MORTON & BARNETT

[2007] FMCAfam 329

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MORTON & BARNETT [2007] FMCAfam 329

FAMILY LAW – Children – property.

Applicant: MS MORTON

Respondent: MR BARNETT

File number: CAM 775 of 2005

Judgment of: Brewster FM

Hearing dates: 19 & 20 October 2006

Delivered at: Canberra

Delivered on: 24 May 2007

REPRESENTATION

Counsel for the Applicant: Mr Miller

Solicitors for the Applicant: Farrar Gesini & Dunn

Counsel for the Respondent: Ms Godtschalk

Solicitors for the Respondent: McGuinness Eley

ORDERS

1. That in these Orders the term “contact” means spending time with or communicating with according to the context.

2. That all previous orders be discharged.

3. That the children [X], born [in] 1996 and [Y], born [in] 1998 live with the mother.

4. That the parties have equal shared parental responsibility in relation to the children.

5. That the children have contact with the father as follows:

   (a)During school terms each alternate weekend from after school on Friday (or Thursday if Friday falls on Anzac Day) until the commencement of school on Monday (or Tuesday if Monday is public holiday) and on the Monday following a non-contact weekend from after school on Monday until the commencement of school on Tuesday.

   (b)For one half of all school holidays being the first half of holidays falling in or commencing in even numbered years and the second half of holidays falling in or commencing in odd numbered years.

   (c)If the children's birthdays or the father’s birthday falls on a non contact school day, from the conclusion of school until 6pm.  If the birthday falls on a non contact weekend he is to have contact from 4pm to 7pm on that day.

   (d)By telephone each Thursday between 6pm and 6.30 pm with the father to make the call.

6. That if Fathers Day falls on a non-contact weekend contact will not occur on the previous weekend but will occur in lieu on the weekend of Father's Day.

7. That if Mothers Day falls on a contact weekend contact will not occur on that weekend but will occur in lieu on the following weekend.

8. That one half of a holiday period will be computed by dividing the total number of days the children do not attend school by two.  If there are an uneven number of days the father is to have the additional day in holidays in or commencing in even-numbered years and not in those in or commencing in odd-numbered years.

9. That holiday contact will commence at 9am and conclude at 5pm.  When it is the first part of a holiday it will commence the day after school breaks up.  When it is in the second half of the holidays it will end on the day before the children return to school except for the Christmas school holidays when it is to end two clear days before the children return to school.  This is not intended to reduce the time the father spends with the children.

10. That weekend and Monday contact is suspended during school holidays.  It will recommence on the first weekend after school resumes when contact is in the first part of the holidays and the Monday after the first weekend when contact is in the second part of the holidays.

11. That the parties forthwith do all things necessary to cause the property known as Property F, ACT (“the property”) to be sold and the net proceeds of that sale to be divided between them as follows:

    (a)To the husband an amount calculated in accordance with the following formula.

    A = (B + $77,653) x 57.5/100 - $24,500

    Where A is the amount the husband is to receive and B is the net proceeds of the sale of the property.

    (b)The balance to the wife.

12. That the parties take all steps necessary to sell the share they have in the [S].  The husband is to have the carriage of this sale and to pay for all necessary advertising.  If the proceeds of the sale exceed $4,250 then prior to the division of the proceeds of sale the husband is to be reimbursed one half of the amount he spent on advertising or the amount by which the sale price exceeds $4,250 whichever is the less.  The parties are to divide the proceeds of the sale between them in the proportions 57.5% to the husband and 42.5% to the wife.

13. That the wife shall be entitled to retain the interest in the [S] by matching any offer that may be made to purchase it.

14. That as between them each party be entitled to retain the chattels presently in his or her possession and choses-in-action presently in his or her name.

IT IS NOTED that publication of this judgment under the pseudonym Morton & Barnett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 775 of 2005

MS MORTON

Applicant

And

MR BARNETT

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a dispute in relation to parenting issues and property division. 

2. In this judgment I will use the term "contact" instead of the term "spend time with and communicate with" now used in the Family Law Act.

Background

1. The husband and wife are both aged 46.  They were married [in[ 1990 and separated on 13 May 2005. There are two children of the marriage. The elder, [X] who is called [X], was born [in] 1996 and is therefore aged 10.  The younger, [Y] who is called [Y], was born [in] 1998 and is therefore almost 9.

2. The parties separated when the wife obtained an order against the husband under the Domestic Violence Act.  This resulted in the husband leaving the former matrimonial home.  The children remained with the wife after separation and did not have contact with the husband until 8 June when arrangements were put in place for twice weekly contact, which did not involve any overnight visits.  Prior to this the wife had filed an application in this Court on 18 May 2005.  This application sought an order for the children to live with her and have contact with the husband two hours a week.  The husband in his response sought an order the children live predominantly with him but spend five nights a fortnight with the wife.

3. The matter came before me on 4 July 2005, and I ordered the husband have contact with the children on two occasions and adjourned the matter to 11 July.  I requested that Ms D, who had been involved in the matter and had seen the parties and the children, prepare a report. 

4. The matter came before Federal Magistrate Bauman on 11 July when orders were made that until further order the children live with the wife and have contact on five specified weekends and from the conclusion of school until 7 pm each alternate Wednesday.  The matter came before the Court again on 26 September 2005 for an order to be made continuing this pattern.  It came again before the Court on 3 May 2006 when I extended the weekend contact to the commencement of school on Monday and changed the Wednesday contact to Mondays.  The matter came again before the Court on 19 June 2006 when consent orders were made in relation to holiday contact. 

The Parties’ Applications

1. Up to the commencement of the hearing the husband's position was that there should be a week about arrangement.  In a Minute of Orders Sought, which was filed at the beginning of the hearing, he sought an arrangement for equal shared care but on a more complex basis than week about.  I will not detail its precise provisions but it involved periods of two days with one party, three days with the other, three days with the other, and two days with the other.  He sought that this pattern continue for two years, after which a week about arrangement should take effect.  This position again changed during the hearing when he sought an arrangement for a nine nights/five nights fortnightly pattern.  This again was to be temporary leading to a week about arrangement. 

2. The wife seeks an order that the children live with her and have contact with the husband each alternate week from after school on Friday until 5 pm Monday or Tuesday if Monday is a public holiday.  She also proposed there should be contact each alternate Monday following a non-contact week from after school until 7 pm.  She proposed that there be school holiday contact and I need not set out the precise terms of this proposal.

3. In relation to property the husband seeks that the former matrimonial home be sold and that he receive sixty five per cent of the net proceeds plus $4,000 which related to monies used during the marriage to acquire a share in [Property S].  This latter aspect was not pursued at the hearing. He further sought a splitting order in relation to the wife's superannuation which would give him half of her entitlements.  He sought orders in relation to chattels which I need not detail. 

4. The wife agrees that the former matrimonial home should be sold and seeks an order that she receive sixty per cent of the net proceeds of that sale.  She concedes that there should be superannuation split.  She does not seek a split of the husband’s superannuation but seeks a split of her superannuation such as to equalise the parties’ entitlements. 

Children’s Matters

1. Section 60CA of the Family Law Act requires that in making a decision in this matter I am to regard the best interests of the children as the paramount consideration. Section 60CC sets out a number of matters to which I am to have regard when assessing what is in the best interests of the children. I will discuss this section in due course. The backdrop to this exercise is section 60B of the Act which states as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other persons significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. I turn to section 60CC.  This section sets out a number of matters to be considered when assessing what is in the best interests of the children.  These are divided into primary considerations set out in sub-section (2) and additional considerations set out in sub-section (3).  Sub-section (4) sets out further matters to which I am to have regard.

3. To paraphrase sub-section (2) it recites that the primary considerations are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect children from abuse, neglect or family violence.

4. Insofar as the first of these is concerned, irrespective of whether I make orders as sought by the husband or by the wife or orders reflecting a position between their two applications the children will see a good deal of the husband and will continue to have a meaningful relationship with him. 

5. In relation to the second of these matters the wife alleges violence on the part of the husband during the relationship.  In the main she alleges verbal violence but claims that it was sometimes physical and was directed towards both her and the children.  The husband denies these allegations.  I am not satisfied that there was actual physical violence but I am satisfied that the husband on occasion lost his temper and shouted at both the wife and the children.  As I have indicated the Court has had the benefit of a report from Ms D, a Regulation 8 Expert, which was prepared shortly after the parties separated.  When Ms D spoke to the children they told her that their father had shouted at them during the time that their parents lived together.  When interviewed again by Ms D on 21 September 2005 the children reported that this shouting had not occurred since the separation.  They were again interviewed by Ms D on 1 September 2006.  Ms D reported that “[X] indicated Dad had shouted sometimes but much less than when they all lived in the same house.”

6. In the end I conclude that the children are not at risk of abuse from the husband.  Whilst I conclude that he is liable to lapse into shouting if under stress this type of behaviour is not encompassed within the definition of abuse or family violence and in any event I do not believe that this is a sufficiently significant matter to influence the decision I am called on to make in this matter.

7. I now turn to sub-section (3).

8. Paragraph (a) of this sub-section requires me to consider any views expressed by the children and any factors (such as their maturity or level of understanding) that I think relevant to the weight that should be given to any such views.

9. When Ms D last spoke to the children the husband’s proposal was for a week about arrangement.  Ms D reports that neither of the children expressed a wish to move to such an arrangement.  She reports that [Y] was quite explicit in this respect and said that she “definitely” did not want a week about arrangement.  Ms D reports that [X] “was not keen to endorse (a week about) arrangement.”

10. Paragraph (b) requires me to consider the relationship of the children with each of their parents and with any other persons including grandparents or other relatives.  There is nothing about the relationship between the children and either of the parties or between the children and any other person that would impact on the decision that I am required to make in this case.

11. Paragraph (c) requires me to consider the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent.  I am satisfied that both parties are willing to facilitate and encourage such a relationship.

12. Paragraph (d) requires me to consider the effect of any changes in the children’s circumstances including the likely effect on the children of any separation from either of their parents or any other person with whom they have living.  The husband’s proposal would involve the children being separated from the wife to a greater extent than is now the case.  When speaking to Ms D [Y] spoke of missing her mother when she was with the father.

13. Paragraph (e) refers to the practical difficulty and expense of the children spending time with and communicating with a parent.  As both parents live in Canberra this is not an issue.

14. Paragraph (f) refers to the capacity of each of the children’s parents and of any other person to provide for the needs of the children, including emotional and intellectual needs.  I have discussed the husband’s propensity to lose his temper at times and I will not re-visit that issue.  There is nothing else in relation to either party’s capacity to provide for the needs of the children that would impact on the decision I am required to make in this case.

15. Paragraph (g) refers to the maturity, sex, lifestyle and background (including lifestyle, cultural traditions, culture and traditions) of the children or of either of their parents, and of any other characteristics of the children that I think relevant.  It is not applicable.

16. Paragraph (h) refers to Aboriginal or Torres Strait Islander children.  It is not relevant.

17. Paragraph (i) refers to the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents.  Neither of the parties has deficits in relation to these criteria sufficient to impact on my decision in this case.

18. Paragraph (j) refers to any family violence involving the children or a member of their family.  Insofar as violence to the children is concerned I have nothing to add to what I have already said when addressing sub-section (2).   The wife alleges that the husband punched her and otherwise assaulted her in early 2005.  Given that I propose to make orders more or less along the lines of those which she seeks I need not make a finding as to this.  A finding consonant with her evidence would not alter my decision.

19. Paragraph (k) refers to any family violence order applying to the children or member of the children’s family.  As I have indicated the wife applied for and obtained an order under the Domestic Violence Act.  This was ultimately resolved by undertakings being given by the husband.  It is not relevant to the decision I am called upon to make in this case.

20. Paragraph (l) requires me to consider whether it will be preferable to make the order that will be least likely to lead to the institution of further proceedings in relation to the children.

21. I would be concerned that an arrangement such as that proposed by the husband in this case – with all the changeovers that it involves – might turn out to be an unsatisfactory arrangement and might provoke further litigation.  However I do not need to rely on this paragraph in reaching my decision in this matter.

22. Paragraph (m) refers to any other fact or circumstance that I think relevant.  Such facts or circumstances will emerge in the balance of this judgment.

23. Sub-section (4) requires me to consider the extent to which either of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent having regard to certain criteria.  Neither party has raised this sub-section as an issue in this case.  I am required to consider it however and have done so.  I do not find that either parent has failed to fulfil his or her responsibilities as a parent insofar as the criteria set out in the sub-section are concerned.

24. I now turn to the issue of parental responsibility.

25. Section 61DA of the Act requires that, when making a parenting order in relation to the children, I must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them.  The section sets out circumstances under which the presumption does not apply and matters which can rebut that presumption.  The presumption does not apply if there are reasonable grounds to believe that a parent of the children has engaged in abuse of those children.  I have found that the husband has at times verbally abused the children but, as I have indicated, this does not fall within the definition of abuse set out in sub-section (4) and thus the presumption applies in this case.  Sub-section (4) provides that the presumption may be rebutted by evidence that satisfies me that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.  The evidence in this case does not so satisfy me.  Accordingly I propose to make an order that the parties have equal shared parental responsibility for the children.

26. Making such an order brings into play section 65DAA of the Act.  This provides that if a parenting order provides for a child's parents to have equal shared parental responsibility for a child the court must consider:

    a)whether the child spending equal time with each of the parents would be in the best interests of the child; and

    b)whether the child spending equal time with each of the parents is reasonably practicable; (this term is defined in a later sub-section but I do not need to dilate on this) and

    c)if it is, consider making an order to provide for the child to spend equal time with each of the parents. 

1. I do not consider the children spending equal time with each of the parties is in their best interests or reasonably practicable.  There are two reasons for this.  First the relationship between the parties and their ability to communicate is such that it will be difficult for such an arrangement to work in practise.  In this respect it is not reasonably practical.  Secondly neither of the children favoured a week about arrangement and I infer that they would not favour the more complicated arrangement now proposed with its frequent changeovers.  Ms D reported that “[X] did not enjoy moving her belongings between houses.”

2. Sub-section (2) provides that if a parenting order provides for a child's parents to have equal shared parental responsibility for a child and the Court does not make an order for the child to spend equal time with each of the parents then the Court must consider:

   a)whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   b)whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   c)if it is, consider making an order to provide for the child to spend substantial and significant time with each of the parents. 

3. Substantial and significant time is defined in subsection (3) as meaning time in holidays and on weekends plus time other than during holidays and weekends.

4. The wife’s proposals include contact on days that do not fall on weekends and holidays and thus an order in the terms she proposes would give the husband substantial and significant time with the children.  In all the circumstances I regard her proposals, with two comparatively minor changes, as appropriate. I take into account particularly the views of the children in reaching this conclusion.  There is nothing in this case to indicate that those views should not be respected.  The first change I propose to make is to extend the Monday contact overnight.  I feel that this is more consonant with the intent of the legislature when it refers to substantial time.  The second is that I propose to order that each party have the children for one half of the summer school holidays in one block.  The wife proposed two week blocks.  I believe my orders are workable and give more flexibility for a party to take an extended holiday with the children.  I propose to order accordingly.

Property Matters

1. The Full Court of the Family Court has indicated that a four stage process should be applied in dividing property following a marriage breakdown.  The first stage involves making findings as to the pool of assets.  The second stage involves a consideration of contributions of various types made during the relationship or made after separation.  If appropriate an adjustment may be made in the parties' interests in their property on this basis.  The third stage, for the purpose of this case, involves a consideration of the matters set out in section 75(2) of the Act that are relevant.  Again, if appropriate, an alteration in the parties' interests in property may be made on this basis.  The fourth stage involves something of a "wood from the trees" exercise to ensure that overall the result derived from the second and third stages is just and equitable. 

The Property Pool

1. The parties are joint proprietors of the former matrimonial home at Property F.  They agree this property is worth $650,000 and is subject to a mortgage of approximately $92,000.  They agree the sale costs will be about $20,000, which leaves anticipated net proceeds of about $538,000.

2. I find that the values of the parties’ chattels and choses in action are as follows

   (a)The husband has a Mazda 121 valued at $2,250.

   (b)The wife has a Mazda 626 valued at $2,450.

   (c)The husband has a trailer valued at $300.

   (d)The husband has IAG shares valued at $4,752.

   (e)The husband has shares in [omitted] valued at $480.

   (f)The wife has IAG shares valued at $1,937.

   (g)The wife has AXA shares valued at $4,814.

   (h)The parties have a share in [Property S] which the wife values at $4,250.  I will adopt this value for the purposes of the exercise I am about to embark on.  I will return to this issue later in this judgment.

3. There is a dispute as to the values of contents and jewellery.  There are no valuations of these.  I propose to ignore them.

4. The value of the non superannuation pool is therefore $559,233.

5. Each of the parties has accumulation fund superannuation.  The husband’s is valued at $16,719 and the wife’s at $43,951, a total of $60,670.

6. In this case, notwithstanding the fact that both parties sought a superannuation split, I propose to take a global approach and lump superannuation in with the other assets.  In many cases I would not take this approach.  However in this case there are three reasons for my adopting the course I propose.  First both parties have superannuation and, when considered in the light of the size of the total pool, the difference in their entitlements is not great.  Secondly the amount of superannuation is not large.  It is a little less than ten per cent of the total pool.  If it had comprised a substantial part of the pool the fact that the wife apparently wishes to maximise her share of accessible assets by giving the husband a part of her superannuation would have been a very significant matter.  However as it is her share of the accessible assets will not be greatly reduced by my declining to make a split.  Thirdly the parties’ superannuation is in the form of accumulated superannuation.  If it had been defined benefits superannuation I may have taken a different approach as there is a degree of artificiality in comparing the actuarial based value attributed to defined benefits superannuation with other property.  With an accumulation fund however such a comparison is not artificial.

7. The pool therefore totals $619,903.

Contributions

1. When the parties married the husband owned a house in [F].  This was sold in December 1994 for $146,000.  From this an amount of $7,723 was paid to discharge the mortgage on that property.  The costs of the sale are not in evidence.  As will be seen from paragraph 51 a part of that amount represents a contribution by the wife.  In June 2004 the parties purchased the [Property F] block and the proceeds of the sale were applied to the construction of a house on that block.

2. At the date of the marriage the husband was employed by [omitted], having commenced that employment in November 1984.  He had superannuation entitlements and long service leave as at that date.  In December 1996 he took a redundancy package and was paid a net amount of $54,148 in relation to long service leave and other entitlements and $81,047 by way of superannuation.  He was also paid a further amount of $6,520 by way of superannuation which was rolled over and is represented in his present superannuation.  Of these monies an amount of $87,285 was applied to reducing the loans on the [Property F] property.

3. At the date of the marriage the wife owned a home in [C].  This was sold in November 1992 for $118,000.  In her affidavit she said that the net proceeds of this sale were $51,158 but this appears to be an understatement as it did not take into account the deposit of $11,800.  There is no evidence as to the amount of the agent’s commission which would have been deducted from this deposit so the precise amount she received is not known.  The wife says that $12,000 of the proceeds of the sale of this home was applied to reduce the mortgage on the husband’s [F] property.  The husband denies this but in the end I accept the wife’s version of events.  There is a dispute as to what happened to the remaining proceeds of the sale.  The wife says that $18,000 was applied to fund an overseas holiday for the family. She does not account for the balance.  The husband says the proceeds were applied to the purchase of an investment property in [F] which was later sold at a loss.  I need not make a finding as to this as it was not raised as a relevant issue by either party. 

4. At the date of the marriage the wife had accumulated superannuation with the [1] and with [2].  This was subsequently rolled over into the [3] Scheme.  This is the superannuation referred to in paragraph 46. 

5. Each party owned chattels at the date of the marriage but these are no longer of any consequence.

6. As I have indicated, at the date of the marriage the husband was working with [omitted] and took a redundancy package in late 1996.  He in fact ceased work in January 1997.  He was then not in paid employment for the rest of the period that the parties lived together except for a brief period after [Y]’s birth when he worked as a gardener.

7. When the parties first met the wife was employed with a [omitted] company.  In 1990 she started her own [omitted] business.  She gave up work about the time [X] was born but recommenced work part-time about six weeks after the birth.  She commenced working full-time about 12 months after the birth.  She ceased work again about the time of the birth of [Y] and returned to work about a year after her birth.  She continued employment thereafter.

8. Until the husband ceased work in the beginning of 1997 the wife’s salary was greater than his.  Her gross income was in the order of $55,000-$60,000 per annum.  For most of the time the husband’s income was in the order of $25,000-$30,000 per annum although in his last year with [omitted] he earned $51,346.  I take this into account in favour of the wife.  Of course the effluxion of time has had an impact on the significance of this.

9. I do not make any adjustment with respect to contributions from 1997 onwards.  In the main the wife’s contributions in that period were in the role of bread-winner and those of the husband as a homemaker and parent.  Of course the wife contributed as a homemaker and parent when she was not at work.  She maintains that the husband did not pull his weight as a homemaker and parent after he resigned from [omitted].  She says that he gave up paid employment to try his hand at making a living as a [omitted].  She says that he was mainly occupied with this although it did not return a profit.  However I am not persuaded that he failed to fulfil his primary task as a homemaker and parent.  His [omitted] endeavours doubtless took up some time but I am not satisfied that the time involved impacted on his role as a homemaker and parent sufficiently for me to be required to take it into account.  The process in which I am engaged is not a precise accounting exercise.  See the judgment of the Full Court of the Family Court in Harris (1991) FLC 92-254 at page 78,705. Rather, to quote McLelland J in Davey v Lee (1990) DFC 95-084, (which was cited with approval in Harris), I am required to make “a holistic value judgment in the exercise of a discretionary power of a very general kind.”  It is often the case that a wife who is not in paid employment will spend time on pursuits like charity work, sporting pursuits or hobbies but this is not reflected in a reduced share of property on marriage breakdown.  I see no reason to treat the husband in a different manner.  Prior to 1997 it is possible to compare the parties’ contributions because they were both doing the same thing, that is they were both working full-time and contributing as homemakers.  We are thus comparing apples with apples.  From 1997 however the parties’ roles were different and it is not possible to compare their contributions in any quantitative way.  From then on we are comparing apples and pears.

10. Post separation the wife has had the primary care of the children.  The husband paid no child support until September 2006.  In September and October he paid child support of $230 and his current assessment is $6 a week.

11. Between 14 January 2005 and 19 May 2005 the wife drew down $15,860 on the mortgage on the matrimonial home.  The husband says, and I accept his evidence, that he was unaware of these withdrawals at the time.  Although all but one draw down pre-dates the parties’ separation I propose to treat them as an offset to the wife’s post separation contributions as a parent.  I infer that the marriage was in its death throes by the beginning of 2005.

12. I summarise the parties’ contributions as follows:

    a)The husband’s initial contributions exceed those of the wife. I summarise these as follows:

    i)He brought a house into the marriage which when sold netted the parties an amount before selling costs of about $138,000.  I do not overlook the fact that $12,000 of this relates to contributions by the wife.  The wife’s property netted the parties about $51,000 plus the balance of the deposit of $11,800.  I do not know the precise net amounts each party received but I do not need to know them.  As I have indicated the exercise I am engaged in is not an accounting exercise.  Suffice it to say that the amount received from the sale of the husband’s property greatly exceeded the amount received from the sale of the wife’s property.

    ii)The husband had entitlements with [omitted] at the date of the marriage.  A part of the monies he received on his resignation is referable to the period before the marriage as is a part of his present superannuation.  Of course I do not overlook the fact that the wife also had superannuation with [1] and [2] which is now reflected in the [3] Scheme which is in the pool.

    b)Between the date of marriage and the birth of [X] the wife’s financial contributions through her income were greater than those of the husband.

    c)Post separation the wife has contributed as a parent.  This is included taking on the overwhelming bulk of the financial costs of raising the children.  However she has had the benefit of the $15,860 drawn down from the mortgage.  In the result I do not propose to make an adjustment with respect to post separation contributions.

13. Overall I find that contributions favour the husband.  Whilst I do not consider it entirely logical the trend has always been to ascribe a greater value to lump sums than to periodic earnings.  See for example Wrona (2004) FLC 93-207 where Finn J, sitting on appeal from a judgment of mine, considered that I had given too little weight to a lump sum contributed by the husband. Perhaps it is because the impact of lump sums can be more readily seen in the size of the pool whereas the impact of periodic earnings is more ephemeral. Perhaps it is because, irrespective of the lack of legislative imprimatur, financial contributions made to the acquisition of property under paragraph (a) of sub-section 79(4) are regarded as more significant than, for example, financial contributions to the welfare of the family under paragraph (c). See for example Pierce (1999) FLC 92-844. In any event I would be kicking against the pricks if I were to look at the lump sums imbalance in favour of the husband in the same light as the periodic earnings imbalance in favour of the wife.

14. I consider a seven and a half per cent adjustment in favour of the husband is appropriate.  The pool amounts to about $620,000 so this equates to $46,500 which in turn is the equivalent of giving to him an amount of about $93,000 before dividing the balance of the pool equally. 

Section 75(2) Factors

1. The husband has no specific qualifications for employment.  He was cross-examined about the sale of [omitted] post separation but at the end of the day I am satisfied that he has not made make any significant money from this to date and is unlikely to in the future.  He currently works thirty hours a week as a [omitted] earning $429 a week.  There does not appear to be any reason why he should not work full-time and increase his income accordingly.  As I understood his evidence he has chosen not to work full-time at this stage because he was uncertain as to what the arrangements would be in relation to the children.  I assume from this that if a shared regimen were to apply it might make full-time employment impractical or inappropriate.  Counsel for the wife submitted that I should assess his income earning capacity on the basis of the $51,346 he earned in the last year of his employment with [omitted] even though this was not typical of his earnings with that organisation which were usually much lower.  However, given his lack of qualifications, his time out of the workplace and my assessment of him generally I find that it is unlikely that he will be able to secure anything other than modestly paid employment.

2. The wife has worked in [occupations omitted]. She is presently employed by [omitted].  Her salary at the date of the hearing was in the order of $52,000 per annum.  She is currently in the process of completing a Masters Degree.  From my assessment of her and given her qualifications and anticipated qualifications I would expect that she will in due course be promoted beyond her present position with [employer omitted].  However I decline to speculate as to how much further she can expect to go and how much more she can ultimately expect to earn.  An incident of her employment is her capacity to accumulate superannuation significantly in excess of the amount that the husband can be expected to accumulate.

3. As a result of the children’s orders the wife will have the primary care of the two children.  If the husband were working full-time it would appear that he would be earning about $28,000 per annum.  According to the Child Support Agency’s calculator on its website this would render him liable for child support of about $48 a week.  The children, by agreement between the parties, attend a private school.  The fees are some $13,000 per annum and the wife has borne this expense since separation and I anticipate that she will continue to do so in the future.

4. The wife is engaged to be married and her fiancée is in employment.  She will have the benefit of sharing expenses and the benefit of the economies of scale that apply to a couple.  However I acknowledge that there can be no guarantee that this relationship will be permanent.

5. I take into account the fact that the contribution based division favours the husband. See Williams (unreported Finn J 12 December 2001) paragraph 70.

6. I take into account the fact that whilst each party’s share of the pool includes assets they cannot access, namely their superannuation, this mainly affects the wife who has the bulk of the parties’ superannuation.  See Wrona (supra) paragraph 22.

7. In all the circumstances I find that these section 75(2) factors balance out and I do not propose to make any adjustment on this basis.

Conclusion and overview

1. The end result is a division fifty seven and a half per cent in favour of the husband and forty two and a half per cent in favour of the wife.  This represents a differential of about $93,000. In all the circumstances I am satisfied that this is appropriate.

2. There is a degree of uncertainty as to the value of the [Property S] membership.  I indicated during the hearing that I would order its sale.  Given that it is the husband who does not accept the wife’s valuation I propose to order that he pay for any advertising.  If it sells for more than the wife’s figure I will provide for him to be reimbursed half of those costs. I will give the wife the option of retaining the membership by matching any offer that may be made.

3. Excluding the [S] the pool amounts to $615,653.  The part that does not consist of the sale proceeds of the [Property F] property totals $77,653.  Of this the husband has $24,500.  As I do not know the precise amount that will be received from the sale of the [Property F] property I will express the amount he is to receive as a formula.  I trust that this will be both correct and comprehensible.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate: 

Date:  24 May 2007