MARELLO & MARELLO
[2013] FamCA 254
FAMILY COURT OF AUSTRALIA
| MARELLO & MARELLO | [2013] FamCA 254 |
| FAMILY LAW – PROPERTY – where the existing legal and equitable interests of the parties includes various corporate entities and trusts – where the parties are agreed that contributions to the date of separation were equal – where the husband proposes a 5 per cent adjustment to the wife for s 75(2) factors – where the wife seeks 94 per cent of the pool – whether the existing legal and equitable interests of the parties ought be adjusted – where an adjustment just and equitable in the circumstances – where the wife met the interest repayments in respect of several loan facilities secured over the parties’ real properties – where the parties’ middle child suffers from significant disabilities – where the wife has had primary care of the children post-separation – where the children will continue to live primarily with the wife – where the husband has a greater earning capacity than the wife – contributions assessed at 55:45 per cent in favour of the wife, with a further adjustment of 5 per cent in the wife’s favour for s 75(2) factors. FAMILY LAW – CHILDREN – where the parties are largely agreed as to the live with and spend time with orders – where the parties are in dispute regarding how the husband should spend time with the children – where the parties are also in dispute regarding holiday time and the school which their eldest child should attend – consideration of the best interests of the children. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Af Petersens and Af Petersens (1981) FLC 91-095 |
| APPLICANT: | Ms Marello |
| RESPONDENT: | Mr Marello |
| FILE NUMBER: | BRC | 11438 | of | 2010 |
| DATE DELIVERED: | 19 April 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 11 – 13 February 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cameron |
| SOLICITOR FOR THE APPLICANT: | Direct Brief |
| COUNSEL FOR THE RESPONDENT: | Mr Hackett |
| SOLICITOR FOR THE RESPONDENT: | Hirst & Co. |
Orders
Orders for Settlement of Property
That as and by way of settlement of property pursuant to s 79(4) of the Family Law Act 1975 (Cth) it is ordered that:
The existing legal and equitable interests of the parties be adjusted such that the wife receive 60 per cent of the value thereof and the husband 40 per cent and so as to give effect to that adjustment, the parties shall, within 28 days of the date of this Order, jointly file agreed Minutes of Order giving effect to that adjustment in accordance with the orders outlined at paragraph [123] of the Reasons for Judgment delivered contemporaneously herewith.
The agreed Minutes of Order in compliance with paragraph 1 of these Orders shall be filed by the parties forwarding same via joint e-mail to the Associate to Justice Murphy.
Parenting Orders
The parties shall contemporaneously with the requirements of paragraph 1 of these Orders jointly file, in the manner contemplated by paragraph 2 of these Orders, agreed Minutes of Order:
(a) Setting out all parenting orders upon which the parties were agreed at trial as referred to in the Reasons for Judgment delivered contemporaneously herewith; and,
(b) Giving agreed effect to the orders outlined at [198] and [199] of those Reasons.
Failure to Agree
In the event that the parties are unable or unwilling to reach agreed Minutes as contemplated by paragraphs 1 and 3 of these Orders, the matter be listed before Murphy J, or another Judge if Murphy J is unavailable, at a date and time to be advised.
In the event that it becomes necessary to list the matter as contemplated by paragraph 4 of these Orders, each of the parties shall file and serve not less than seven (7) days prior to the said listing, all such material as might be necessary so as to allow the Court to determine the issue of the costs of and incidental to that listing, including, if appropriate, any issue of indemnity costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marello & Marello has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 11438 of 2010
| Ms Marello |
Applicant
And
| Mr Marello |
Respondent
REASONS FOR JUDGMENT
A miscellany of issues attend the litigation between the parties to this 12-year marriage in which competing parenting orders and orders for settlement of property are sought. By the commencement of trial, those issues had narrowed significantly. Nevertheless, substantial issues remain both in respect of the s 79 proceedings and issues involving the parties’ three children (C born in October 2001, D born in August 2003, and E born in April 2006).
Largely, the existing legal and equitable interests of the parties, including interests in respect of corporate trust entities have been agreed. The major issue in respect of those interests and indeed, the major issue with respect to the s 79 proceedings themselves, is in the treatment of a lease within the husband’s healthcare practice, and, in particular, whether it ought be treated as a “finance lease” or an “operating lease”. The difference has ramifications for the valuation of the corporate entity within which the relevant liabilities exist.
Otherwise the issues are whether certain alleged debts of the wife ought be included as liabilities to be borne by each of the parties, whether certain specified amounts ought be “added back” to the pool and credited to the husband and, more broadly, the respective entitlements of each of the parties.
The parenting issues that remained alive by the conclusion of the proceedings before me can be summarised as follows:
a)The manner in which the husband spends time with the children (i.e. five nights each alternate week or five nights spread across a fortnight);
b)Which parent has the children in the first half of the Christmas/New Year holidays in odd years;
c)Whether the husband should have possession of the children’s passports;
d)Whether each of the parties, or only the wife, should be subject to restrictions regarding international travel with the children; and,
e)Which school C will attend.
Property
Existing Legal And Equitable Interests in Property
The existing legal and equitable interests of the parties including those in respect of which there is dispute can best be understood by reference to the agreed schedule that became part of Exhibit C in the proceedings. Relevantly, it is:
| WIFE VALUES ($) | HUSBAND VALUES ($) | |
| 1) Realty | ||
| F Street, Brisbane Suburb 2 (former matrimonial home) (owned jointly) | $1,850,000.00 | $1,850,000.00 |
| B Street Brisbane Suburb 1 (registered in the wife’s sole name) | $500,000.00 | $500,000.00 |
| 2) Corporate/Trust Interests/Superannuation | -$771,984.00 | -$1,098,152.00 |
| 3) Superannuation Entitlements | ||
| G Super Fund – Wife | $259,591.09 | $259,591.09 |
| H Super Fund – Husband | $5,530.98 | $5,530.98 |
| 4) Other Assets | ||
| Goods and Chattels located at F Street property | $41,029.00 | $41,029.00 |
| Goods and Chattels located at Husband’s property | $8,639.00 | $8,639.00 |
| Wine Collection | $23,099.00 | $23,099.00 |
| Jewellery – Wife | $8,385.00 | $8,385.00 |
| Jewellery – Husband | $175.00 | $175.00 |
| Motor vehicle – Wife | $0.00 | $0.00 |
| 5) Liabilities | ||
| Joint B Street | -$276,613.00 | -$276,613.96 |
| Wife – Company 1 Bendigo & Adelaide Bank– B Street | -$399,200.00 | -$399,200.00 |
| Wife – Student loan | -$116,591.01[1] | Excluded |
| Wife –novated lease –motor vehicle | $0.00 | $0.00 |
| Wife – St George Vertigo Mastercard | -$19,446.87 | Excluded |
| Wife – Westpac Mastercard | $0.00 | $0.00 |
| Husband – Westpac Visa | Excluded | Excluded |
| Husband – American Express | Excluded | Excluded |
| Wife – CBA Debit Visa card | ||
| Husband – CBA Mastercard | Excluded | Excluded |
| Wife – Wells Fargo Visa | $0.00 | $0.00 |
| Husband – Secured Loan from parents | Excluded | Excluded |
| Husband – Income Tax assessed and unpaid | -$29,998.00 | -$29,998.00 |
| Wife’s loan from mother | -$24,000.001 | Excluded |
| Financial Resources | ||
| Qantas Frequent Flyer Points | $0.00 | $0.00 |
| ING Direct a/c ‘C’ | Excluded | Excluded |
| ING Direct a/c ‘D’ | Excluded | Excluded |
| ING Direct a/c ‘E’ | Excluded | Excluded |
| Net Actual Pool | $1,058,615.23[2] | $892,485.11 |
[1]The evidence reveals the loans in these amounts in US dollars. No evidence refers to any $AUD amount and the parties adopt the US dollar figures contained within the Exhibit. These reasons do the same.
[2] On my calculation, this figure should be $1,058,616.19.
The existing legal and equitable interests in property can be seen to fall into three groups which can broadly be described as the real property, corporate trust group and the superannuation interests and chattels. The liabilities of the parties insofar as they are liabilities of the group, are contained in the valuation of the group.
For the purposes of these proceedings, the corporate entities are, by reason of the control of them, treated by each of the parties as “property of the parties or either of them”[3] and, of course, part of the “existing legal and equitable interests of the parties in property”.[4] It is appropriate to do so on the evidence before me.
[3] Section 79 of the Act.
[4] Stanford v Stanford (2012) 293 ALR 70 at [37]. Emphasis in original.
The issues are:
a)Whether a lease within the corporate structure should be regarded as a “finance lease” or an “operating lease”;
b)How should two motor vehicles owned by one of the corporate entities be valued;
c)Should there be “add backs” and if so, in what amount;
d)Should the student loan owed by the wife in an admitted amount and all or a portion of the credit card debt incurred by her post-separation be brought to account in the sense that, by including those debts within the pool, the husband share in them as liabilities;
e)Whether the husband’s income tax assessment ought be included as a liability of both parties, or whether the husband alone ought bear the debt.
Those issues are relevant to an ascertainment of the parties’ “existing legal and equitable interests.”[5] Once those interests have been identified, the issue is whether, “having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.”[6]
[5] Ibid.
[6] Ibid.
Proof of any or all of the enumerated considerations within s 79(4) is insufficient of itself to alter, by reference to s 79, existing legal (and/or equitable interests). To do so is to “conflate the statutory requirements and ignore the principles laid down by the Act.”[7] Just as marriage gives no licence for any presumption, or starting point, of equality in the assessment of s 79 entitlements[8], so the fact of separation and the proof of any or all of the matters within s 79(4)(a)-(g) gives no licence for an assumption that the existing legal or equitable interests in property should be altered by reference to s 79.[9]
[7]Stanford, above n 4 at [40].
[8] Mallet v Mallet (1984) 156 CLR 605 at 608.
[9]Stanford, above n 4 at [39]-[40].
Here there was a “voluntary separation”.[10] Property, in one form or another, was used commonly and decisions were made by each of the parties about property within the context of a 12-year relationship. Here it can be said that:
the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumptions that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship [has been] brought to an end with the ending of the marital relationship.[11]
[10] As that expression is used in Stanford, above n 4.
[11] Stanford, above n 4 at [42].
Importantly, as can be seen, the plurality in Stanford, (at [41]) referenced the essential initial inquiry to the axiomatically idiosyncratic characteristics of a particular relationship. Equally crucially, there is recognition (at [42]) that many relationships are not based upon specific agreements as to the manner in which property is held or is used. Rather, each is, “in many cases” based on both “stated” and “unstated assumptions” inherent in those relationships.
There is in the majority judgment recognition, too, that, upon a “voluntary separation”, “ … the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end”:
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In the instant case, as both parties acknowledge, their interests in, and the use of, property has not been governed by agreement. So much is evident not only from the absence of any evidence about any such agreement but also by reference to the manner in which the parties made respective contributions to property during the course of their relationship. In short, those contributions and the manner in which properties were acquired and used were based on assumptions, both stated and unstated, emanating from the parties’ and, during its subsistence, the common hopes and plans it embraced. Those assumptions (and the hopes and plans) have altered by reason of the breakdown of the relationship and the “voluntary separation” effected as a result.
The common assumptions upon which property was acquired and used during the currency of the parties’ relationship and which is represented now by the property of the parties or either of them, have been brought to an end by that voluntary separation.
In my judgment, in the circumstances of this marriage it is just and equitable within the meaning of s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) to alter the existing interests in property held by each of the parties to it. That must be done by answering, separately, the questions posed by a consideration of s 79(4) of the Act.
The Nature, Form and Characteristics of the Property
“Finance Lease” or “Operating Lease”
The parties are agreed that the vast bulk of the disparity in the value attributed to the “corporate/trust interests/superannuation” interests contained at item 2 of the above table arises as a result of the parties’ differing contentions as to how the agreement entered into by T Pty Ltd (“T Pty Ltd”) with the “Company 1 Finance Agreement” (“the Agreement”) ought be treated: should it be classified as a “finance lease” as the husband contends, or an “operating lease” as the wife contends? Approximately $20,000 of the difference in value stems from a separate dispute regarding how two motor vehicles owned by a separate corporate entity ought be valued. That issue is dealt with later.
By way of brief background, T Pty Ltd is the corporate trustee of the Marello Family Trust (“Family Trust”). That trust operates as a service entity to the husband’s healthcare practice. T Pty Ltd entered into the Agreement which financed “various equipment and fit out costs…”[12] associated with the practice.
[12] Report of Mr J, attached to an affidavit filed 16 April 2012, at [27].
To date, the agreement has been “accounted for as an operating lease in the financial statements of [T Pty Ltd] … as trustee for the … Family Trust.”
Mr J, a chartered accountant appointed as a single expert to provide, among other things, a valuation of the parties’ interests in T Pty Ltd as trustee for the Family Trust, describes the difference between the two concepts in this way:
A finance lease is a lease that transfers substantially all the risks and rewards incidental to ownership of an asset. Title may or may not eventually be transferred …
An operating lease is a lease other than a finance lease …[13]
[13] Report of Mr J, above n 12, at p 6, footnotes 1 and 2. References omitted. Italics in original.
Subsequent to the report of Mr J, an affidavit was filed on 14 June 2012 (without objection) from Mr K, also a chartered accountant. That report annexes, relevantly, a letter to the husband regarding an analysis undertaken by him of the Agreement. In that letter, Mr K describes the difference between a finance lease and an operating lease as follows:
[T]he primary difference between an operating lease and a finance lease, for accounting purposes, is as follows:
·The payments for an operating lease are simply expensed (treated as a business deduction) as each monthly instalment is paid.
·A finance lease is treated similarly to a loan, in that a liability is brought to account in conjunction with the asset being financed. Business deductions are then claimed in the form of interest on the loan and depreciation of the asset.
Mr K was not cross-examined. He is of the view that the lease is a finance lease. In coming to that decision, Mr K had recourse to a letter from Company 1 (the financier) which states “[w]e confirm that the … facilities which [the husband] has been party to are Finance Leases.” Mr K also “reviewed the relevant accounting standards to come to [his] own determination regarding the type of finance obtained [namely, a finance lease].”
The husband also sets out in an affidavit filed 14 June 2012 the contents of a letter from solicitors acting on behalf of T Pty Ltd. Again, those solicitors were not required for cross-examination. The letter says:
We act for Company 1 …
…
We are instructed both agreements are categorised by Company 1 as finance leases.
Typically a finance lease with embody the following features:
(a)The financier advances the cash price of the equipment or fitout (goods) required by the business leaving the lessee with no initially cash outlay. The lessee then has full use of the goods on agreed terms;
(b)There is an understanding (although not always a legal right) that the lessee will ultimately acquire ownership of the goods.
(c)The position in (b) is usually achieved by agreement between the parties that the assets will remain the property of the financier until the lease expires and the residual value is paid.
(d)Throughout the term the lessee assumes the “ownership” risks of the goods.
We are instructed the agreements with [T Pty Ltd] contain each of the elements of a finance lease listed in (a) to (d) above. For example:
·[T Pty Ltd] is responsible for “ … The entire risk of the loss or damage to the goods”.
·In addition [T Pty Ltd] is required to “ … keep the goods in good repair and condition” and at its ([T Pty Ltd’s] cost) – register, repair and maintain and service the goods.
In a contract under an operating lease, the lessor pays all maintenance and service charges, registration and insurance. By paying these operational charges the lessor is able to supply fully-serviced equipment to the customer.
(Bold emphasis in original).
In addition to the letters from Company 1 and the solicitor, a copy of the Agreement is also in evidence. Of particular relevance are the following clauses:
8.4You assume all risks and liabilities arising from the use and possession of the goods.
…
9.1.You must at your expense:
(1)keep the goods in good repair and condition;
(2)take proper care of the goods; and
(3)maintain and service the goods in accordance with the manufacturer’s specifications.
…
10.1You bear the entire risk of the loss or damage to the goods.
…
11.1 You must keep the goods insured during the term …
…
11.3You must pay all premiums and other charges in relation to the insurance.
…
(Italics in original).
The following provisions from the Australian Accounting Standards Board (“AASB”) “AASB 117 Leases” are directly relevant:
Classification of Leases
7 The classification of leases adopted in this Standard is based on the extent to which risks and rewards incidental to ownership of a leased asset lie with the lessor or the lessee. Risks include the possibilities of losses from idle capacity or technological obsolescence and of variations in return because of changing economic conditions. Rewards may be represented by the expectation of profitable operation over the asset’s economic life and of gain from appreciation in value or realisation of a residual value.
8 A lease is classified as a finance lease if it transfers substantially all the risks and rewards incidental to ownership. A lease is classified as an operating lease if it does not transfer substantially all the risks and rewards incidental to ownership.
Mr K was of the “opinion that the risks and rewards lie with [T Pty Ltd] and not the lessor, and as such the [Agreement] should be classified as a finance lease …” Mr J expresses no opinion as to whether it is more appropriate or otherwise to treat the lease as an operating lease or a financial lease, and sees that it is outside the area of his expertise as it is essentially a legal question. He was not cross-examined about that view.
I consider, by reference to clauses 8.4, 9.1 and 10.1 of the Agreement extracted above, that the risks and rewards incidental to ownership of the equipment have been substantially transferred to T Pty Ltd. That the risks associated with ownership are borne by T Pty Ltd is also evident in the (unchallenged) valuation of the equipment undertaken by single expert witness, Mr L.
The husband’s practice was inundated during the 2011 Brisbane floods. Annexed to the joint letter of instruction to Mr L is a list of equipment to be valued. The letter is signed jointly by the legal representatives then acting for both parties. The attached list is referred to in the letter. I find that the wife agreed to the description of the assets contained in the list. That is significant in the current context because the list details whether the items of equipment had been damaged as a result of the floods; several items had been damaged and that damage was factored into Mr L’s valuation (which the wife did not subsequently challenge). Plainly, the risks associated with ownership, including the risks of damage from natural disasters, were in that instance, in fact borne by T Pty Ltd.
Further, as clauses 11.1 and 11.3 of the Agreement make plain, it is T Pty Ltd’s responsibility to keep the equipment insured. The insurance is against risks associated with ownership of the goods. Additionally, given the nature of the equipment, there is the risk of obsolescence as identified in Mr L’s valuation.
Against the evidence just outlined it seems that the sole evidentiary basis for the wife’s contention that the Agreement ought to be considered an operating lease is the status quo; the Agreement has been treated as an operating lease since inception and, accordingly, it ought to continue to be considered in that manner. The husband contends that the prior treatment of the Agreement as an operating lease is incorrect and relies upon the evidence of Mr K, together with the correspondence from Company 1 and its lawyers, to contend that the Agreement is, in fact, a finance lease. The accounting is, he says, an error on the accountant’s part.
I consider it neither particularly surprising, nor sinister in this case, that upon analysis and/or investigation by single experts or other suitably qualified individuals in the context of court proceedings, anomalies, or indeed errors, in existing accounting practices are found.
The preponderance of the evidence points strongly to the lease being treated, for present purposes, as a finance lease and not an operating lease, and I so find.
The consequence is that I accept the value of the business proffered by the husband.
Taxation Issues Arising from Finance Lease
That finding raises the further issue of what accounting and/or taxation issues arise as a result of recording the Agreement as a “finance” rather than “operating” lease.
Mr J opines that “if it was … determined that the Agreement was a finance lease, then the financial statements and income tax returns of T Pty Ltd … as trustee for the [Family] Trust for the years ended 30 June 2008 to 30 June 2011 (inclusive) would need to be amended.”[14] Mr J similarly observed that if such amendments were to occur, that would “affect the financial analysis” of T Pty Ltd undertaken by him. However, as “there has been no confirmation yet as to the accounting treatment that will be applied in relation to the Agreement … I have not made any adjustment to the analysis …”
[14] Report of Mr J, above n 12 at [29].
Mr K did, however, consider the impacts of reporting the Agreement as a finance lease on the accounting and tax reporting requirements of T Pty Ltd. In a further letter sent to the husband on 14 February 2012 and annexed to Mr K’s affidavit, Mr K noted that in recording the Agreement as a finance lease, T Pty Ltd’s accounting profit had decreased by almost $70,000 across the three financial years from 2009 to 2011 whilst the net income for tax purposes had increased by almost $40,000 in that same period. As a result of those changes, and in particular the latter, the parties’ child, D’s tax liabilities had increased by $14,580 across those three years as a result of his being the default beneficiary of the Family Trust.
The additional tax liability of D is accounted for; it is included in the unpaid income tax liability attributed to the husband in the above table.
Valuation of Motor Vehicles
The parties are also in dispute regarding the value of two motor vehicles owned by the “Marello Healthcare Group” (“the Group”). In his report, Mr J noted that at the time he did his report (early 2012) the parties were agreed as to the value of each of the cars. Taking into account depreciation, Mr J attributed a value of $170,000 for both cars.
The wife relies upon that valuation. The husband, however, contends that the cars are worth less at trial than they were in early 2012. The husband relies upon Red Book valuations for each of the cars and proposes a value of $150,500 for both vehicles. Both vehicles are subject to “hire/purchase” lease agreements the liabilities in respect of which, at the time of Mr J’s report, totalled $207,820. The parties were agreed that the total of the lease agreement liabilities as at the date of trial was $144,653.
The wife seeks to rely upon Mr J’s valuation at January 2012, but to rely upon the level of liabilities as at trial. That is, the wife contends that it is just and equitable to take account of the (significant) movement in the debt, but to assume there has been no movement in the value of the assets within the same approximately 12 months. Counsel for the wife submitted that the “best evidence” of value before the Court was that of Mr J. There was, according to counsel, no evidence before me of the state of the vehicles or the odometer readings on same and, as such, I could not accept the Red Book valuations as properly reflecting the current values of the vehicles.
In his report, Mr J says that the values he relies upon are the “advised agreed market values”. There is no evidence before me as to what the parties relied upon at that time to advise Mr J of “agreed market value”. The only evidence before me of the current value of the vehicles is the Red Book valuations. The wife provides no other evidence to counter those values. Importantly, as it seems to me, the vehicles are assets of the Group and the financial statements and tax returns of the Group attribute to them accumulated depreciation, claimed in the tax returns for the Group. I infer that it continues to be claimed.
I consider it just and equitable to adopt the values of the vehicles proposed by the husband and the values of the liabilities at trial.
Wife’s Student Loan
The wife asserts that a student loan, which has almost doubled since 2000 as a result of interest and late payment charges, ought to be included when ascertaining the parties’ respective “existing legal and equitable interests”. The husband contends in response that the debt was incurred prior to the parties’ relationship and, as such, ought not to be taken into account.
There is no dispute that the wife’s present student loan is in excess of US$116,000. In an affidavit filed 30 April 2012, the wife states, in the context of considering the parties’ assets and liabilities at the commencement of the relationship and upon moving to Australia (1997-1998), that she had a student loan of US$57,700. In cross-examination, the wife said that whilst she could not be sure of the precise amount of the loan prior to cohabitation, she thought it was in the vicinity of US$50,000. A document from the US Department of Education (Exhibit “R10”) indicates that, as at 15 March 2000, the balance of the wife’s student loan was US$68,496. The wife conceded in oral evidence that interest has been accruing on that amount since then. The wife provides no evidence in support of the figure of US$57,700; the best evidence is the figure contained in exhibit “R10”. I adopt that as the amount of the wife’s student loan owing as at the date of cohabitation.
As at that date, the wife had obtained a Bachelors Degree and a US professional degree. The wife had also commenced her PhD. Following cohabitation, the wife completed her PhD and a Masters in another discipline. Upon relocating to Australia with the husband, the wife undertook a Graduate Certificate and also completed a Professional Degree (although it is agreed that the costs of the latter degree are not included in the student loan). The wife subsequently completed registration in this profession.
The wife had worked remuneratively as a professional practitioner in the United States before relocating with the husband to Australia. Significantly, the wife was working as a practitioner in the United States at the time the parties commenced cohabitation and continued to work in that capacity until relocating to Australia. Upon relocating, the wife gained employment in this profession (notwithstanding the fact that she did not have a recognised degree for the purposes of practice in Australia) in Brisbane. Whilst working at that firm, the wife was offered, and accepted, a position as associate lecturer at a University. The wife continued to work in varying capacities at that University until her appointment as a senior public official in late 2009.
It is impossible to quarantine the qualifications of the wife which led to her employment upon arrival in Australia. There is no evidence before me of the amounts of the student loan attributable to each qualification. What is clear, however, is that the wife secured employment in Australia at a time when the only qualifications she had were those obtained in the United States the payment for which, together, form the basis of the current liability. Whilst the wife did, ultimately, obtain a recognised degree in Australia, and later completed the requirements for professional registration, there is no dispute that the wife worked remuneratively in an academic capacity on the basis of her earlier qualifications prior to obtaining those qualifications. Further, as the husband himself recognises, the wife “obtained significant credit for her previous qualifications towards the [Australian] Bachelors degree.”
That a significant amount of interest and late payment fees has accrued on the loan is not, in my view, solely attributable to the wife nor did I take the husband to so suggest. The husband and wife, as parties to their particular marriage partnership, determined as between themselves how to arrange their finances; how they dealt with the wife’s student loan was but one of a myriad of matters dealt with. There is nothing to suggest that the wife has consciously or intentionally (or recklessly or negligently) failed to make payments in respect of her student loan. Rather, the evidence before me indicates strongly that the approach taken to the repayment of the loan was accepted by both parties as being appropriate.
I do not accept the submission made on behalf of the husband that, because the loan was incurred prior to cohabitation, the wife alone should bear it. The qualifications to which the student loan refers founded the wife’s employment whilst the parties cohabited in the United States and upon relocation to Australia. That pertains, in particular, to her employment with the University which continued until shortly prior to separation.
In light of the above findings it is irrelevant whether the wife had, as submitted by counsel for the husband, a second student loan which funded studies completed in Australia and was paid out during the marriage. A finding that this is so does not affect my determination that the loan(s) funding the wife’s studies prior to the commencement of the relationship ought, together with subsequent interest, not be included as a liability borne by each of the parties in circumstances where both parties, in effect, benefited from the fruits of those loan(s).
I consider it just and equitable that the parties share in the liability.
Loan from the Wife’s Mother
The wife deposes that “it became necessary” in July 2012 to obtain a loan from her mother in an amount of US$24,000. The wife claims that she required the funds “in order to pay the arrears owing on …loans. Had I not taken this step, the bank would not release the security it held over [home unit owned by the parties], and this would have prevented the sale of the unit … proceeding.”
In support of that contention, the wife annexes to her affidavit filed 21 January 2013 email correspondence with Senior Lending Manager at the Suburb M branch of the St George bank, together with a document entitled “Promissory Note”. The latter, which is signed by the wife’s mother and dated 13 July 2012 (although the date accompanying the mother’s signature is 24 June 2012) states:
This is a personal loan to [the wife] to help her pay financial obligations that her former husband … has failed to pay, and which have resulted in her mortgage in relation to [the former matrimonial home] being in arrears … Currently owing is the sum of Twenty Four Thousand U.S. Dollars at an interest rate of 9.010% per annum, compounding.
The full balance of this loan is outstanding and due to be repaid by December 31, 2012.
Counsel for the husband contends that, to the extent that the loan is legitimate – in the Biltoft and Biltoft (1995) FLC 92-614 and Af Petersens and Af Petersens (1981) FLC 91-095 sense, a fact not conceded by the husband – it ought not be included in the pool on the basis the Court “would not have the confidence of the evidence that the loan from the [wife’s] mother was not used either wholly or in part for [the purposes of paying legal fees], even though the wife swears it was not.”
Counsel for the wife contends that the Court would be satisfied that the wife applied the moneys to arrears outstanding on the St George loan facilities secured over the parties’ real properties. In support of that contention, counsel for the wife points to various documents annexed to the wife’s affidavit filed 21 January 2013. Those documents, specifically several customer receipts from the St George bank, reveal payments in excess of $100,000 by the wife to various loan facilities over a six month period in 2012. It is uncontroversial that the wife has been the primary source of repayments in respect of the parties’ St George loan accounts (including the overdraft account used by the husband’s healthcare practice) since February 2012.
I accept the wife’s evidence that she received US$24,000 from her mother in July 2012 and applied those funds towards the repayments just referred to.
It does not, however, automatically follow that the loan is included as an existing indebtedness of the wife. According to the “Promissory Note” evidencing the loan, repayment in full, together with interest was due by 31 December 2012. There is no evidence before me of any repayment made by the wife. Indeed, whilst referring to the loan from her mother in her affidavit filed 21 January 2013, the wife makes no reference to any repayments she has made in respect of same. Further, the principal alone is sought to be included, notwithstanding the fact that the “Promissory Note” expressly states that interest is payable upon the principal at rate of 9.010 per cent per annum, compounding.
The extent of the evidence from the wife’s mother in respect of the alleged loan is confined to the “Promissory Note” which, it ought be noted, was witnessed by a “Notary Public”. The wife provided no reasons for why her mother did not file an affidavit in these proceedings, (albeit that she is resident in the United States). It was not suggested that I ought draw an inference that the evidence not called from the wife’s mother would not have assisted the wife (Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [64]). Further, I have no evidence before me regarding the circumstances of the wife’s mother and, as a result, cannot be satisfied that the wife was “plainly in a position to … call …” evidence from her mother.
I draw no inference regarding whether or not evidence of the wife’s mother would have assisted, or not assisted, the wife. I consider, however, that the evidence before me is not such as to persuade me that the loan ought be included as a liability of the parties (see Biltoft and Af Petersens).
That is not, it should be noted, a finding that there is no loan nor a finding that account might not be taken of it as between mother and daughter (including its partial or total repayment) at some later time. Rather, it is a finding that it is not just and equitable for that liability to be shared between the parties. In light of the finding that the amount was advanced and its use, it ought be considered a contribution by the wife.
The Wife’s Credit Card
The wife concedes that the $19,446.87 credit card debt she seeks to include as a liability arose entirely post-separation. It is on that basis that the husband opposes its inclusion as a liability of the parties.
Counsel for the wife contends that the debt ought to be included on the basis that it was used to primarily cover expenses associated with the parties’ children and, consequently, ought be considered a joint liability of the parties.
Counsel for the husband points out that the wife incurred the credit card debt in the context of her having access to at least $5000 per month from a separate joint credit card pursuant to undertakings filed by the parties on 6 December 2010 and 21 January 2011 respectively. I also note that the husband has excluded his post-separation credit card debts.
In those circumstances, I do not consider it just and equitable for the husband to share in the liabilities owing by the wife on her credit card. That is, it ought not be included as a liability of the parties.
Conclusion: “Existing Legal and Equitable Interests”
Taking account of the findings earlier outlined, I find the existing interests in property of the parties together with the value of that property as at the date of trial is as follows:
ASSETS
| Ownership | Description | Value | |
| 1 | Joint | F Street, Brisbane Suburb 2 (former matrimonial home) | $1,850,000.00 |
| 2 | Wife | B Street, Brisbane Suburb 1 | $500,000.00 |
| 3 | Joint | Corporate/Trust Interests/Superannuation (husband’s healthcare practice) | -$1,098,152.00 |
| 4 | Joint | Goods and Chattels located at B Street property | $41,029.00 |
| 5 | Husband | Goods and Chattels located at Husband’s property | $8,639.00 |
| 6 | Joint | Wine Collection | $23,099.00 |
| 7 | Wife | Jewellery | $8,385.00 |
| 8 | Husband | Jewellery | $175.00 |
| 9 | Wife | Motor vehicle 1 | $Nil |
| Total of assets | $1,333,175.00 | ||
LIABILITIES
| Ownership | Description | Value | |
| 10 | Joint | A/c no … – B Street | $(276,613.00) |
| 11 | Wife | Company 1 Bendigo & Adelaide Bank loan no … – B Street | $(399,200.00) |
| 12 | Wife | Student loan | $(116,591.01) |
| 13 | Wife | Novated lease –motor vehicle 1 | $Nil |
| 14 | Wife | Westpac Mastercard | $Nil |
| 15 | Wife | Wells Fargo Visa | $Nil |
| 16 | Husband | Income Tax assessed and unpaid | $(29,998.00) |
| Total liabilities | $(822,402.01) | ||
SUPERANNUATION
Member Name of Fund Value 17 Wife G Super Accumulation Fund $259,591.09 18 Husband H Super Accumulation Fund $5,530.98 Total superannuation $265,122.07 SUMMARY
| Gross value of Assets | $1,333,175.00 |
| Liabilities | $(822,402.01) |
| Net Value of Assets | $510,772.99 |
| Superannuation | $265,122.07 |
| Net Assets plus Superannuation | $775,895.06 |
Contributions
The parties are agreed that their respective contributions to the date of separation should be seen as equal. I agree. It is however appropriate to give a very brief overview of those matters which I consider properly lead to that conclusion.
The parties commenced cohabitation in the United States in 1997. Prior to their relocation to Australia, the parties lived in a home owned by the wife. It is uncontentious that the wife was responsible for mortgage repayments and other expenses associated with that home, with the husband contributing $400-$500 per month. Upon relocating to Australia, the wife sold her home and, it is agreed, the net proceeds were applied to joint expenses and for mutual benefit.
The husband contends that he owned a property as at the date of cohabitation. I accept the evidence of the wife, which is supported, among other things, by a copy of a Transfer form from the Queensland Land Registry, that the husband transferred that property to his parents in October 1996 (i.e. prior to the commencement of the parties’ relationship).
Upon relocating to Australia, both parties commenced remunerative employment. (The wife contends that she alone was the source of income in the first six months after the parties’ relocated, little turns on that in the context of a 12-year marriage and the parties’ own assessment of contributions to the date of separation). The husband bought into the healthcare practice in Brisbane.
Aside from short periods of maternity leave taken by the wife, both parties worked remuneratively during the relationship. The husband sold his share in the Brisbane practice in 2008 and subsequently opened his own practice.
Again, whilst there is some dispute as to the parties’ respective contributions in the role of homemaker and parent, I do not consider it necessary, or indeed appropriate, in light of the parties’ agreement to determine who, if either, contributed more in that respect. I do note, however, that the parties’ middle child, D, suffers from a severe form of Autism and requires significant assistance. The parties have also had assistance in the form of babysitters/nannies/au pairs both during the relationship and post-separation.
Post-separation
Whilst, it seems, the parties were initially agreed that contributions to the date of trial were also equal, it was the wife’s position at trial that her post-separation contributions outweighed those of the husband.
I asked counsel for the wife what the wife sought “in percentage terms of the available pool” to which counsel responded “94 per cent”. Counsel did not delineate between an assessment of contributions and the so-called “s 75(2) factors” in proposing that percentage. It is, however, clear that it is the wife’s position that the post-separation contributions and relevant s 75(2) factors warrant a disparity between the parties of 88 per cent, in her favour. As a result, the wife must contend axiomatically that the post-separation circumstances and issues extending into the future warrant that 88 per cent disparity.
I confess to some considerable difficulty in ascertaining the evidence, or indeed any submissions ultimately made on behalf of the wife, that could sustain any such finding.
As initially framed, the basis for the wife’s arguments appeared to emanate from a contention that the husband’s conduct in drawing down loan facilities secured over the parties’ real properties ought result in the balance of what was described at trial as “an overdraft facility” in an amount of $717,000 “added back” as against the interests of the husband. The husband obtained expert evidence from Mr K directed to this issue. Mr K says he “review[ed] the transactions of the St George loan accounts to determine where the funds of $717,000 were used”. Mr K was not cross-examined in respect of the evidence given in respect of the task just described. No evidence of the wife (save for her contentions) challenged otherwise his evidence. Mr K determined that the $717,000 “does not directly represent drawings of a private nature of [the husband], save and except for the $26,988k transferred to the former home mortgage.” That transfer to the “former home mortgage” occurred prior to separation (in December 2009) and is not the subject of any dispute between the parties.
The nature of the submission made on behalf of the wife changed. She did not, ultimately, press her claim for “add-back” of that sum. Rather, it was contended that withdrawals by the husband from, essentially, that account, in an amount of approximately $503,000 was “wasteful” or “illegitimate” expenditure. Those descriptions, it will be appreciated, have resonance as descriptions of conduct which might found a claim that funds be “added back”. (See, for example, Kowaliw and Kowaliw (1981) FLC 91-092, per Baker J and Omacini & Omacini (1995) FLC 93-218). However, the wife’s submissions were framed in post-separation contribution.
It is argued that the wife’s contributions to the preservation of the parties’ real property by way of needing to meet arrears and interest repayments on the loan facilities, was exacerbated by the husband’s withdrawals resulting in an increase in the monthly repayments. That came, she argues, with considerable difficulties on her part and she argues, in effect, that but for her efforts property would have been lost or other such dire consequences.
The wife’s claim is not sustained by the evidence.
During oral submissions, counsel for the wife conceded that the evidence revealed that, of the $503,000, approximately $416,000 had been spent by both parties on their respective legal fees and that neither party had claimed an “addback” in respect of same. The husband gave affidavit and oral evidence that the remainder of the $503,000 was used to cover “overheads” of the practice, including the cost of repairs following inundation during the Brisbane floods which the husband estimated to have cost $85,000. Again, that figure was initially challenged by the wife but, during oral submissions, counsel for the wife conceded, that, on the evidence before the court, the wife could not dispute the value attributed by the husband to the repairs.
As a result of those concessions, the position of the wife regarding the $503,000 was narrowed to what was described as the “differential legal fees”; that is, a $46,000 difference between the amount expended by the husband on legal fees and the amount expended by the wife. Counsel for the husband submitted that this difference was “cancelled … out” by sums withdrawn by the wife in excess of $5000 per month, in contravention of the undertaking referred to earlier. Whilst initially submitting that $36,000 was the total of those amounts, in reply counsel for the husband conceded that the total was in fact $13,000. Despite the wife’s denial, I consider the evidence supports a finding that $13,000 was withdrawn in excess of the undertaking.
The result of the respective concessions of each counsel and my findings is that there was a $33,000 increase in the loan facilities for which the wife bore sole responsibility in terms of repayments since early 2012.
Those circumstances and that sum might provide, then, a foundation for a finding of greater post-separation contribution having been made by the wife in the manner (ultimately) contended for.
That finding also depends, at least in part, on a finding that it was reasonable to retain the properties over which the loans were secured (as opposed to selling them and using the proceeds to retire debt). I raised this point with counsel for the wife in light his submission that the wife “effectively preserved what has become the jewel in the crown [namely, the former matrimonial home].” As I pointed out to counsel, the wife now concedes that this property must be sold. There is evidence of correspondence from the legal representatives then acting for the husband to the wife’s legal representatives in March 2012 seeking the wife’s consent to the sale of the former matrimonial home to reduce the increasing liabilities (Annexure “MNM-17” to the husband’s affidavit filed 13 June 2012”). It also bears noting that, in April 2012, Mr K sent a letter to the husband indicating that a “net cash deficiency of $102,290” was forecast for the June 2012 quarter.
There is no doubt that the wife wanted to keep the former matrimonial home for a number of reasons, not least of which was to maintain stability for the children and D in particular. I do not consider her behaviour in doing so to be wanton or reckless or negligent. Indeed, within the context of a highly conflictual separation, it might be considered, at least arguably, reasonable.
The evidence before me leads clearly to a finding that the transactions involving the $717,000 overdraft facility were legitimate business transactions (save for the $26,000 transfer to the parties’ home loan which occurred prior to separation and which is not challenged by the wife). Ultimately, the wife’s case as to “wasteful” or “illegitimate” expenditure comes down to a claim, in monetary terms, that only an amount confined to $33,000, could possibly meet those descriptions. Ultimately, counsel for the wife conceded during oral submissions, as in my view the evidence compelled, that there is simply no evidence before me from which I can conclude that the husband’s conduct surrounding the withdrawals from the loan facilities and the transfers from the overdraft was anything other than legitimate, necessary or reasonable.
In a similar vein, the wife’s challenge to the husband’s claim that the practice experienced a downturn in profits following the Brisbane floods is not borne out by any reliable evidence in support of the contention.
Mr K, in a letter to the husband dated 12 April 2012, outlined the net profits for the years 2009 – 2012 which revealed that the profits in 2011 had increased on 2010 by almost $67,000. In that letter, Mr K also stated, in forecasting a projected deficit in the June 2012 quarter of over $100,000:
We anticipate that the practice’s net profit will decrease by $186,099 or 44% when compared to the 2011 result (an after tax decrease in $103,313 or 41%)
The downward profit trend can be attributed to an overall depressed economy. We note that the [Heathcare] Association’s Queensland President, [Mr N], first referred to the downturn in his May 2011 article and more recently [O Advice] (specialist advisers to [practitioners]) referred to the challenges being faced by [healthcare businesses] in the current economic environment in its August 2011 newsletter.
There can be no doubt that the wife has had the primary care of the children post-separation. The existing arrangement has seen the husband spending alternate weekends with the children and one night per week (amounting to five nights per fortnight). As mentioned earlier, the parties’ son, D, suffers from a severe form of Autism necessitating constant supervision and assistance. The wife has had the assistance of an au pair post-separation. The husband, too, concedes he has had assistance from his family in respect caring for the children, particularly on a Saturday morning when he takes C to his sporting activities.
I assess the wife’s post-separation contributions in this respect to have been very significant and, as I assess it, greater than the husband’s.
Conclusion as to Contributions
Contrary to the manner in which many applications for property settlement are run in this Court, it must always be remembered that the process required of the Court is the exercise of a broad discretion in respect of which reasonable minds can differ. It is neither an accounting exercise nor an exercise in mathematics (see, for example, Norbis v Norbis (1986) 161 CLR 513 at 522 and Brandt and Brandt (1997) FLC 92-758).
Yet, of course, as was said by Coleman J in Steinbrenner & Steinbrenner [2008] FamCAFC 193:
234.Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.
Moreover, any adjustment (and resulting disparity between the parties) needs to be seen in terms of its dollar value – as distinct from an apparently arbitrary percentage figure (see, for example, Clauson and Clauson (1995) FLC 92-595 at 81,909).
Taking account of all of the matters which I consider to be relevant in respect of contributions as earlier outlined, I consider that the contributions up to the date of separation might be seen as equal but, that the contributions in the post-separation period favour the wife.
An assessment of 55:45 per cent in favour of the wife results in a disparity between the parties of approximately $77,600. In my judgment, that is just and equitable.
Section 75(2) factors
The wife has recently turned 43 years of age; the husband will turn 43 in a few weeks.
Both parties are in good health although the wife suffers from a benign tumour on her pituitary gland which requires ongoing specialist treatment. The wife was also diagnosed with a medical condition in 2010 which carries an increased risk of breast cancer although it has no affect on her present day-to-day life.
I regard the husband’s current income and future income-earning capacity as superior to that of the wife. The husband remains self-employed in his practice. The husband’s 2012 taxable income was $283,583 (see Part O to the Financial Statement filed by the husband on 8 January 2013). He deposes to an intention to remain working as a healthcare practitioner until he is 55 years of age. The husband also continues to conduct seminars in his field of speciality. The wife is currently employed as a senior public official for which she receives $3,241 per week before tax (or, approximately $178,000). The wife also deposes to infrequent publishing and academic work which she estimates provides $153 in income.
The husband currently has a girlfriend although they do not reside together. The wife, resides with her partner who is also a member of the same public body. He is also an officer in the armed forces which he estimates resulted in his receiving approximately $20,000-$25,000 in 2012. Both the wife and her partner deny intermingling their finances. The wife’s partner pays the wife $435 per week for “board” (being the amount previously paid by him as rent whilst he and his children were residing at the B Street property). He also purchases food for the entire household when his children reside with him (which is each alternate weekend and one evening per week for four of his children and at his eldest child’s discretion).
As a result of the parenting orders which I will make, the wife will remain the primary carer of the parties’ children, the youngest of whom has recently turned seven years of age. I have also earlier made reference to D (nine) and his significant disabilities. He will likely require considerable assistance throughout his life.
The husband has previously been assessed to pay child support in the sum of $1,362 per month. However, that assessment has been “stayed” by consent of each the parties as a result of the undertakings earlier referred to and the concomitant access by each to $5000 per month.
The parties are agreed that the former matrimonial home will be sold. That will require a change in residence by the wife and her children. Future housing needs are exacerbated by D’s requirements, including the need to ensure that any home into which the wife moves is safe. I note, however, that the husband has lived in two properties post-separation and D has regularly spent time in those properties without significant issue. I also note that it is proposed by the husband that the wife shall retain the property at B Street, although I am conscious of the difficulties flagged by the wife in terms of the location of that property and, in particular, in terms of transporting D to school each day.
Conclusions as to s 75(2) factors
A consideration of the matters earlier discussed leads me to conclude that an adjustment ought be made in favour of the wife. Taking into account all of the factors I consider to be relevant, I assess that an adjustment of 5 per cent (a disparity of about $39,000 based on the pool as determined by me) in favour of the wife is warranted.
Conclusion as to Property Settlement
I conclude that:
a)The existing property interests of the parties should be adjusted; and,
b)They should be adjusted so as to effect a division of the value of those interests as to 60 per cent to the wife and 40 per cent to the husband.
Justice and Equity of the Proposed Orders
Regard should be had to the means by which the property adjustment is to be effected.
The effect of the proposed division can be examined by reference to the list of property and values, as found.
The parties are in dispute in respect of several chattels. As I flagged with counsel during the trial, I grapple with the notion that, absent special considerations, judicial discretion can legitimately extend to a determination as to who retains possession of a wall mirror. However, the parties in this case have validly invoked the jurisdiction of this Court and, with it, its discretion and the requirement to determine what intelligence and commonsense might otherwise permit parties to agree upon. It seems that the Court is required to make a finding as to who retains certain chattels. Doing the best I can, I consider that the “sentimental” issues referenced to the wall mirror, piano and personalised numberplates point to it being just that the husband retain them and the utility of the workbenches points to the same conclusion.
I consider, then, that the husband ought retain possession of the following items:
· A wall mirror “retrieved from one of [the husband’s father’s] properties and restored”;
· A piano given to the husband and sister by their grandmother in their early teens;
· Workbenches currently located in the former matrimonial home but which do not constitute fixtures; and,
· A personalised number plate.
Based upon the valuation conducted by Mr K, upon joint instruction, those items have a combined value of $1015.
Leaving aside those items, and the wine collection which I will address in a moment, orders should reflect that the furniture currently located at the former matrimonial home be divided by agreement. The legal practitioners for the parties, or the parties themselves if they are not legally represented, can devise a “first choice/second choice” system if agreement is not otherwise possible.
Neither party wishes to retain the wine collection and there is a dispute as to whether it has decreased in value as a result of a removal of some of it by the husband. There is no evidence to support any such contention. As canvassed with counsel for each of the parties during oral submissions, orders should provide for the wine collection to be sold and the net proceeds distributed so as to give effect to the proportion earlier determined.
The parties are also in disagreement as to how the wife’s interest in the parties’ self-managed superannuation fund (“Marello Super Fund”) ought be treated. The effect of the orders sought by the wife is that her interest be rolled-over in its entirety to the husband together with other ancillary orders removing her from involvement in the fund. The husband says that he does not want the wife’s interest. The effect of such an order is that the fund would remain as it is. Neither party satisfies a vesting criterion and many years remain before either party’s interest can vest.
Although not specifically spelled out, it is assumed that the wife seeks that the value of the superannuation interest held by her in that fund should be received by her in tangible assets. The nature of the two interests are, of course, quite different. The wife’s current superannuation interest cannot be accessed until she satisfies a vesting event – something unlikely to occur in the usual course of events for well over ten years. The same can be said of the husband’s superannuation interest. Other statutory restrictions apply to the manner in which superannuation interests can be dealt with while they remain as superannuation. Tangible assets of similar amount can, of course, be dealt with as the legal and equitable owner of them might please. Further, it ought not necessarily be assumed that the valuation (or, more accurately, “amount”) of a superannuation interest is represented by tangible assets of the same value (although no submissions were received on this point).
Thus, it can be seen how the husband would argue that it is unjust and inequitable for him to receive a superannuation interest with an attributed amount of $137,220 in exchange for the wife receiving tangible assets to the same amount. There is validity in that argument.
However, the resolution of that issue is, as with all relevant issues within the s 79 process, to be determined by reference to what is just and equitable.
A number of factors inform that decision in this case. First, is the plethora of matters upon which the parties disagree and have since separation disagreed – many of which can, on any view, be seen as of the most trivial kind. There is high conflict between them and it seems unlikely to abate. There is a need, as s 81 dictates, to bring the financial relationship of the parties to an end. In this case that need finds acute representation in the self-managed superannuation fund and all the more so given the length of time until relevant vesting events can occur. The wife will, pursuant to my orders have the predominant care of the children, in particular, D. She has a need for tangible assets. I assess the husband’s earning capacity to be greater. I assess the husband to be in a better position to “earn his way out of” the financial consequences that separation brings. I assess the wife as having a greater need for immediate tangible assets than the husband.
I have determined that it is just and equitable to make orders to the effect that the wife’s superannuation interest be rolled over to the husband by splitting order and for the wife to take up that interest, at that amount, in tangible assets as part of the alteration of property interests.
The parties are agreed that the wife shall retain the B Street property. They are also agreed that the wife shall indemnify the husband in respect of the “Company 1 Bendigo & Adelaide Bank loan” secured over same which has a current balance of $399,200. I see no reason why such orders are not just and equitable.
The wife, in the further amended initiating application filed by leave by her on 13 February 2013, seeks an order that, pending settlement of the sale of the former matrimonial home and the removal of the wife from the parties’ various corporate entities, the wife “be entitled to … credit expenses totalling up to $5,000 per calendar month …” No submissions were directed to this order or, more accurately, its continuation. It is, in effect, an agreement as between the parties that accommodates any potential claim for interim spousal maintenance and in lieu of child support pending the determination of these proceedings. I consider it appropriate that it ought apply until the sale of the former matrimonial home settles.
The parties are agreed that upon sale of the former matrimonial home, the St George “overdraft facility” and loan will be repaid. That will result in the wife retaining the B Street property subject to a mortgage with a current balance of $399,200.00 and the value of the Marello Healthcare Group (and, consequently, Item 3) increasing by the balance of the overdraft facility. Again, I consider those orders appropriate.
Subject to the above findings, I find orders as described giving effect to the earlier adjustment as found to be just and equitable in all of the circumstances of the case.
The parties requested the opportunity to formulate Minutes of Order giving effect to my findings having had the opportunity to take such legal and financial advice as they might wish. I consider that course to be appropriate, but only insofar as it takes account of the findings made by me or as might otherwise be agreed in writing.
I cannot, however, countenance that opportunity causing yet further disagreement and yet further expenditure on legal fees. I cannot see that the process involves any particular difficulties. I will, then, make orders to the effect that if agreed minutes are not forthcoming within 28 days, the matter be listed before me or another Judge, in which event, each of the parties shall file all such material as might be necessary so as to determine the issue of costs of and incidental to that appearance and the settling of the minutes of order.
In summary, subject to further or other written agreement between the parties, the orders will encompass:
·The former matrimonial home located at F Street being sold and the net proceeds after payment of the usual attendant fees and expenses being applied to the repayment of existing St George loan facilities;
·The wife retaining B Street in her sole name and indemnifying the husband in respect of the loan secured over same;
·The husband retaining the:
oRestored wall mirror;
oPiano;
oWorkbenches currently located in the former matrimonial home; and,
oPersonalised numberplate.
·The remaining chattels currently located in the F Street property being distributed between the parties as agreed in writing or, failing agreement, via an agreed “first choice/second choice” system agreed between the parties’ legal practitioners or the parties if they are not represented;
·The wife retaining the motor vehicle and jewellery;
·The wife retaining the alternative personalised number plates
·The wife returning to the husband the SUV motor vehicle with such vehicle bearing number plates;
·The parties being discharged from the undertakings filed in these proceedings;
·The husband retaining the corporate group and the parties doing all such things and signing all such documents as might be necessary to remove the wife from the corporate entities and trusts within that group;
·The wife rolling over to the husband via splitting order her interest in the self managed superannuation fund and orders otherwise removing her from the fund and its trustee;
·The parties otherwise retaining their other superannuation interests;
·The parties listing the wine collection for sale.
The parties will deliver agreed minutes within 28 days.
Parenting
Both parties are, to their credit, agreed that the children enjoy meaningful and mutually beneficial relationships with each of their parents (s 60CC(2)(a); Sigley v Evor (2011) 44 Fam LR 439). Mr P, who most recently observed the children with their parents in March 2012, observed “humour and affection” between the children and their father and opined that “[b]oth parents have much to offer the children.” I agree.
There are no issues of family violence and neither party contends that the children are at risk when in the other parent’s care (s 60CC(2)(b)).
Parental Responsibility
Each of the parties seeks an order for “equal shared parental responsibility” in respect of the children and, in so doing, mirror the Act’s rebuttable presumption (s 61DA).
The s 61DA presumption does not apply where there has been “abuse” or “family violence” (s 61DA(2)), and is rebuttable where equal shared parental responsibility is not in the children’s best interests (s 61DA(4)). There are no issues regarding abuse or family violence in these proceedings. The question, then, is whether the presumption is rebutted by reason of the children’s best interests or whether an order to that effect accords with same.
Section 65DAC makes it clear that those who share parental responsibility (including “equally”) in respect of “major long-term issues” are required to make joint decisions and to consult and attempt to reach agreement in order to do so. Carrying out those tasks and obligations, on what might be a regular basis, particularly when, as here, the parents are in high conflict, carries with it potential significant difficulties. I am aware of the difficulties these parents have encountered in parenting their children post-separation, including the husband being forced to cancel a trip with the children to Europe. There is cause for pessimism about their capacity to do that which s 65DAC requires.
However, I consider that the stress of these proceedings and, in particular, the property dispute, has exacerbated their conflict. I am hopeful that once the property dispute between them has been finalised, they each recognise that which Mr P recognised: both have much to offer their children.
In that regard, I consider that I should attach significant weight to the fact that each of the parties contend for an order for equal shared parental responsibility. I assume, and expect, that each of them will have had advice from their respective legal practitioners about s 65DAC and the Act’s Objects and Principles more broadly. Thus, it is assumed and expected that, despite their erstwhile conflict, each will commit, as s 65DAC envisages, to a process of consultation and cooperative decision making about major long-term issues.
I consider orders for equal shared parental responsibility to be in the children’s best interests.
As a result of that finding, there is a precondition to the exercise of the Court’s power to make parenting orders (see MMR v GR (2010) 240 CLR 461 and s 65DAA).
Section 65DAA(1) provides that, in circumstances where an order for equal shared parental responsibility is made, the Court must consider whether an order that the children spend equal time with each parent is in the children’s best interests and whether such an order would be reasonably practicable. If both of those questions are answered in the affirmative, the Court is required to consider making an order for equal time.
For the following reasons, I consider an order for equal time is not in the children’s best interests.
Neither party seeks an order for equal time; rather, the parties are agreed that the husband shall spend five nights per fortnight with the children. (As will be discussed in more detail below, they are not agreed as to the manner in which that time shall be spent). That agreement is made in the context of: the parties each having worked remuneratively during the relationship and post-separation; the parties’ son, D, suffering from significant intellectual disabilities; and, the wife living with her partner and four of his five children each alternate weekend and during the holidays.
The parties – who know their children better than a court ever will, or should – are agreed that an equal time order is not in their best interests. Their agreement is both understandable and, in my view, appropriate. Their agreement not only ensures stability for the children, but also ensures that each parent is able to spend meaningful time with the children in the context of their respective employment obligations and takes account of their individual needs.
In light of that finding, the issue is whether an order that the children spend substantial and significant time with their father is in their best interests (s 65DAA(2)).
Again, the agreement between the parties as to a “9:5 arrangement” is, for the reasons just discussed both understandable and appropriate.
On either party’s case, the husband will spend time with the children during the school week, over the weekend and during the holidays. Orders made as proposed by either party will allow the husband to be involved in the children’s routines and special occasions and events. Unfortunately, the parties cannot resolve the issue of how that will occur.
For the reasons about to be given, I consider orders as proposed by the husband to be in the children’s best interests. Those orders will see the husband spend from Wednesday after school to before school Monday with the children.
The parties are also agreed that the children will spend half of the school holidays with each parent. Such orders plainly provide for “substantial and significant” time, as that phrase is defined in s 65DAA(3), between the children and their father and, for the reasons given above in respect of equal time and the findings and conclusions which follow, I consider such an order to be in the children’s best interests.
The Issues in Dispute - General
Despite their commendable level of agreement on some issues, the parties are, unfortunately, at odds about a miscellany of orders sought which might be regarded as the minutiae of week-to-week parenting. Life will throw up a range of issues in the future which the parties must be able to resolve themselves. The necessity for a court to make orders about daily minutiae is antithetical to what is best for the children post-separation. Nevertheless, that is the nature of the disputes which the parties ask this Court to decide.
Several examples exemplify the nature of the dispute between these parties:
· Which parent should have the children in the first half of the Christmas/New Year period each odd year (noting that the parties are agreed as to who gets the children on Christmas Eve/Day each year);
· Whether the children should spend the June/July holidays with their mother each year, or should it alternate between parents;
· Which private (all boys) school should the parties’ eldest child attend.
Another issue in respect of which the parties have been unable to reach agreement concerns extracurricular activities. Specifically, the husband seeks an order that the parties must agree in writing before enrolling any of the children in an extracurricular activity where the child’s “commitment/attendance” at that activity is required “during [the] period when the children are in the other party’s care.”
It is understandable that each of the parties in a post-separation parenting regime where the children divide their time between parents would have a legitimate interest in there not being unilateral and sometimes even pernicious decisions made by the other party that impinge upon their time by reason of the first party enrolling children in extracurricular activities within the time that the “other parent” spends with the children. Appallingly, that situation is by no means uncommon in this Court. Mercifully, that is not the situation here. But, understandably perhaps, given the erstwhile degree of conflict between the parents manifest in the evidence, the husband seeks orders that might guard against that possibility.
Whilst perhaps understandable, the difficulty in framing orders that provide for events that have not yet occurred – and may never occur – is, I think, self-evident. It is partly for that reason that it is said parenting orders are never final in the strict sense and equally why the “rule in Rice v Asplund” applies as a caveat.
The order sought in that respect should not be made.
In a similar vein, the parties were in dispute about whether E, who is now seven, should commence High School in five or six years. Blessedly, that issue has now resolved.
Time with the husband
The wife contends that the children should spend each Tuesday night and every alternate weekend (Friday afternoon- Monday morning) with their father, whilst the husband seeks an order that the children spend each alternate week from Wednesday afternoon through to Monday morning with him.
Currently, the children spend time with the husband in accordance with interim orders made by the Principal Registrar on 20 April 2011. Those orders provide for time with the husband each Tuesday evening and overnight on the Friday in the first week and from Friday night through to Monday morning the next week.
The husband seeks “block time” on the basis that it would “ensure that there is ongoing simplicity in respect of the practical arrangements for [the] children’s care”. Such an arrangement would, according to the husband, “minimise the need and frequency for possession to go backwards and forwards and minimise the organisational issues.” Further, “a longer block of time would allow the children to get settled and comfortable for a period of time without the ongoing intervention of change.”
The wife opposes time in the manner proposed by the husband because “there would be two school days each week where we would have to agree with respect to the children’s extracurricular activities. I am concerned that having to engage in discussions of this nature would lead to further conflict.” The wife also contends that “block time” as proposed by the husband will “only exacerbate the issue [of the children leaving items at their respective parent’s homes] …” According to the wife, “[w]ith block time, one week some of the activities would happen while the children are in my care, and the next week whilst the children are in the [husband’s] care.”
Mr P observed the children and their parents on two separate occasions, the most recent resulting in a report dated 30 March 2012. As part of that report, Mr P also interviewed the wife’s current partner and three of his children. Mr P was not cross-examined.
In his most recent report, Mr P opined:
100.… At this stage [being almost 12 months after he prepared his first report], I am left with stronger concern about the interpersonal relationship of the parents. Shared living in my view is likely to add to conflict, rather than diminish it. The parents appear to be polarising and the children are transferring between two quite mutually exclusive environments …
101.Despite these concerns, I am of the view that Orders need to be made for the children that allow them to be cared for by both of their parents in a structure of broad-ranging time. Both parents have much to offer the children. I remain of the view that the children ought to remain primarily in the care of their mother. Despite her re-structured home life, this in my view represents less change overall to the children. The Orders should reflect a greater level of simplicity and less room for interpretation as this may assist the parents to avoid unnecessary conflict. The Order should look to having the changeovers occur in a more seamless fashion, preferably through the school.
(Emphasis added).
In the context of those observations, Mr P recommends that the children live with the wife and spend the following time with the husband:
b.[The children] spend time with their father during the school term as follows:
i. On alternate weekends from Friday to Monday;
ii.For one night, being the same night, overnight each week and preferably Wednesday night.
iii.The changeovers wherever possible occur through the children’s school.
As can be seen, the wife’s proposals accord with the recommendations of Mr P. It should be noted that at the time of Mr P’s most recent report, the husband was proposing a week-about structure.
I agree with the opinions expressed by Mr P at [100] and [101] of his report quoted above. I disagree with him that the orders he proposes above best achieve those ends.
A schedule of time between the husband and children in accordance with the proposals of the husband would see the children changing from their parents on only two occasions per fortnight; a schedule in terms of that proposed by the wife and Mr P would result in four changeovers per fortnight. The husband’s proposal would also result in the husband spending a slightly greater number of “school nights” with the children and with that, having the opportunity to assist the children with their school work and get them to and from school and their respective extra-curricular activities.
I consider the issue raised by the wife that the proposal of the husband will result in “one week some of the [extra-curricular] activities would happen while the children are in my care, and the next week whilst the children are in the [husband’s] care” in fact favours the making of orders as proposed by the husband. I consider orders which enable each parent to play a role in the children’s school routine and extracurricular activities will ensure that the relationships between the children and their parents remain “meaningful” as they grow (noting that the parties’ youngest child still has 10 years of schooling before her) (s 60CC(2)(a)).
Block time as proposed by the husband will also afford the children’s paternal grandparents the opportunity to be involved in various aspects of their grandchildren’s lives (s 60CC(3)(b)(ii)).
The schedule proposed by the husband is, in my view, more conducive to stability for all of the children and, in particular, D as it reduces the number of changeovers and provides a longer period within which D can settle into and enjoy time in his father’s home (s 60CC(3)(d)).
In that latter respect, the wife deposes in her affidavit filed 30 April 2012 that “[D] … does not respond well to changes in his routine care arrangements or carers. He is typically more volatile and engages more frequently in self-soothing behaviours such as pinching, face-slapping and headbanging, on Mondays after the weekend at [the husband’s].” I consider that a reduction in the number of “changes in his routine care arrangements” is more consistent with the husband’s orders.
Orders should provide that, during the school term, the children spend each alternate week from after school Wednesday to before school Monday with the husband.
Holiday periods and Orthodox Easter
Both parties are agreed that the children should spend half of the school holidays with each parent. The parties do not, however, agree on how that time should be divided.
The wife seeks an order that the children spend each June/July period with her and, to make up for that block holiday time, the children spend the whole of each September/October period with the husband. According to the wife, such an order would enable her to take the children to the United States during summer which will enable the children to participate in a number of “summer festivals” and to go “boating and fishing.” This, according to the wife, will enable her to “maintain [the] children’s American heritage and connection with [the maternal] family.” The wife states that “[i]t is difficult to travel in the American winter months, and my nieces and nephews are not in school during the day in the American summer … If all cousins were in school … we would be wasting days waiting for them to be free …”
The husband proposes an order that would see the wife spend each alternate June/July period with the children thereby avoiding one parent holding a “monopoly” over the “Northern Hemisphere summer”; the husband contends that he too would like to take the children to Europe during that time of year. The paternal grandmother was born in Australia but owns a property with her husband in Europe. The paternal grandmother deposes to visiting Europe “on an annual basis … since 1997.” The husband’s mother deposes, however, to “[a]ll of my extended family and [paternal grandfather’s] extended family resid[ing] in Queensland.”
Mr P opined that:
103.In my view the children should have the scope to have their June/July holidays with their mother so that she can take them to the USA. The purpose of their travel overseas is to interact with their maternal family. Having the summer holiday there appears to offer them more scope to see and spend time with their family.
The husband’s parents live in Brisbane and have had an active involvement in the children’s lives (s 60CC(3)(b)(ii)). The wife’s family reside in the United States and the children have had limited face-to-face contact with them.
I accept the wife’s evidence that the children are likely to spend more time with more members of the maternal family during the June/July period (s 60CC(3)(b)(ii)).
For these reasons, I consider the wife’s proposal that the children spend each June/July holiday period with her so as to facilitate travel to the United States to be in the children’s best interests. As a consequence, orders should provide that the children spend the whole of the September/October holiday period with their father.
The parties are agreed that Christmas Day should be shared. A dispute arises because the husband contends that he should have the children in the first half of the holidays each odd year as the wife had them in the first half in 2012. Pursuant to consent orders, the wife’s partner has four of his five children for the first three weeks of the Christmas/New Year school holidays each odd year. The wife’s reason for seeking the first half of those holidays in odd years is, then, to enable the wife’s children and her partner’s children to interact during the school holidays.
Mr P observed that the children the subject of these proceedings “interacted well” with the wife’s partner’s children and the children have continued to interact regularly since the time of Mr P’s interviews. I consider the relationships between the children to be a significant factor (s 60CC(3)(b)(ii)).
Whilst an order that the wife have the children in the first half of the Christmas/New Year school holidays in odd years will mean that she has had them in this period for two consecutive years, I do not consider this to negate the benefit to the children of spending holiday time with the children of the wife’s partner. As noted, that order will have no affect on the time between the husband and the children on Christmas Day.
Orders should, then, provide that the children spend the first half of the Christmas/New Year school holidays with the wife in each odd year.
The husband seeks an order that the children “spend time with the [husband] for Orthodox Easter from after school Friday to Sunday at 2:00pm”. The wife seeks an order that, on those occasions when Orthodox Easter does not coincide with “Western Easter” (meaning, presumably, the Gazetted Easter Sunday), the children spend “Orthodox Easter day” with the husband and “Western Easter day” with the wife “provided that the children spend that first half of the Easter school holiday period with the [wife] to include the Western Easter weekend.” In those years where the two days do coincide, the wife seeks an order that the children spend half of the day with each parent.
During cross-examination of the wife, it became apparent that the wife was not averse to the children spending the Orthodox Easter weekend with the husband so long as that weekend fell within the time which the husband would otherwise be spending with the children. I note that Orthodox Easter does not always coincide with “Western Easter”. For the reasons given earlier in respect of the wife’s travel to the United States, I similarly consider it to be in the children’s best interests that they be given the opportunity to experience their heritage and to celebrate Orthodox Easter with their father and the extended paternal family (ss 60CC(3)(b)(ii) and 60CC(3)(g)).
Orders should, then, provide that when the children are otherwise not spending time with the husband, the children spend from after school Friday to 2:00pm Sunday during Orthodox Easter. To cover the situation where Orthodox Easter falls within the Easter school holidays, orders should provide that the children spend half of the Easter school holidays with their father, with that time to include Orthodox Easter.
I am cognizant that such an order has the effect that when Orthodox Easter overlaps with “Western Easter” in the school holidays, the children will not be spending time with their mother on Western Easter Sunday, I consider the benefit to the children experiencing the cultural and religious background of their paternal family (s 60CC(3)(g)) outweighs the consideration that would point to them sharing Western Easter Sunday with their mother.
I emphasise, of course, that however forlorn might be the hope, such an order does not preclude the parents from agreeing to share the Easter weekend in a manner which enables the children to enjoy time with both of their parents.
Which school should C attend?[15]
[15]To assist with anonymisation, the names of the school (Q School) which the father proposes, and R School which the mother proposes, have not otherwise been referred to in this section.
The husband is a past student of the school which he wants C to attend. He contends that during the marriage it was agreed that C would attend that school. The wife concedes that “when [C] was born, I agreed to put him on the waiting list at [the school].”
The wife says that it would be logistically more cumbersome to transport C to that school “from the western suburbs area” as opposed to the alternative all-boys schools she contends for. The wife deposes to C having to “either catch a train plus a bus, or two buses, in order to get to [the school proposed by the husband]”. The wife says that due to the time D’s bus arrives for school “I cannot leave the house early enough to deliver [C] to school myself, nor is it on the way to the city where I work. In any event … I cannot collect [C] in the afternoon. I am not happy to put [C] on public transportation involving a transfer …” One of the wife’s partner’s sons currently attends one of the alternative schools for which she contends and, at the time the wife filed her affidavit on 30 April 2012, there was an intention that the partner’s other son would also attend that school.
Mr P was of the opinion that:
[C] should [not] be obliged to attend [the husband’s proposed school], regardless of the living arrangement of the [wife]. For him to do so belies the current changes to his family life. It holds him to a decision that was made in the context of a non-separated family unit. It would appear that the [wife] will be moving house at some stage and this will bring with it practical considerations when it comes to the educational requirements of the children … The children should be enrolled in schools that might be more accessible for both parents in the longer term …
Mr P was not cross-examined. That opinion was recorded over 12 months ago. Aside from the parties’ bald assertions, there is no evidence before me of the views of C regarding which institution he should attend for his secondary schooling (if, indeed, a child of his age might have a “view” about such a matter in terms of what might be “best” for him).
The husband wants C to attend the school of which he is a past student. This is a matter, apparently, that seems to weigh heavily in the minds of many people and plainly does so for the husband. But, this decision, like all decisions affecting children is to be made in C’s best interests, not the husband’s best interests. It is not clear to me how the fact that the husband attended the school is a pointer to the former. There is also, apparently, the potential that his sister will send her children to the school, but that is speculation rather than evidence.
In my view, the decision as to which school C should attend depends upon which school will provide the most stability for C in the context of his familial situation and which school will best minimise the potential for conflict between the parties. That is not a function of the school but of practical arrangements and parental reaction. Stability and potential for lack of conflict are, in my view, the best pointers to a Court deciding such an issue. C, who is described by both the wife and Mr P as being especially sensitive to his parents’ conflict, ought be able to enjoy his schooling without concern as to whether it will inflame that conflict.
In my view, an order that C attend the school the wife proposes will provide the most stability for him and will best minimise the potential for conflict between his parents.
Again, of course, the order I make does not prevent these parents from subsequently reaching agreement between themselves.
Arrangements for D
The husband seeks an order that, in the event that “the [wife] seeks to implement alternate living arrangements for [D]” he shall have “the first right of refusal to care for [D].”
It seems that the order sought by the husband regarding D’s care arose as a result of a misunderstanding between the parties. The wife, it seems, had alluded to the possibility of placing D in a form of residential care facility in the future. During oral evidence, the wife confirmed that she had no immediate plans to alter D’s living arrangements but had raised the issue in the context of considering the care of D in the future. I accept her evidence.
As I made plain to the parties and their legal representatives, I do not consider it appropriate to make orders regarding the future care of D that is not based on evidence of a current (or certain future) need to do so. As a result of D’s significant disabilities there are likely to be many challenges ahead for both parents and for D. On the evidence before me none can be predicated with any specificity. Both parents love D. Surely, one might hope, sanity will prevail and agreement will result as and when those needs arise. In any event, it is not appropriate to make any such order now.
Overseas Travel
The husband seeks an order restraining the wife from travelling outside of Australia with the children. To effect that restraint, the husband seeks a further order that the children’s names be placed on the Airport Watch List.
The wife was born in America and each of the parties’ children has dual Australian and American citizenship. It is uncontroversial that during the parties’ relationship, the wife and the children travelled to the United States annually. Post-separation, the wife has travelled to the United States with the children in 2010 (on that occasion the husband accompanied the wife and children) and 2011.
On 29 October 2012, the wife sent the husband an email in which she stated:
Perhaps you haven’t thought far enough ahead to ask yourself what I will do in the event that you do manage to effectuate armageddon and leave me penniless. Let me take the opportunity to point out to you that the children and I could live mortgage-free in America, with exceptional free public education and benefits for [D]. That is not a road that I particularly want to travel down, but I will if it becomes necessary for me to ensure that the children continue to have a future, despite your actions, I will be forced to.
The husband contends that that email evidences a risk that the wife with unilaterally remove the children from the Commonwealth of Australia. Whilst the above email may be a demonstration of immaturity, I do not consider it to be evidence of an intention on the part of the wife as asserted by the husband or of the “risk” he contends for.
The wife has had, and continues to retain, custody of the children’s passports in the post-separation period. No attempt has been made to do what she asserts in the above email. The wife’s employment and her current relationship point against the wife unilaterally relocating to the United States. The husband is supportive of the children travelling to the United States with their mother. Orders will be made in respect of the June/July holidays.
The order contended for by the husband should not be made. However, given the erstwhile level of conflict, orders should be made, applicable to both parties, requiring disclosure of information to the other parent in circumstances where international travel with the children is intended.
Parenting orders: Conclusions
Taking all of the relevant Part VII Considerations into account, I am satisfied that it is in the children’s best interests to remain living with their mother and to spend time with their father during the school term from after school Wednesday to before school Monday. I am also of the view that it is in the children’s best interests that their parents share parental responsibility for them.
I also consider the following orders to be in the children’s best interests:
· Both parties shall, subject to providing not less than one month’s notice of dates of travel and evidence of a return ticket and contact address, be at liberty to travel overseas with the children;
· The children shall spend each June/July holiday period with their mother;
· The children shall spend each September/October holiday period with their father;
· The children shall spend half of the Easter and Christmas/New Year school holidays with each parent with the wife having the first half of the Christmas/New Year school holidays in each odd year;
· In terms of Orthodox Easter:
§ If it falls outside of the Easter school holidays and the children are otherwise not spending time with the husband, they shall spend Orthodox Easter weekend with the husband from after school Friday to 2:00pm Sunday. If Orthodox Easter;
§ If it falls within the Easter school holidays, the time between the children and the husband during that holiday period shall be arranged so that it includes the Orthodox Easter weekend;
· The parties shall do all such things, sign all such documents and pay all such fees as is necessary to enrol C in R School for Grades 8-12.
The parties will be providing agreed Minutes of Order in respect of the property component of these reasons. They shall do similarly in respect of parenting orders by including them in the agreed Minutes of Order to be forwarded within 28 days, such Minutes giving effect to the findings made and Orders referred to in these reasons.
I certify that the preceding one hundred and ninety nine (199) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 19 April 2013.
Associate:
Date: 19 April 2013
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