school about J’s behaviour she did not recall. She said it had not been her intention or idea to communicate through solicitors. She said the husband would not talk to her and said that a legal letter was following.
She said the father had told Dr H he did not provide his new address before moving. She was not trying to convey that she had not known for a period of time but said the husband should have given prior notice. She said a letter from her solicitors dealing with diet and dress for the children was a response to her solicitors’ correspondence.
The mother said she had a positive view of the father’s parenting capacity. She agreed she had told Dr H she had not been notified of recent changes for Martial Art 1 and football.
She said J had played school football and in 2008 represented the school. He had played locally and trained and played in school time. She said she would not permit club football. She had said to the father that if school work did not improve, there would be no football. She considered this to be ultimately her decision. She agreed that tutoring had occurred because she wanted it and this was irrespective of anything said by the husband.
She said that B calls Mr W “Daddy” and she had left it to them. She said she knows it must be hurtful for the husband. After Dr H’s session, she stopped it occurring. She had seen nothing wrong before that time and it was not confusing to the child.
She said it had not stopped altogether. In the first six months of separation the children had limited time with their father. It was put to her that it was significant that the children were calling Mr W “Daddy”. She said it was not significant. She said that if the children had called somebody else “Mummy” she would not have been as upset as the father was. She thought it was appropriate to allow the children to choose. She said she had not thought about whether Mr W had encouraged the children, particularly B, to call him “Daddy”.
She was taken to various paragraphs of her affidavit, for example pars 16 - 20 inclusive and 22 - 27 inclusive. It was suggested that these were exaggerated criticisms of the father’s behaviour. She said this was not so.
In par 29 she said he was critical of her meal preparation.
The wife said that she was concerned the husband was not there but seeing other women. She said she has set out truthfully the situation in her affidavit.
She was asked about an earlier affidavit and an annexure which made reference to shared care prior to separation.
She was taken then to par 303.4 of her affidavit, where she asserted that she had received a sum of approximately $20,000. It was put to her that the wife knew that the amount was some $11,960 when she swore her affidavit. She said she had become aware of the correct figure when she received some correspondence but did not know when. She was asked when she proposed to correct the error and did not answer. It was put to her that she had never put any money from the amount received into the mortgage as she asserted. She said that she did.
In respect of par 302 where she asserted that she was working when the property was purchased, she was asked how long she had been working and she said she did not know.
She said in 1992 she was involved in litigation and in 1993 a judgment had been entered by consent for $12,500 as against her. It was put to her that she put monies received in the sum of $11,960 to pay the verdict and she said this was not so; she had paid by instalments of $500 per month. It was put to her that the amount had been paid out by the time of the parties’ engagement in November 2004. When further cross examined she said she had a clear memory of paying instalments but could not say how much. Her income at that time was about $21,000 per annum. In the proceedings when Mr S, barrister, had been involved she had paid him monies. She said that after the marriage and even before the husband became the financial controller.
It was put to her that her assertions contained in par 302 as to the advance of $50,000 by the husband’s parents were not true and the events did not occur as related by her she said that they did. She did not know at the time that her brother-in-law Z had actually received money but knows now that he already had his money. She said she did not know about the acknowledgement and that she had doubts about Mr U (the solicitor who prepared the document).
In respect of par 303.3 she was challenged as to her assertion that she had paid $11,000 towards repayment of the mortgage. It was put to her that there was no such payment and she says that there was. She conceded there was no documentation concerning this and asserted it was her contribution. Again it was put to her that no monies were paid and she said that there were. She said that she had been looking for properties and saw the parties’ former matrimonial home before the husband. She accepted that it was settled in March 1994. She agreed that 302 is incorrect where it says 2005 and should read 2004. She said she had commenced work at twenty and then said nineteen or twenty. She asserted she had a deal of involvement in acquiring the property. She does not dispute that a sum of $50,000 was provided by his parents. It was put to her she never went to the bank for a loan; she said she did not because of a judgment against her.
She said that in respect of par 309 of her affidavit that she had paid $24,000 from her own savings. She said that in mid-2005 she contributed another $10,000 to the mortgage from her funds. She said that she had paid $11,000 in cash off the mortgage and a further $12,500 in cash off the mortgage.
Dr M was then interposed by telephone.
He said that Epolim was first prescribed by the husband’s general practitioner at 200ml. He said that he had increased this dosage on initial review to 500ml twice daily. He said that dosage was not altered as at today; it had been higher in 2008. He said that at present he was happy with the husband’s mental state. The prescription had been for bipolar disorder. At page 6 of his report he had set out his diagnosis.
He said the optimal spacing of visits at present was about six-weekly; it has been monthly at times. The scripts issued cover a considerable period with two repeats. He agreed he may have sent out scripts by mail. He was not able to say whether or not the husband would ever have had sufficient medication for five months. He agreed that between 26 October 2006 and 27 March 2007 he may have forwarded scripts. As to auditory hallucinations, the husband was hearing voices intermittently. The husband believed he was hearing the devil. He was told to hurt himself but there was no suggestion that the voices told him to hurt others. So far as tourette’s syndrome was concerned; there was a facial tick but no treatment was prescribed.
Dr M was aware he had seen a Ms N. Dr M said he was not familiar with whether he was seeing a counsellor but he may have mentioned it.
Dr M said that the husband told him his alcohol intake was social. As to alcohol’s effect on bipolar disorder he said alcohol could be consumed without disastrous consequences. He said Epolim can magnify the effect of alcohol.
He said he had also prescribed Edronax since 2006.
He said that the wife had endeavoured to speak with him on several occasions regarding the husband. He did not have the husband’s consent to respond to those calls; indeed the husband declined to consent. The husband indicated he was not comfortable with Dr M discussing him (the husband) with the wife.
Mr G was then called by telephone and gave brief evidence about his observations as to the effect that separation can have on children. He spoke of the children becoming upset and disturbed. He says that their emotional wellbeing could be quite significantly affected. He said that J when he first saw him was distressed at the marriage breakdown but has improved. He expected progress in the next twelve months and beyond and expected to conclude therapy in three to four sessions. The child had been brought to him by the parents alternately. The father attends when the wife brings the boy. He said he does not know why the husband comes. Mr G said he did not recall he said he had been hit on 8 November. He thought it was the father who brought him on that occasion and spoke to him afterwards. He then said that 8 November was an error, it was 28 November. The boy had said that last Friday Mr W hit me in the face.
He said he had produced old notes in answer to the subpoena. The report did not mention a hit. He said he had recorded the boy’s explanation not mentioned in the report J hitting Mr W’s hand away. He said it was possible that hitting away may indicate some confidence.
He said that in his view it was not an episode that required reporting. He said he thought in any event that police had already been contacted.
The child was observed to be sad, angry and depressed. Mr G said that his notes record that the child reported that what was done to him by Mr W hurt a little.
He said that after the mother made allegations of bias, he decided to have little to do with both parents. The mother complained that he was treating her son without consent.
The wife was then recalled.
The wife said that she continued her belief that the husband had created the document (the acknowledgment) since the litigation started. This was done to assist his case. She was shown the acknowledgment which, as I have already said, was annexure H to the husband’s document. She said she did not accept this was a genuine document.
She had no document or other evidence to support her contention that the document had been created at a much later time than appeared on the face of the document. She said enquiries had been made; she wanted the original produced and questions answered. She accepts that that which she says is a serious allegation. She said she did not make allegations lightly and would not fabricate evidence to assist her case.
She said the parties were engaged for a year and a half. She said that she knew the settlement of the purchase of the first property was in March 1994. She received copies of settlement statements in 2007.
She conceded the date mid-1995 referred to in par 302 was incorrect. She said that she believed they had been engaged nearly two years and she was twenty-two when they got engaged. She said she was first told about the advance by the husband’s parents after he had proposed, and within days of that proposal, in November 1994. She said that until then she had no idea of how the purchase was funded. It was put to her that she had not been to the bank and she agreed but said she had had dealings with the agent in relation to the purchase. She agreed she did not know at the time of purchase how the funds had been made up.
As to par 303.3 she said that she had monies from savings in turn from wages; these were paid into an account. She said her grandmother had given her cash of $10,000. It was put that her statement about her contribution by way of savings was untrue and she disagreed with this proposition. It was put that she had never applied a cash sum and she disagreed.
It was put to her that she did not provide $10,000. She said she did. She was shown 1994 and 1995 tax returns which she said were correct and agreed that there was no mention of interest in bank accounts shown in those returns.
It was put to her that the parties had not lived together before marriage and she said that they did. It was put that both sets of parents were disapproving of the parties living together before marriage.
She said that the monies from her grandmother went to pay the mortgage not to renovate. She did not know when the mortgage was paid out. She did not recall if an amount of $15,000 constituted a separate loan. She said however that she was party to the $15,000 loan. She recalled going to the bank. She got her grandmother’s advance first. She was asked about monies provided for the wedding and it was put to her that she was making her evidence up in this regard which she denied. She said she had seen documents before court on Monday that had been in boxes with her. She was shown Exhibit 6.
She said the husband acquired an overseas make motor vehicle after marriage, he also had a Ford. He had done up cars before marriage at his parents’. He did not pay any money derived from that source towards the mortgage. He applied rent and his wages. He used money from the cars to fund drag racing.
It was put to her that the sale price for the first property was $168,000 not $185,000. The wife said the amount received was $162,000 net.
Where she gave an estimate of tax deductions in par 322 of her affidavit she said these were based on earlier deductions.
It was put to the wife that at separation she took $188,000 from the accounts. At par 397 of her affidavit the wife detailed amounts so dealt with for a total of $188,797.73. The wife was then asked about the amount paid to an architect Mr BB. Asked specifically about Account 8 she said monies in that account were used to pay the mortgage and school fees.
She was questioned about her costs disclosure. She said her salary was paid into her cheque account and the sum of $31,000 transferred. She said that she kept joint monies in a separate account.
She said that the boys can tell some fibs. She agreed that she had read in a report that J expresses a wish to live with his father. She said the child had been upset when she would not let him go to his father. She said that she and the husband could not agree on the husband’s time with the boys. She had read the judgment of Federal Magistrate Lindsay and expected there would an agreement as to increase. She had ongoing concerns as to the husband’s mental health. She agreed that she opposed all increases proposed by the father. She agreed there would be no time other than as provided by orders.
She was then taken to portions of the report of the expert Dr H of 23 June 2008. Taken to par 92 she said it was not obvious that the child was distressed by restrictions placed on his activities by his mother. This is a statement in direct contradiction to Dr M’s observations. As to par 98 she accepted Dr H’s opinions as to the husband’s own insight into his disorder and particularly said the father was compliant with treatment. Taken to par 100 of that report she said that she allowed J to play football for his school, some six matches. She said the children attend practice at school. She said she had attended a swimming carnival and walkathon but not a football match.
Significantly the mother said that she did not accept that the restrictions she placed on the children’s sporting activities were a matter of significance. She said that if she had known the restrictions were having an effect then she might have acted differently. She said she was trying to balance all factors and matters.
As to par 72 of the same report which spoke of J’s anger she said that the anger was not with her, he was frustrated with his brother. If he was angry he was not telling her. She agreed this will be a terrible situation. She said the husband had been angry but she could not recall when this last occurred. She then suggested it would have been December 2008. She does not know if the child is angry. The child is now not articulating wishes to see the father.
She said she did not agree with Dr H’s indication that J’s primary attachment was with his father. She denied that she had ever said that the child could live only in one house. She denied that she had ever said that she was the parent and her decision was final.
She said the boys might be happier if they see more of their father but this would not be in their best interests.
She said she was disturbed at the opinion of Mr G and wanted to change counsellors. She denied she was dismissive of the father’s role. It was put that the wife had said that the legal process would take a very long time. The mother denied that she had said I have lots of money for legal fees. The mother said that she had called him abusive names but not in the precise terms alleged by the husband. Speaking of a telephone conversation with J on 6 February 2008 she said he was not crying or angry with me. The child was upset because I listened in to his phone call. She said she did this because she was concerned they would go camping against orders. She had never said to her son to ring his father back and give an excuse for crying. If she had done so, that would be horrific.
She said she had carried out her own research and spoke to the school counsellor twice in mid-2007.
She said that she did not think that bringing Mr W into the household with herself and the children had any effect. There had been an intimate relationship from late July 2007 and within eight weeks he had moved in with her and the boys. She agreed she told Dr H that their present accommodation was perfect.
She said that in 2008 the choice was between club football or tutoring. She was asked if she could move the tutoring to Tuesday she said in 2009 but not 2008 this could be done. She decided tutoring should override football. She made the final decision in that regard. She said she agreed about Martial Art 1.
I take into account that the wife has available to her as a resource the shares in Company 5 which she cannot presently deal with, but which have an assigned value by the company of $58,280. I am satisfied that when the wife complies with the preconditions she will be able to realise at least this amount from those shares.
The next matter I consider to be of importance is s 75(2)(c) dealing with whether either party has the care and control of a child under the age of eighteen. By orders I have made, the parties are to have equal shared parental responsibility for the children and the children are to spend equal periods of time with each of their parents.
I am satisfied that the wife, having a greater income than the husband, will find the impost of the expenses of the children less onerous than will the husband. However I am satisfied that both parties will be required to apply significant portions of their income for the benefit of the children.
Section 75(2)(d) I have made comment as to the disparity of the parties’ incomes to the point of boredom. I am satisfied that both parties have the ability to support themselves and their children whilst the children are with them.
So far as I am aware on the evidence there is no responsibility imposed on either party to support any other person - s 75(2)(e).
The next matter for consideration - s 75(2)(g) - refers to the standard of living enjoyed by the parties. The parties’ standard of living has always been modest, notwithstanding significant amounts being received into their household by way of income, and their capacity and ability to invest in property dealings. There is nothing before me to indicate that this standard has changed for better or worse since the separation of the parties.
I am satisfied that s 75(2)(h) has no application; both parties are in employment. There is no suggestion on the evidence before me that either party wishes or seeks to undertake ongoing or further education to improve themselves and to establish themselves in order to obtain other or additional income.
These orders do not affect any creditor - s 75(2)(h)(a)
Section 75(2)(k); I am satisfied that during the marriage the husband was at first the earner of an income superior to that of the wife. However as time went by in the marriage and the wife’s professional capacities were recognised, she was able to earn greater and greater income until the point was reached that her income significantly outstripped that of the husband. I am satisfied that the disparity between their incomes will continue for the foreseeable future.
I take into account that the wife has a partner in Mr W - s 75(2)(m). They have lived together since shortly after separation. I am not aware of Mr W’s exact or precise financial situation. I am however satisfied that he is a member of the household, has been for some time, and is able to give financial and non-financial support to the wife as required.
I must weigh these matters as best I can, recognising the real difference in their nature and scope. I must however weigh the matters globally as I am required to do ( see Tomasetti[10]).
x)[10] (2000) FLC 93-823
It is put to me by the husband’s counsel that the wife has been less than forthcoming and accurate in the presentation of her case. Relying on Black & Kelner[11] and Weir & Weir[12] it is put to me that I should find that the wife has deliberately failed to make a proper disclosure of her assets so as to conceal from the Court the true state of her affairs.
xi)[11] (1992) FLC 92-287
xii)[12] (1993) FLC 92-238
I have commented at length in these reasons for judgment as to the exact, precise and intricately detailed manner in which the wife has presented parts of her case. Her production of documents has been exhaustive. Yet when questioned about matters such as the amount actually received from her compensation claim, she was inaccurate and in that particular case I believe had known that the figure she asserted was not correct for some little time before she gave evidence.
I remain confused as to the reason for the wife engaging in the round robin of withdrawals and deposits that she did immediately following the parties’ separation. However with the analysis I have endeavoured to provide in relation to those transactions, it is clear that the amount presently unaccounted for is an amount of less than $20,000.
The husband was at times unreliable in his evidence. I had found in relation to his assertions that he still owes his parents in respect of the acquisition of the pre-marriage property his evidence was such that it left a deal to be desired. I was particularly concerned that he did not inform the Court that his parents were present in Australia at a time when he seemed to assert that they were in Italy.
This matter was as hard fought as any matter in which I have been involved. A great deal of evidence was given in written and oral form and was tested by very competent counsel in the course of careful cross examination of each party.
At the end of the day, I am left with the impression that both parties fought this case with every fibre of their being, as it were, so as to leave no stone unturned. Each has gone into great detail as to their affairs. The wife however went to much greater lengths to produce material than did the husband and it is the contrast between so much of her evidence given with such precision as against portions of her evidence given with a great deal less accuracy which caused me concern.
The authorities to which I have referred indicate that in the event that the Court is satisfied that a party has not been frank in making appropriate disclosure to the Court then the Court should not be unduly cautious in making findings in favour of the other party. Having said that, to my mind the matters in which the wife’s evidence were inaccurate are not of such great significance in the overall disposal of this case that I should make any finding against her that would require a further adjustment in her favour.
Equally I am not satisfied that the errors in the husband’s evidence require any finding in the wife’s favour based on a non-disclosure.
Accordingly there will not be adjustment in favour of either party on this basis.
When I weigh the matters I have identified, I am satisfied that particularly the wife’s greater income, where the children are spending equal time with the parents, the resource available to her by means of her shares, the fact that she is in what I accept to be a long term relationship with Mr W weigh the scales in the husband’s favour so he receives an additional 7.5 percent of the pool of assets.
That would mean that the husband would therefore be entitled to receive 60 percent of the parties’ available assets and the wife would be entitled to 40 percent.
Discussion and Determination
How then is this to be achieved?
I have determined that the pool of assets available for distribution is a net figure of $1,049,141.50. The entitlement of the husband I have determined to be 60 percent. 60 percent of the net asset pool produces a figure of $629,484.90.
The husband has in his possession:
a)Car $20,000
b)Motorbike $1,200
c)Contents $14,091
d)Bank Account $2,999
e)Superannuation $67,900
f)Add-backs determined $2,326
$3,950
g)Total $112,466
I have determined there are no debts directly attributable to the husband.
Therefore, if I subtract what the husband already has from his entitlement, the following figures are produced:
$629,484.09 minus $112,466 a result of $517,018. 90 is produced. This then is the amount that the husband requires to receive his entitlement. For ease of further calculation I round the figure at $517,018.
The amount that I have determined the husband is entitled to receive is a significant amount. However the wife sought the opportunity to acquire the properties (albeit for a much less percentage of the parties’ total assets) and the husband has also indicated that he would be prepared to transfer the properties (in his case for an amount significantly greater than the amount I have determined to be proper). I propose to give the wife such an opportunity. I have determined that two months is an appropriate period of time for her to arrange her financial affairs and make payment.
I then stand back to examine the figures that will be produced in either situation, that is; if the wife purchases the husband’s interest in the properties or if the properties are needed to be sold.
I have already determined that the husband is entitled to 60 percent represented by a figure of $629,484. He has in his possession or control goods and things to the value of $112,466 leaving the amount required to realise his entitlement of $517,089. If the wife were to pay this amount to the husband, his position would be seen as amount paid by wife $517,089; amount already in his possession and control $112,466; total $629, 484.90.
I turn then to the wife’s situation. At 40 percent the wife is entitled to receive $419,656 and some cents. In the event of a buy-out the wife would have in her possession:
h)Three parcels of real estate $1,335,000
i)Her car $18,000
j)Contents $10,064
k)Bank accounts $62,447
l)Add-backs I have attributed $18,339.81
m)Company 5 Shares $41,875
n)Share entitlement including presently
jointly owned shares $9,524
o)Her superannuation $120,986
p)Total $1,574,779.05
In this situation the wife would be liable for the mortgages and land tax at $638,104 (see existing paragraphs 370). The figure thus produced is $936,665 less payment to the husband of $517,018 for a balance retained by the wife of $419,656.
If I treat the mortgages as attributable to the corresponding properties in the list of assets then the following result is produced. The property at O Street, Suburb L has a value of $500,000. If I attribute to that property mortgage … there is a balance under that mortgage of $226,248. Taking one from the other it would thus appear that the O Street, Suburb L property has an equity of $273,752.
E Street, Suburb B has a value of $430,000. It I attribute to it mortgage …, the amount outstanding under that mortgage is $273,259. Thus the equity in that property is $156,741.
F Street, Suburb G has a value of $405,000 and I take it to be the fact that mortgage … is secured against it. That mortgage stands in the sum of $106,254 and thus the equity for that property is $298,764.
The amount to be realised from such sale would then be calculated as follows: Equity in O Street, Suburb L $273,752; equity in F Street, Suburb G $298,764 for a total of $572,516. From those proceeds, there would need to be paid the usual selling expenses and I would also propose to order that the outstanding land tax debt be paid from a combination of those proceeds of sale.
I am satisfied when I examine the matters raised in the hearing and when I have regard to the fact that I propose to dismiss both the wife’s application in respect of chid support and the husband’s application in respect of maintenance that this is a fair and proper result in all the circumstances. The husband will receive more of the parties’ immediately available property including superannuation. The wife will have lesser property at present but with her greater income and already greater superannuation entitlements, together with the fact that she is in a relationship with Mr W, that the difference in the parties’ positions created by my orders will not disadvantage the wife in the future.
If the wife does not pay within the time specified, my concern is how to best realise the husband’s entitlement. Clearly one or more of the properties will need be sold. In my further calculations I have worked on the basis that the mortgages as they are shown are attributable to the properties in the same sequence as they appear in the balance sheet; in other words, the first mortgage balance attaches to the first property. If I am wrong in this then I concede that the figures may well need to be recalculated.
I turn then to what is to be done in the event the wife does not pay the husband out. I would then propose a sale of the O Street, Suburb L and F Street, Suburb G properties. I would order that the properties be marketed by private treaty or auction as were necessary. Rather than deal individually with the proceeds of each such sale, I would order that they be accumulated and divided between the parties, after payment, in percentages. I am satisfied that it is appropriate that I rely upon percentages in this instant rather than endeavour to fix sums of money. Percentages, which in a number of cases the Full Court has said is a preferred manner of dividing property would enable the parties to either share equally in or be equally affected by any change in the value of the properties.
The figures that have been produced in this case appear to be as follows:
The properties together should realise some $905,000. The mortgages secured over both those properties total $332,502. When added to that is the land tax liability a total figure of $365,389 is arrived at. When that figure is taken from the combined values of the properties, a figure of $539,611 is produced. The husband’s entitlement I have assessed at $517,019. This would mean that the husband would be entitled to 95 percent of the combined net proceeds of sale of those properties. In the event of a sale I will order accordingly.
The mother in her amended application has sought repayment of certain monies. I have dealt with those matters as I propose to in my reasons for judgment. The wife in a schedule seeks items be returned to her. I am of the view that I dealt with this issue by including the parties’ personal affects and contents with the values agreed in the list of assets and liabilities. Accordingly I am of the view that no other orders are necessary in this respect.
I do propose to order, because these parties can reach agreement on virtually nothing that the husband will make available to the wife negatives and photographs together with family movie videos within seven days of the making of the orders. The wife then is to have twenty-eight days within which to copy those items at her expense and thereafter return them to the husband.
Child Support
The wife has sought a variation of child support. She seeks orders that there be a departure from the administrative assessment of child support payable by the mother to the father for certain periods. She seeks an adjustment in respect of a debt owed by the husband to her and she seeks that in any future child support period that the father shall not make any claim for non-agency payments.
It is put to me that the husband has at all times opposed the granting of leave for the wife to bring such an application. It is put by the wife’s counsel that the Court should assist the parties in resolving this matter at the same time as all other financial applications are heard. Whilst there is much to be said for this submission or proposition, I am of the view that it is appropriate for the parties to make any application for departure in the manner prescribed by the Child Support Assessment Act and thereafter to follow any remedies in the event of dissatisfaction with the decision of a Child Support Registrar.
In all the circumstances, I do not propose to entertain the wife’s application and it will be accordingly dismissed.
The Husband’s Maintenance Application
The husband has sought an order for spouse maintenance.
The husband asserts that wife’s income is significantly greater than his and I am satisfied that this is so. However that is by no means an end to the matter. Section 72(1) of the Family Law Act is in these terms:
(1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
Clearly then the matter needs be determined in two steps (see Beven & Beven[13]). First, there must be a need established on the part of the husband. Having regard to the evidence that I have heard I am satisfied that the husband has indicated that his income is meeting his needs. The husband has equal shared parental responsibility for the children and equal time with them. However, nothing in his evidence indicates to me, much less satisfies me, that his care of the children and his exercise of responsibility for them make him in any way unable to support himself.
xiii)[13] (1995) FLC 92-600
Equally, notwithstanding that the husband has a bipolar disorder, it is obvious that his case in respect of parenting orders was that this disability in no way effects his capacity to care of the children. Nothing I have heard makes any suggestion that the husband is asserting that his condition interferes with his employment. Indeed in the parenting aspect of these proceedings, I have found that no such claim has been made.
There appears to be no other basis or foundation for the husband’s claim.
Thus I am not satisfied that the husband has established any need within the meaning of the Act for support from the wife and I propose to dismiss that part of his application.
The orders that I make are thus set out at the commencement of these reasons.
I certify that the preceding four-hundred-and-eighty-six (486) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 11 April 2011.
Associate:
Date: 11 April 2011
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