Mailey & Theron
[2021] FamCA 113
•12 March 2021
FAMILY COURT OF AUSTRALIA
Mailey & Theron [2021] FamCA 113
File number(s): DNC 137 of 2019 Judgment of: BERMAN J Date of judgment: 12 March 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Where the parties have agreed the substantive part of the parenting matters – Where the parties are in dispute as to the time the child is to go into the husband’s care on certain days – Where the husband wishes to travel interstate and overseas with the child – Where the wife opposes such travel until the child is of a certain age – Consideration of best interests of the child – Orders.
FAMILY LAW – PROPERTY SETTLEMENT– Final orders – Where the wife seeks to retain the former matrimonial home – Where the husband wishes to retain his super in whole – Where there is a modest pool – Where the duration of the relationship is short – Where the husband made the greater financial contribution – Where the wife has been the primary caregiver for the child – Consideration of contributions – Consideration of future needs – Orders.
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 75(2) Cases cited: Waters & Jurek (195) FLC 92-635 Number of paragraphs: 133 Date of hearing: 21 December 2020 Place: Adelaide Counsel for the Applicant: Ms Farmer Solicitor for the Applicant: Withnalls Lawyers Counsel for the Respondent: Ms Franz Solicitor for the Respondent: Darwin Family Law ORDERS
DNC 137 of 2019 BETWEEN: MR MAILEY
Applicant
AND: MS THERON
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
12 MARCH 2021
THE COURT ORDERS:
1.That the parties have equal shared parental responsibility for X born … 2015 (“the child”).
2.That the child live with the wife.
3.That the child spend time with the husband at all times as agreed and failing agreement as follows:-
(a)Until 31 July 2022 on a rotating basis between week one and week two:-
In week one
(i)from 9.00 am Sunday until the commencement of childcare or school on Monday except if Monday is a public holiday or non-school day THEN at 10.00 am;
(ii)from the conclusion of school to 6.30 pm on Thursday;
In week two
(i)from the conclusion of school to 6.30 pm on Tuesday;
(ii)from the conclusion of school to 6.30 pm on Thursday;
(b)From 31 July 2022 on a rotating basis between week one and week two:-
In week one
(i)from 9.00 am Sunday until the commencement of school on Monday except if Monday is a public holiday or non-school day THEN at 10.00 am;
(ii)on Tuesday from after school until the commencement of school the following day;
(iii)from the conclusion of school to 6.30 pm on Thursday.
In week two
(i)from Tuesday after school until the commencement of school the following day;
(ii)from the conclusion of school to 6.30 pm on Thursday.
4.That all changeovers shall occur at childcare or school on a childcare/school day and on a non-school day at the wife’s residence or any other location as agreed to by the parties in writing.
5.That the parties be permitted to telephone the child at all reasonable times, and both parties shall facilitate and encourage the child speaking to the other party, the party who does not have the care of the child shall send a text message to the other party, and the party who has the care of the child will facilitate the child calling the other party.
6.That on the following days, notwithstanding paragraph 3 of these orders the child shall spend time with the parties as follows:-
(a)with the wife for not less than four (4) hours on Mother’s Day with such time to be agreed between the parties;
(b)with the husband for not less than four (4) hours on Father’s Day with such time to be agreed between the parties;
(c)with the wife on the wife’s birthday in each year being 19 August, for four (4) hours with such time to be agreed between the parties;
(d)with the husband on the husband’s birthday in each year being …, for no less than four (4) hours with such time to be agreed between the parties;
(e)with the husband for no less than four (4) hours on the child’s birthday, with such time to be agreed as between the parties; and
(f)in even numbered years, the wife may spend time with the child from 6.00 pm Christmas Eve to 9.00 am Boxing Day and in odd numbered years the husband may spend time with the child from 6.00 pm Christmas Eve to 6.00 pm Christmas Day until 31 July 2022 when the child shall commence spending 6.00 pm Christmas Eve until 6.00 pm Boxing Day in odd numbered years.
7.That the parties do all things necessary to maintain a valid passport for the child and the wife be permitted to hold the child’s passport.
8.That the parties will:-
(a)communicate by text or email except in the event of an emergency when communication will be by telephone;
(b)keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email address and Skype details and will inform the other of any change to any of these details within seven (7) days of any change; and
(c)advise each other of any medical or other emergency involving the child whilst in their respective care.
9.That a copy of these orders shall authorise the child’s school and medical practitioners to provide to each of the parties:-
(a)a copy of school reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the educational needs of the child; and
(b)a copy of any medical reports, including any referrals, information regarding any medical condition suffered by the child, including treatment and any other information or material concerning significant issues affecting the health and wellbeing of the child.
10.That the parties be permitted to attend any childcare or school events that parents are ordinarily invited to attend.
11.That each party be restrained from denigrating the other or the party’s partner or members of the party’s family in the presence of or within the hearing of the child and each party shall remove the child from the hearing of anyone else who may be denigrating the other party or that party’s partner or family.
12.That the parties do all things necessary to attend mediation with a registered family dispute resolution practitioner before 31 July 2023 in relation to increasing the child’s time spent with the husband including spending overnights with the husband.
13.The husband will provide to the wife a USB/memory card containing family photographs which include the child taken during the relationship.
14.That the parties be permitted to travel with the child interstate upon the provision of written notice of their intention to do so not less than seven (7) days prior to the date of intended interstate travel.
15.Subject to the consent of the parties, neither party is permitted to remove the child from the Commonwealth of Australia until the child has attained the age of twelve (12) years of age whereupon if international travel is intended:-
(a)The parties shall provide to the other:-
(i)not less than twenty eight (28) days written notice of their intention to travel overseas; and
(ii)not less than twenty eight (28) days prior to international travel itineraries, contact addresses and telephone numbers to enable the child to communicate with the non-travelling parent at all reasonable times.
(b)That not less than fourteen (14) days prior to any notified overseas travel the wife shall provide to the husband the child’s passport and the husband shall return the child’s passport to the wife immediately upon the conclusion of overseas travel, with the wife to retain possession of the passport.
16.That by way of settlement of property:-
(a)That within thirty (30) days of the date of this order the husband transfer to the wife all of his right, title and interest in the property situate at Lot … B Town Plans ... Volume … Folio … otherwise known as C Street, Suburb D, Northern Territory (“the Suburb D property”).
(b)That concurrently with the transfer of the husband’s interest in the Suburb D property to the wife, the wife do all things necessary to refinance into her sole name the ANZ home loan account number …95 and indemnify the husband with respect to same.
(c)That contemporaneously with the wife refinancing the loan over the Suburb D property to the exoneration of the husband, the husband do pay to the wife the sum of TWENTY SEVEN THOUSAND THREE HUNDRED AND FIFTEEN DOLLARS ($27,315).
(d)That the husband retain for his sole use to the exclusion of the wife the following:-
(i)the property located at F Street, Suburb G, Queensland Volume Lot … on Plan … (“the H Town property”);
(ii)all funds standing to his credit in any bank account in the husband’s sole name including the following:-
A.ANZ Access Advantage Account; and
B.ANZ Online Saver Account.
(e)Within seven (7) days the parties execute all documents necessary for the joint ANZ Bank Account …92 BSB … to be closed and the funds remaining in this account shall be paid to the wife.
(f)That the husband indemnify the wife and keep her indemnified with respect to:-
(i)the investment loan in respect of the H Town property;
(ii)the ANZ Platinum Credit Card in his name; and
(iii)all liabilities held in his sole name.
(g)That the wife indemnify the husband and keep the husband indemnified with respect of all liabilities held in her sole name.
(h)That unless otherwise specified in this order except for the purpose of enforcing payment of money due under this order or any subsequent order:-
(i)each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever kind or nature in the possession of such party as at the date hereof and for this purpose, bank accounts are deemed to be the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker.
17.That all matters are removed from the pending list of cases.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mailey & Theron has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J:
INTRODUCTION
The proceedings between Mr Mailey (“the husband”) and Ms Theron (“the wife”) concern the future parenting arrangements for X born in 2015 (“the child”) and settlement of property.
The proceedings were listed for a two day trial commencing on 21 December 2020. At the commencement of the proceedings, counsel for the parties indicated that agreement had been reached with respect to parenting matters save and except as to three discrete issues. Consequently, the matter was able to be heard in one day and judgment was reserved on 21 December 2020. The trial was conducted by way of Microsoft Teams video link from Adelaide to W City.
The litigation between the parties commenced in the Federal Circuit Court of Australia, with the husband filing an Initiating Application on 19 March 2019 in relation to property matters.
The property pool is modest, with the parties agreeing the net asset pool is $270,504 (excluding superannuation). The parties agree the total superannuation pool is $149,792.
By consent orders made on 30 April 2019, the wife has had sole use and occupation of the property situated at C Street, Suburb D in the Northern Territory (“the Suburb D property”). The orders also provided for, inter alia, the husband to pay the wife $5,000 by way of partial property settlement.
Following a Conciliation Conference, on 19 August 2019 the husband filed an Amended Initiating Application seeking parenting orders in addition to settlement of property.
On 26 August 2019, interim parenting orders were made by consent, providing for the child to live with the wife and spend time with the husband as agreed and failing agreement each Tuesday and Thursday from 4.30 pm to 6.30 pm and commencing in September, each alternate Sunday. On 6 March 2020, these orders were discharged with the Court ordering that the child spend time with the husband as agreed and failing agreement as follows:-
(1)on Sunday 8 March 2020 from 9.00 am until 4.00 pm;
(2)commencing on 22 March 2020, from 9.00 am Sunday until the commencement of childcare on Monday (or 10.00 am if a public holiday) and each alternate weekend thereafter;
(3)each Thursday from 4.30 pm until 6.30 pm; and
(4)each alternate Tuesday from 4.30 pm until 6.30 pm.
The child has been spending time with the husband in accordance with the orders made on 6 March 2020.
The matter was originally set down for a two day trial to commence on 1 October 2020. On 29 January 2020, Young J disqualified himself from hearing the matter and on 6 March 2020 the October trial dates were vacated and the matter was transferred to the Family Court of Australia.
BACKGROUND
The husband is 44 years of age and is a professional. The mother is 32 years of age and is an assistant.
The husband was born in J Town, Country K. In October 1996, he commenced a degree. During his tertiary studies he completed a practical semester in Country L and studied an equivalent course in Melbourne for one year before returning to Country K.
In 2001, the husband returned to Australia to complete his thesis. Between 2001 and 2010, he was employed as a professional in Country K, New Zealand, Melbourne and W City. In May 2010, the husband obtained employment with M Company in W City.
The wife was born in N Town, Country P. She graduated with a degree in 2011 and obtained full time employment thereafter.
The parties met in early 2013, whilst the husband was on a four month placement as a volunteer in Country P. After a short return to W City in May 2013, the husband returned to Country P and the parties lived and travelled together for a period of two months over the period of June/July 2013.
In early August 2013, the husband returned to W City and recommenced his employment with M Company. In September 2013, after obtaining a visitor’s visa, the wife travelled to W City. The parties lived together for a period of three months. In December 2013, the parties travelled together to Country K before travelling to Country P in January 2014.
The parties participated in a traditional Country P introduction wedding in 2014 and then a western style church wedding in early 2014.
In mid-March 2014, the husband returned to W City to work with M Company whilst the wife remained in Country P and continued to work until a long-term 12 month visitor visa was granted in August 2014. Although the wife was permitted to travel to and stay in Australia, she was not permitted to work or study and was required to leave the country every three months. The wife’s temporary residence visa was not granted until September 2015.
In 2015, the child was born in W City. The child has both Australian and Country K citizenship.
In her affidavit filed 27 April 2019, the wife deposes that up until around June 2016, she remained at home as the child’s primary caregiver and homemaker. From June 2016 to December 2016, the wife worked part time. It is the husband’s position that the wife commenced working again in or about March 2016. The wife’s work was mainly in the evening and so the husband cared for the child during the evenings.
In or about March 2017, the wife commenced studying a Certificate III whilst also working as an assistant for Q Company. In July 2018, the wife commenced full time employment as an assistant with R Company.
The parties separated under the same roof on 24 November 2018. Pursuant to the orders made on 30 April 2019 for the wife to have sole use and occupation of the Suburb D property, the husband vacated the property. The parties obtained a divorce in 2020.
The wife remains employed full time as an assistant for two companies, namely, Q Company and S Services. She currently earns approximately $81,128 per annum, working approximately 58 hours per week.
The husband remains employed as a professional on a full time basis with T Pty Ltd, earning approximately $120,000 per annum.
The husband has re-partnered and since about March 2020 the husband and his partner have been living together in a rental property, with the rent and living expenses shared equally.
In October 2020 the wife was diagnosed with cancer and underwent surgery. The wife was scheduled to undergo further surgery on 22 February 2021. The wife deposes in her trial affidavit, filed 4 December 2020, that her prognosis is good and that she takes medication in order to prevent a recurrence of the cancer.
The child is currently 5 years of age. It is not controversial that when the child is not in the care of either parent, the child is in childcare. At the time of the trial, it was intended that the child would commence attending Suburb D Preschool in 2021.
The child lives with the wife and currently spends time with the father according to the orders of 6 March 2020.
PARENTING ISSUES
The parties have agreed to parenting orders summarised as follows:-
(1)That the parties have equal shared parental responsibility for the child.
(2)That the child live with the wife.
(3)That the child spend time with the husband as agreed and failing agreement as follows:-
(a)Until 31 July 2022:-
(i)In week one, from 9.00 am Sunday until the commencement of childcare or school on Monday or 10.00 am if not a school day and on Thursdays until 6.30 pm.
(ii)In week two on Tuesday and Thursday until 6.30 pm.
(b)From 31 July 2022:-
(i)In week one, from 9.00 am Sunday until the commencement of school on Monday or 10.00 am if not a school day, on Tuesday from after school until the commencement of school on the following day and on Thursday until 6.30 pm.
(ii)In week two on Tuesday from after school until the commencement of school the following day and on Thursday until 6.30 pm.
(4)That handovers are to occur at childcare or school and if a non-school day at the wife’s residence or another location as agreed.
(5)That each party be permitted to telephone the child at all reasonable times, with the caring parent to facilitate the call.
(6)That the child spend time with the wife for not less than 4 hours on Mother’s Day and on the wife’s birthday.
(7)That the child spend time with the husband for not less than 4 hours on Father’s Day, the husband’s birthday and the child’s birthday.
(8)That the child spend Christmas with the parties as follows:-
(a)in even numbered years, with the wife from 6.00 pm Christmas Eve to 9.00 am Boxing day; and
(b)in odd numbered years with the husband from 6.00 pm Christmas Eve to 6.00 pm Christmas Day, with this to be extended to 6.00 pm Boxing Day from 31 July 2022.
(9)That the parties do all things necessary to maintain a valid passport for the child with the mother to hold the child’s passport.
(10)That the parties communicate by text or email except in the event of an emergency when communication is to be by telephone.
(11)That the parties keep each other informed of their current contact details and advise the other of any change within 7 days.
(12)That the parties advise each other of any medical or other emergency involving the child whilst the child is in their care.
(13)That a copy of the orders authorises the child’s school and medical practitioners to provide each party with certain information in relation to the child.
(14)That the parties be permitted to attend any of the child’s childcare or school events that parents are ordinarily invited to attend.
(15)That each party be restrained from denigrating the other party or the other party’s partner or members of the other party’s family in the presence of or within the hearing of the child and shall remove the child from the hearing of anyone else who does so.
(16)That before 31 July 2023, the parties attend a mediation with a family dispute resolution practitioner in relation to increasing the child’s time with the husband.
(17)That the husband provide the wife with a USB/memory card containing family photographs of the child taken during the relationship.
The parties remain in dispute as to the following issues:-
(1)The time the child is to go into the husband’s care on Tuesdays and Thursdays, when the child is in the husband’s care on those days until 6.30 pm;
(2)Interstate travel; and
(3)Overseas travel.
By his case outline document filed 16 December 2020, the husband seeks orders in relation to the three discrete parenting issues summarised as follows:-
(1)That the time the child spends with the husband on the Tuesdays and Thursdays until 6.30 pm, commence at 4.30 pm.
(2)That the child be permitted to travel interstate and/or overseas with each of the parties during the school holidays and otherwise spend time with the parties during the school holidays as agreed and failing agreement as follows:-
(a)with the parties for 3 occasions for up to 5 consecutive nights and thereafter;
(b)with each party on a week about basis; and
(c)commencing in 2023:-
(i)in even numbered years with the wife for the first half of all school holidays and with the husband for the second half of all school holidays; and
(ii)in odd numbered years with the husband for the first half of all school holidays and with the wife for the second half of all school holidays.
(3)That the travelling parent provide the non-travelling parent not less than 14 days written notice of their intention to travel interstate, together with travel itineraries and contact information.
(4)That the travelling parent provide the non-travelling parent not less than 28 days written notice of their intention to travel overseas, together with travel itineraries and contact information.
(5)That not less than 14 days prior to overseas travel, the wife provide the husband with the child’s passport with the husband to return the child’s passport to the wife immediately upon the conclusion of the overseas travel.
The wife did not file an Amended Response to Initiating Application seeking parenting orders. However, by reference to the wife’s case outline document filed 20 December 2020 and her affidavit filed 4 December 2020, the wife’s position in relation to the discrete parenting issues can be summarised as follows:-
(1)That the husband’s time with the child on Tuesdays and Thursdays until 6.30 pm, commence at the conclusion of school.
(2)That the husband not be permitted to travel with the child interstate until the child is 12 years of age.
(3)That the husband not be permitted to travel with the child overseas until the child is 18 years of age.
(4)That the wife be permitted to travel with the child overseas.
With respect to the time the child is to enter his care on the Tuesdays and Thursdays that he spends with the child until 6.30 pm, the husband indicates that he is only able to collect the child from childcare and/or after school between 4.45 pm and 5.00 pm due to his employment. At paragraph 132 of his affidavit filed 4 December 2020, the husband indicates that he has been able to reach an agreement with his employer that from 31 July 2022 he leave work early on alternate Tuesdays to collect the child from school. The husband maintains that the earliest he is able to collect the child on other days is 4.30 pm. The wife’s position is that the husband is insistent on his time with the child commencing at 4.30 pm as it suits his work schedule and that it should be his responsibility to pay childcare from after school until 4.30 pm on these days. The husband considers that he agrees to spend time with the child from 4.30 pm and does not consider he should be responsible for paying additional after school care fees where he already pays the wife child support.
The husband wishes to travel interstate with the child in order to increase his bond with the child and provide the child with experiences she may not otherwise have. The wife opposes the child travelling interstate with the husband as she is concerned the husband will not look after the child well and is irresponsible. She is willing for the child to travel interstate with the husband upon the child turning 12 years of age, at which point she considers the child will be able to look after herself.
The husband wishes to travel with the child overseas, specifically to Country K where his parents and other relatives continue to reside. The wife is opposed to the child travelling overseas with the husband until the child turns 18 years of age. She is concerned that should the child be permitted to travel overseas, the husband will not return the child to Australia and likely remain with the child in Country K. Despite her opposition to the child travelling overseas with the husband whilst she is under the age of 18 years, the wife does wish to travel herself with the child overseas, specifically to visit her family in Country P and for the child to experience this aspect of her culture.
PROPERTY ISSUES
The property pool between the parties is modest.
By his case outline document, the husband seeks final property orders summarised as follows:-
(1)That the husband transfer his interest in the Suburb D Property to the wife.
(2)That wife to do all things necessary to refinance the loans encumbering the Suburb D property into her sole name and pay a sum to the husband commensurate with her receiving 20 per cent of the asset pool less $5,000.
(3)That in the event the wife is unable to comply with (2) herein then the Suburb D property be sold.
(4)In the event the Suburb D property is not sold within three months from the date of listing then the property be listed for sale by auction and if not sold at auction or within 14 days after the auction, then the property be listed for a second auction within five weeks.
(5)That after all sale costs, commissions, expenses and liabilities are met, the net proceeds of sale be divided as follows:-
(a)That the wife receive a sum commensurate with 20 per cent of the net asset pool less $5,000; and
(b)The balance be paid to the husband.
(6)That after the transfer or sale of the Suburb D property, the parties close the joint ANZ Offset Bank Account with the husband to retain the balance of funds.
(7)That pending the transfer or sale of the Suburb D property the wife have sole use and occupation of the property with the wife to meet all liabilities and outgoings and be restrained from dealing with in any way the funds in the joint ANZ Offset bank account.
(8)That the husband retain the property situated at F Street, Suburb G, Queensland (“the H Town Property”), all funds in accounts in his sole name, his superannuation entitlements and all other household contents and property in his possession.
(9)That the wife retain motor vehicle 1, all funds in accounts in her name, her superannuation entitlements and all other household contents and property in her possession.
The husband also seeks extensive orders in relation to sale of the Suburb D property.
By her Response to Initiating Application filed 27 April 2019, the wife seeks final property orders summarised as follows:-
(1)That there be an equal division of the non-superannuation assets and an equal division of the superannuation assets of the parties, with the wife to retain the Suburb D property.
(2)That the husband transfer all his interest in the Suburb D property to the wife, with the wife to refinance the loan over the property into her sole name.
(3)That the husband retain the H Town Property, all other property in his possession and all funds in accounts in his sole name.
(4)That the wife retain all other property in her possession and funds in accounts in her own name.
(5)That the parties do all things necessary to close the joint ANZ Offset bank account with the balance of funds to be equally divided.
It was submitted by counsel for the wife that it is the wife’s preference that she retain the Suburb D property. Likewise, counsel for the husband submitted that it was the husband’s preference that he retain all of his superannuation entitlements. In light of this, although originally seeking an equal division of both the non-superannuation assets (with the wife to retain the Suburb D property) and an equal division of the superannuation assets, in closing submissions, counsel for the wife submitted that the wife sought property orders such that:
(1)The wife would retain 39 per cent of the net asset pool, including the Suburb D property and other property currently in her possession.
(2)The husband would retain 61 per cent of the net asset pool, including the H Town property and all other property currently in his possession.
(3)The parties would each retain their superannuation entitlements, with there being no superannuation split.
Both parties also seek various indemnity orders.
Despite initial difficulties with obtaining finance, counsel for the wife submitted that the wife has obtained approval for finance to retain the Suburb D property. The approval was valid until the end of February 2021. It is hoped that the wife can obtain an extension of time.
The wife concedes that she did not bring any assets to the relationship. At the commencement of the relationship, the husband had a term deposit with the ANZ Bank of approximately $160,000 and $37,000 in superannuation entitlements. The parties agree that the husband made the major financial contributions to the relationship.
On 14 September 2014, the husband purchased the H Town property in his sole name for $420,000. He used approximately $100,000 of his term deposit for the deposit, with the balance of the purchase price being obtained by way of a loan with ANZ Bank. From about November 2015, the husband has been receiving rental income from the H Town property, which was at first deposited into the husband’s sole bank account and since October 2016 has been deposited into the parties’ joint offset account. The husband asserts that the wife has never contributed financially to the H Town property and that the rental income was used to pay for the daily living expenses of the parties throughout their relationship.
On 24 August 2016, the parties jointly purchased the Suburb D property for $595,000. The husband’s savings of $152,000 together with the balance of the husband’s ANZ term deposit constituted the deposit for the purchase. The property was tenanted until 31 December 2016, after which the parties moved into the property. The husband maintains that the wife did not contribute financially to the purchase of the property, nor did she contribute to the various repairs or upgrades whilst the property was tenanted or thereafter. It is the husband’s position that up until 30 April 2019, the wife did not contribute to the council rates, property insurance or home loan repayments of the Suburb D property. At paragraph 23 of her trial affidavit, the wife asserts that she has paid all mortgage repayments for the property since May 2018.
A point of contention between the parties is whether a property in Country P should be included in the asset pool as a notional asset of the wife. The husband contends that in about January 2018, the wife proceeded to arrange for the construction of a house situated on land that belongs to the wife’s father. It is the husband’s position that in about March 2018, the wife asked him to co-sign a loan so that she could finish building the property in Country P. The husband maintains that he eventually agreed in order to avoid ongoing conflict with the wife. The husband states that he did not financially contribute to the loan and that the loan has been paid in full. The husband asserts the property is property of the wife. The wife maintains that the property is a family house, it is not in her name and the wife’s other siblings also contributed financially towards it. At paragraph 32 of her affidavit filed 27 April 2019, the wife deposes that under Country P traditions, as a daughter, she will not inherit her father’s property.
DOCUMENTS RELIED UPON
The husband relies upon the following documents:-
·Affidavit of the husband filed 19 March 2019 (specifically paragraphs 81(a) to (i));
·Trial affidavit of the husband filed 4 December 2020;
·Financial Statement filed 4 December 2020; and
·Case outline filed 16 December 2020.
The wife relies upon the following documents:-
·Affidavit of the wife filed 27 April 2019;
·Trial affidavit of the wife filed 4 December 2020;
·Financial Statement filed 27 April 2020; and
·Case outline filed 20 December 2020.
Pursuant to a s 62G(2) order made on 6 March 2020, a Family Assessment Report dated 20 May 2020 was prepared by Family Consultant Ms V. Ms V was not required by either party for cross-examination. The report was received and read into evidence.
BALANCE SHEET
At the commencement of the trial each party tendered a balance sheet (Exhibit “2”). Counsel for the husband submitted that the balance sheet is essentially agreed, with there being no difference in the values attributed by each party to the assets, liabilities or superannuation.
The parties agree the following assets:
Description Ownership Value The Suburb D property Joint 555,000 The H Town property Husband 320,000 motor vehicle 1 Wife 2,500 ANZ and NAB accounts Wife and one joint account 27,438 ANZ online saver account Husband 24,542 Shares Husband 10,461 Household contents Husband 5,000 Household contents Wife 2,500 Total $947,441
The parties agree the following liabilities:
Description Ownership Value The Suburb D home loan as at 2 December 2020 Joint 433,092 The H Town property home loan as at 2 December 2020 Husband 240,818 The husband’s ANZ Platinum credit card as at 2 December 2020 Husband 3,027 Total $676,937 Net Balance $270,504
The parties agree the superannuation pool comprises:-
Description Ownership Value Australian Superannuation Husband 142,320 Australian Superannuation Wife 7,472 Total $149,792
The parties agree the wife withdrew $10,000 from her superannuation in July 2020, with the wife’s case outline indicating the money was used to pay the mortgage and part of her legal fees. I was not assisted as to a breakdown of expenditure and am not able to bring to account the proportion of superannuation used for the wife’s legal fees.
As already discussed, the parties disagree whether the property in Country P should be considered as a notional asset of the wife.
The husband considers that the $5,000 the wife received by way of partial property settlement should also be considered as a notional asset of the wife.
EVIDENCE
The husband
The husband was questioned as to various financial transactions involving movement of money between his various accounts in 2018/2019. The husband agreed that these accounts were his private accounts to which the wife did not have access. The husband denied that the movement of funds between the accounts was for a sinister purpose or intent but rather, it reflected that money was moved between accounts as was required.
In particular, the parties set up a mortgage offset account in order to maximise the reduction in the outstanding capital component of the mortgage secured over the Suburb D property.
The husband agreed that in leaving Country P the wife left her family, cultural ties and the benefit of her significant university qualifications.
When the wife arrived in Australia she was soon pregnant with the child. She took on the role of homemaker and caregiver but ultimately was able to obtain a Certificate III.
The husband considers that the money that the wife sent back to Country P for the benefit of her family was a significant benefit to her. The husband understood that it was part of the wife’s obligation to support her father and siblings but nonetheless, the money that was repatriated arose principally due to the husband’s income.
The husband was asked why he only wanted to pick the child up at 4.30 pm and not from the conclusion of school. The husband has a difficulty with collecting the child at an earlier time.
On occasion, the husband has collected the child from the wife’s nominated nanny or babysitter.
The husband is aware of the wife’s position that if he is not able to pick up the child at the conclusion of school then it should be from after school care.
The wife
The wife concedes that from time to time she borrowed money to send to her family in Country P to contribute to the construction of a family home. The wife borrowed about $15,000 in 2017. The wife has four brothers and six sisters. The sum of $7,000 was used to assist the family in building the home and the balance was to support her brother.
The wife contends that she repaid the loan by March of 2020.
The husband believes the wife may hold a valuable interest in the Country P property. The wife rejects that proposition and it is her evidence that the property is situate on land currently owned by the maternal grandfather.
The wife agreed that from 2017 she was sending money from her wages and the joint ANZ Bank account to support her extended family in Country P.
The wife is not now certain as to the extent of money that she sent but she agreed that she was only able to do so because the husband had made the significant contribution to the parties’ living expenses including the home loan, food and utilities.
At paragraph 87 of the husband’s trial affidavit he contends that the money being sent to the wife’s family in Country P was between $1,000 and $2,000 per month. The wife did not agree with the husband’s contention.
The wife accepted that in September 2020 there was a surplus of $5,000 in her account which she withdrew on 16 September 2020. On 12 October 2020 she paid $1,100 for a visa for a family member to come to Australia. COVID-19 thwarted the wife’s plans for her sister to travel to Australia.
The wife accepted that whilst she continues to transmit money to support her mother and family in Country P, it is now for significantly lesser sums than when she and the husband were together.
The wife’s income is relatively modest, however, she remains keen to retain the Suburb D property. The current home loan is about $433,092.
The wife’s employment is Monday to Friday between 7 am and 4.30 pm. The wife is not required to work nightshifts and her average hourly rate is $27.
In addition, the wife receives child support of $1,103 per month, although considers that it should be assessed and paid at a higher level.
The wife’s tax return for the financial year ending 30 June 2020 shows taxable income of $81,128. This does not include rental income from a boarder or tenant who was residing with the wife.
The wife remains concerned at the possibility that the husband might remain with the child in Country K if the orders permit overseas travel for the child.
The child holds Country K citizenship for the express purpose of enabling easier travel into Country K.
Family Consultant
By order made 6 March 2020 Family Consultant Ms V (“the family consultant”) prepared a Family Report dated 20 May 2020.
To a large extent the utility of the report is subordinate to the comprehensive agreement reached between the parties as to the future parenting arrangements for the child to live with the wife and spend increasing time with the husband.
The limited scope of the issues remaining for determination namely, whether the husband should pick the child up from the conclusion of school or 4.30 pm on the designated days and whether each of the parties or either of them should be permitted to undertake overseas travel with the child is not likely to be significantly affected by the family report.
The family consultant considered that at the child’s age she has reached a developmental stage where she should be able to transition easily between the two households, although she is likely to be more attuned to the parental conflict and disharmony.
The child appears to have a strong and healthy attachment to each of the parties.
The family consultant considered that it was a relevant consideration to bring to account the wife’s status as a single parent, grappling with significant financial responsibilities and with the disadvantage of having been separated from her family support network.
The family consultant accepted that the wife had a level of emotional fragility which would be exacerbated if orders were made that allowed the husband to take the child overseas.
The family consultant does not comment on the wife’s application that the child travel with her to Country P to spend time with her extended family.
For reasons that are not well explained but apparently based upon an assessment of the child’s ability to independently communicate with the wife, the family consultant considered that overseas travel might be reasonable upon the child reaching the age of 12 years.
PARENTING CONSIDERATIONS
Although the remaining issues are of narrow compass, it is still necessary that I approach the matter from a focus on the practical reality of the separate proposals of the parties. I bring to account the considerations of the primary and additional factors in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles of s 60B(2) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interest;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm if applicable;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment.
The parties accept that the gravamen of the consent orders as to the future parenting arrangements for the child have a focus of ensuring that the child maintains a meaningful relationship with each of the parties.
The parties are also committed to ongoing review of the arrangements as the child becomes older. It is noted that the parties are to attend mediation before 31 July 2023 to specifically consider increasing the child’s time with the husband.
The parties consider that it is in the child’s best interests to spend regular and frequent periods of time in the husband’s care. To that end, the parties agree that the child is to go into the husband’s care each Tuesday and Thursday until 6.30 pm. The parties are not able to agree whether the husband’s time commences at the conclusion of school or at 4.30 pm. For some considerable period the parties have arranged for the husband’s time to commence at 4.30 pm. If the order provides for time to start at the conclusion of school, it is acknowledged by the wife that the child would remain in after school care until she is picked up by the husband. There is no suggestion that the child would not be able to do this and it appears that the issue as between the parties may well be more about the financial cost of such an arrangement as opposed to any effect or consequence upon the child.
Both parties work. The wife has to date made the necessary arrangements in terms of her work, but that is difficult and requires the forbearance of her employer. For his part, the husband has some level of flexibility but he could not reliably attend at the conclusion of school.
I have not been presented with evidence as to the cost involved of the child remaining in after school care for what would be approximately one hour on one or two occasions each week. The husband’s position is that he pays child support as assessed at a high level and whilst he gets no credit for the payment of child support, nonetheless it is a relevant factor.
It may be that the parties would seek to rearrange the mid-week time that the child spends with the husband. There might be a benefit to the time being extended but the frequency reduced. That is a matter for the parties but for the purposes of these proceedings it seems to me that there is good sense in the parties each sharing the challenging aspects to the current parenting arrangements. At present, the wife needs to make appropriate arrangements for the child to either be collected and/or cared for from the conclusion of school until the wife is able to attend. The wife seeks that on the two occasions per week that the child spends time with the husband he should be subject to the same difficulty.
There is merit in the wife’s argument. There may be occasions when the husband is able to collect the child from the conclusion of school, however if not, then it is reasonable that each of the parties undertake the more onerous aspects of parenting as part of the ongoing parental responsibility that each of them have towards the care of the child.
I propose to order that the husband’s time on Tuesday and Thursday should commence at the conclusion of school. It is then for the husband to arrange childcare when the child is in his care and for the wife to likewise arrange childcare when the child is in her care, if that is what is required.
Each of the parties would wish to take the child overseas. Very little evidence has been given that would assist the Court in making orders that allay the fears of each of the parties that the child may be retained in an overseas jurisdiction.
It is not that the parties presented in a way that would create uncertainty as to their intentions if overseas travel was allowed, but the family consultant has already highlighted an inherent anxiety in the wife’s presentation and it may well be that a similar concern exists in respect of the wife’s purported intention to take the child to Country P.
No evidence was given or proposal proffered as to a security bond if overseas travel was allowed. The difficulty for the parties may be that in the absence of agreement between them, neither party will accede to any request by the other, however reasonable it might be, that will enable the child to travel either to Country K or to Country P.
I propose to fall in with the recommendation of the family consultant and order that the parties be able to travel overseas with the child once she has attained the age of 12 years, subject to the parties giving their consent to overseas travel.
PROPERTY SETTLEMENT
The husband initially sought to include an undefined interest or value held by the wife in the property in Country P, no evidence was presented that established the wife held either a legal or beneficial interest. No valuation of the property was presented and whilst the wife acknowledged that during the course of the relationship money was forwarded to her family, some of which was used in respect of the Country P property, she rejected that she held any interest of value.
The wife’s evidence was not the subject of significant challenge. In circumstances where no evidence was presented which would cause the Court to reassess the denial by the wife that she held an interest in the Country P property, it would not have been the position of the Court to bring it to account as a valuable asset in which the wife held an interest.
The husband also sought to bring to account the sum of $5,000 that the wife retained from a bank account in September 2020. I accept that the money no longer exists and accordingly for the husband to be successful, he would need to satisfy the Court that it is appropriate for the money to be the subject of a notional add back in circumstances where it no longer exists.
I accept that the wife accessed the money, but other than the sum of $1,100 which may have been used to assist in the payment of a visa for a family member, the money generally was spent by the wife on the exigencies of life. It was not put to the wife that she was reckless in her spending, nor was it suggested that the money was used for anything other than a genuine purpose.
The Court should be reluctant to populate a balance sheet and equitable interests of the parties by items that are not in existence. I consider that the opportunity for an add back to be considered is at best limited to particular circumstances where the money has been used by a party to pay legal fees, or the Court is satisfied that a party has been wilfully negligent or wasteful in the disposal of money previously held by the parties.
The parties are agreed as to the assets, liabilities and superannuation entitlements of each of the parties. The total assets are $947,441 less liabilities of $676,937. The total superannuation is $149,792.
The property pool is modest and it is a feature of the orders sought by the wife that if possible she would seek to retain the Suburb D property. It is her evidence that she is able to obtain finance sufficient to retain the property subject to the determination of a settlement sum.
Given that the net pool is $270,504 and the total of the superannuation interests of the parties is $149,792, the Court would initially consider that there should be a two pool approach.
Neither party seeks a superannuation split and it is the husband’s position that he would seek to retain the entirety of his superannuation entitlement.
In those circumstances I consider it permissible that I treat the superannuation interests of the parties notionally as property.
The consequence of that determination is that the total net pool available for division between the parties is $420,296.
The wife is to keep the following property:-
Description Value Suburb D house $555,000 Motor vehicle $2,500 Bank balances $27,438 Furniture and effects $2,500 Total $587,438 Less mortgage $433,092 Balance $154,346 Wife’s superannuation $7,472 Total $161,818 Contribution
The relationship is short. The parties met in 2013, married in 2014 and separated under the same roof in November 2018. At best the relationship is of four to five years. There is however a child of the relationship.
The most significant factor is that at the commencement of the relationship the husband had $160,000 on term deposit and $37,000 by way of superannuation entitlements.
The parties agree that the husband made the major financial contribution at the commencement of the relationship.
In terms of the current consideration of the asset pool the husband’s pre-cohabitation contribution amounts to almost one half of the current pool.
Each of the parties worked co-operatively during the course of the relationship and whilst it is clear that the wife assumed the principal homemaker role nonetheless the husband was in well paid employment and his income enabled the wife to repatriate reasonably significant sums to support her family in Country P.
Post separation the husband has paid child support as assessed, whereas the wife has continued in her role as primary carer for the child.
I consider that the contributions of the parties should be reflected 70/30 in favour of the husband to reflect the significance of his superior financial contribution. The differential between the parties is 40 percent which would equate to a figure of about $160,000.
The effect of the husband’s pre-cohabitation contribution maintains its significance and is reflected by it being reflected in the current property pool.
Factors relevant to s 75(2) of the Act
The husband enjoys a significant income, whereas the wife’s income is approximately $81,000 per annum and is only able to be sustained because she works approximately 58 hours per week.
In addition, the wife has the ongoing care of the child which requires her to undertake employment consistent with her obligation to care for and supervise the child.
The financial requirements arising from the care of the child are to some extent ameliorated by the maintenance paid by the husband but nonetheless significant.
It is likely that the husband’s financial circumstances will continue to improve, whereas given the wife’s history and her obligation to retrain, she may well experience a higher level of impediment to employment and financial advancement.
In any event, for the foreseeable future the wife’s primary focus is the ongoing care of the child.
In the circumstances of this case I consider that there should be an adjustment in favour of the wife of 15 per cent. The consideration of factors relevant to an adjustment under s 75(2) of the Act must be considered as to the real value of the adjustment and not simplistically as the application of a fraction or percentage of the overall assets. See Clauson & Clauson (1995) FLC 92-595 at 81,911 and Waters & Jurek (1995) FLC 92-635 where Fogarty J said at 82,376 the following:-
In the majority of property cases little difficulty is encountered in the contribution step and increasingly in the general run of cases the conclusion is likely to be one of equality or thereabouts. There is no doubt that the centre of gravity in the determination of property cases has, especially in more recent times, moved to the evaluation of the s. 75(2) factors, and the significance of that has been heightened because of recent Full Court decisions which have emphasized those provisions and indicated that they should be given real rather than token weight.
In this case, the pool is modest and predominantly comprised of superannuation entitlements to each of the parties that are not yet available to each of them for some considerable period of time.
The adjustment of 15 per cent reflects an appropriate consideration of the financial circumstances of each of the parties and in particular their financial disparity, the primary care of the children by the wife and the likely reality that the husband’s future employment prospects are far superior to those of the wife which are likely to be constrained by her care of the child and her need to retrain to a different career or occupation.
On that basis, the husband would retain 55 per cent and the wife 45 per cent of the pool.
In respect of the total sum of $420,296, 45 percent would represent an amount of $189,133. The wife however retains property and superannuation to the sum of $161,818 which would require the husband to pay a settlement sum to the wife of $27,315.
The husband has money available to him held in the ANZ Online Saver Account and accordingly the time for the payment of the settlement sum should be 28 days.
CONCLUSION
For those reasons I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 12 March 2021
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Family Law
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Equity & Trusts
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Contract Law
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