Needham & Needham
[2009] FMCAfam 160
•4 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NEEDHAM & NEEDHAM | [2009] FMCAfam 160 |
| FAMILY LAW – Parenting orders – whether to make orders for a 15 year old child in circumstances of both parents using her to communicate. PROPERTY SETTLEMENT – Greater initial contribution by the wife – assessment of s.75(2) factors. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA, 75(2), 79(2), 79(4) |
| Hickey v Hickey (2003) FLC 93-143 |
| Applicant: | MS NEEDHAM |
| Respondent: | MR NEEDHAM |
| File Number: | DGC 2136 of 2008 |
| Judgment of: | Bender FM |
| Hearing date: | 2 March 2009 |
| Date of Last Submission: | 2 March 2009 |
| Delivered at: | Dandenong |
| Delivered on: | 4 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brewer |
| Solicitors for the Applicant: | Peninsula Law |
| Counsel for the Respondent: | Mr Fookes |
| Solicitors for the Respondent: | Marshalls & Dent Lawyers |
ORDERS
CHILDREN’S ORDERS:
The parties have equal shared parental responsibility for the children of the marriage [X] born in 1993 and [Y] born in 2000 (“the children”).
The children live with the wife.
The children spend time and communicate with the husband as follows:
(a)each alternate weekend from 5.30 pm Friday to 5.00 pm Sunday commencing 13 March 2009;
(b)for one week in each of the school holidays as agreed between the parties and failing agreement for the first week in each of the holiday periods (save for Christmas Day and Boxing Day which are provided for in order 3(c), 3(d) 5(a) and 5(b) herein);
(c)from 5.00 pm Christmas Day to 5.00 pm Boxing Day in 2009 and each alternate year thereafter;
(d)from 5.00 pm Christmas Eve to 5.00 pm Christmas Day in 2010 and each alternate year thereafter;
(e)if Father’s Day does not fall on a weekend the children are with the husband, from 10.00 am to 5.00 pm Father’s Day;
(f)if the children’s birthdays or the husband’s birthday do not fall at a time the children are with the husband, then on a school day from after school to 7.00 pm and if it is a non-school day from 10.00 am to 2.00 pm;
(g)by telephone at reasonable times by calling either the children’s mobile telephones or the wife’s landline; and
(h)as otherwise agreed between the parties.
[X]’s time with the husband pursuant to orders 3(a) and (b) herein be subject to her wishes and to such alternate arrangements as are made by her with the husband.
The husband’s time with the children shall be suspended as follows:
(a)from 5.00 pm Christmas Eve to 5.00 pm Christmas Day in 2009 and each alternate year thereafter;
(b)from 5.00pm Christmas Day to 5.00 pm Boxing Day in 2010 and each alternate year thereafter;
(c)from 10.00 am to 5.00 pm on Mother’s Day; and
(d)between 10.00 am and 2.00 pm if the children are with the husband on the children’s or the wife’s birthday.
For the purposes of changeover, the husband shall collect the children from the wife’s home at the commencement of time spent and the wife collect the children from the husband’s home at the conclusion of that time, save for any birthday times when the parent who is to spend time with the child pursuant to orders 3(f) or 5(d) will be responsible for all travel.
If the husband is unable to spend time with the children pursuant to order 3(a) herein, he is to advise the wife of this inability no less than
5 days prior to the commencement of the time spent.
The wife shall authorise the children’s schools to provide to the husband, at his expense, copies of the children’s school reports, school photograph order forms and newsletters and the husband shall be at liberty to attend parent/teacher interviews, speech nights, concerts, productions, sporting events and such other school activities usually attended by parents.
Each parent will immediately notify the other of any accident or serious illness suffered by either of the children whilst they are in their care, and shall authorise the child/s treating medical practitioner/s to speak to the other parent.
The husband and wife shall within 21 days make contact with Gordon Care to make the necessary arrangements for them and the children to attend child inclusive mediation with the Parents Orders Programme provided by that organisation and to better assist the mediator/counsellor the parents are authorised to provide the mediator/counsellor with a copy of the family report of Delma D’Silva.
PROPERTY ORDERS:
The wife retain for her sole use and benefit the following:
(a)the amount of $176,002.40 from the proceeds of sale of the former matrimonial home;
(b)all shares in public companies held in her sole name;
(c)the Nissan Navara motor vehicle; and
(d)her superannuation entitlements with Health Super and AXA.
The husband retain for his sole use and benefit the following:
(a)the amount of $95,193.60 from the proceeds of sale of the former matrimonial home; and
(b)the boat.
Paragraphs 13 to 22 of these orders are binding upon the Trustee of Emergency Services Superannuation Scheme (“the fund”).
The base amount allocated to the wife out of the interest of the husband in the fund is $60,000.00 (“the base amount”).
Pursuant to section 90MT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the interest of the husband,
Mr Needham (born in December 1964, member number [5]), in the fund:
(a)the wife shall be entitled to be paid an amount to be calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $60,000.00 (provided that such base amount shall not exceed the value of the interest determined under section 90MT(2)); and
(b)there be a corresponding reduction in the superannuation interest of the husband to whom the splittable payment would have been made but for these orders.
The Trustee of the fund pay to the wife or the Trustee of her nominated superannuation fund the entitlement calculated in accordance with
Part 6 of the Family Law (Superannuation) Regulations 2001.
The operative time for the purposes of these orders is the fourth business day after the date of service of a sealed copy of these orders upon the Trustee of the fund.
Paragraph 17 of these orders has effect from the operative time.
Until the happening of any of:
(a)the transfer or (“rolling over”) into another superannuation fund of the payment split created by these orders; or
(b)the wife satisfying a condition of release and being paid the payment split which was created by these orders; or
(c)the wife executing a waiver of her rights within the meaning of section 90MZA of the Act in relation to the payment split created by these orders;
the husband shall be and is hereby restrained by himself or his agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in the fund a “non-splittable payment” within the meaning of the Family Law (Superannuation) Regulations 2001 and the trustee of the fund shall give effect to this order.
If as a result of termination of his employment, the husband becomes entitled to a benefit prior to the Emergency Services Superannuation Board (“ESSB”) making a payment under section 22F of the Emergency Services Superannuation Act 1986, he shall provide to the ESSB all such forms as shall be necessary to enable the Trustee to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require, within
7 days of that entitlement arising.
A sealed copy of these orders be served upon the Trustee of the fund by the wife’s lawyers, Peninsula Law.
Each party and the Trustee of the fund be at liberty to apply in relation to the implementation of the orders affecting the husband’s superannuation interest.
Unless otherwise specified in these orders;
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action, furniture, personal possessions and chattels) in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner named thereon;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(d)monies standing to the credit of the parties in any bank account are to become the property of the party named therein;
(e)any monies standing to the credit of the parties in any joint mortgage account are to be divided equally between the parties; and
(f)any joint tenancies of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Needham & Needham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES |
DGC 2136 of 2008
| MS NEEDHAM |
Applicant
And
| MR NEEDHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
This is the wife’s application seeking orders in relation to arrangements for the children of the marriage, [X] born in 1993 (“[X]”) and [Y] born in 2000 (“[Y]”). The wife is also seeking orders in relation to property matters.
The wife was born in April 1966 and is 42 years of age.
The husband was born in September 1964 and is 45 years of age.
The parties commenced cohabitation in April 1990 and were married in February 1991. They separated on 31 December 2006.
The husband is employed by [omitted] and earns a gross salary of $70,500.00 per annum. He is able to salary sacrifice and does so by way of a lease arrangement for his motor vehicle.
The wife is employed full-time as [omitted], a disability service that runs programs for adults with disabilities. She earns approximately $46,000.00 a year and is salary sacrificing $296.00 per week.
At the commencement of cohabitation, the wife owned a property at [C] which had a value of $168,000.00. It was encumbered by way of a mortgage of $80,000.00. This property was sold in 1994 and the proceeds of sale were used towards the purchase of the former matrimonial home in [A].
In 1999, the wife received an inheritance from her father of $32,785.64 in shares, as well as a half share in a Holden Commodore motor vehicle, which the wife sold to her sister for a payment of approximately $4500.00.
The shares inherited by the wife were sold and, by agreement, the proceeds of same were divided equally between the husband and wife for the purposes of future shares investment. It is common ground between the parties that they had very different views as to how the money should be invested with the husband being more adventurous and the wife being more conservative.
The wife’s shares investments now stand at an agreed value of $19,846.00.
The husband’s investments were not successful and the monies invested by him were lost.
After separation, the wife and children remained in the former matrimonial home until February 2008 when they relocated to Hastings as the wife had found employment in that area. The former matrimonial home has since been sold and the net proceeds of sale, being $271,196.00, are currently held on trust.
The husband is a member of the ESSS Superannuation Fund, which he joined in October 1987, when he joined the [occupation omitted]. He has a current entitlement of $197,390.00. It was his evidence that at the commencement of cohabitation, his superannuation entitlement was approximately $5000.00.
The wife has superannuation entitlements with AXA Retirement Bond and Health Super, and her current entitlements are $76,216.00.
After separation, the children [X] and [Y], remained in the primary care of the wife and initially spent intermittent time with their father. They now usually spend alternate weekends with their father from Friday to Sunday, as well as some holiday time. Because of his employment as a [occupation omitted], there have been occasions when the husband has been unable to spend time with the girls. This is a source of friction between the parties.
Children’s matters
There is no dispute between the parties that the children are to live with the wife.
The husband is seeking orders that [X] and [Y] spend alternate weekends with him from Friday to Sunday, one week in each of the school holidays, and for the special days such as Christmas, Father’s Day and birthdays.
The wife is seeking that orders be made for [Y] only. She is of the view that it is inappropriate to make orders for [X]. She is 15½ and orders are unnecessary for her. It was her evidence that [X] has told her that she doesn’t want any orders to be made.
The wife also seeks that in relation to school holidays, the orders should be for the children to spend two weeks with the husband each alternate holiday, as this would allow both of them to take the children on a long holiday.
A Family Report was prepared by Delma D’Silva, which was released to the parties on 20 February 2009.
In that Report, Ms D’Silva noted at paragraph 26:
“The writer assessed that the relationship between the parents is acrimonious and there is no communication between them which impacts on their ability to make co-operative parenting arrangements and decisions. Currently communication about parenting arrangements occurs through [X].”
Ms D’Silva reports that Ms Needham told her that she didn’t wish to have parenting orders made in respect to [X] because:
“[X]’s very angry and feels used.”
Ms D’Silva was provided with a number of documents by
Ms Needham, amongst which she found a copy of a letter written by [X] to provide evidence to the Child Support Agency about visits that she had with her father in relation to a dispute the parties were having with the Child Support Agency about the level of child support to be paid by the husband.
Ms D’Silva was most concerned that [X] had been embroiled in the parental dispute.
When speaking with Mr Needham, Ms D’Silva noted in her Report that he had acknowledged that he currently negotiates visits with [X]’s assistance because of his inability to communicate with Ms Needham.
Ms D’Silva interviewed the children, and in relation to [X], at paragraph 53, she said:
“[X] reported that her parents do not communicate at all with each other and that communication about parenting arrangements occurs through her virtually since their separation. [X]’s information revealed that her mother constantly confides in her about everything that is happening. She appeared anxious and added that her father also sometimes discusses adult issues with her but this occurs less often with him because she spends less time with him. She stated that she tries not to let it affect her, but she feels stressed by their conflict and it is affecting her studies.”
In paragraph 56, Ms D’Silva further reported:
“[X] impressed as being stressed and over-burdened by her role as the intermediary and communicator between her parents. When her views were sought about her parenting arrangements, [X] reported that fortnightly visits with her father are working alright for her and she does not have a problem with spending a week of the school holidays with her father.”
Further in the same paragraph, Ms D’Silva reports:
“She (sic [X]) stated that if there was one thing she would like to change about her family, it would be that her parents can communicate with each other and refrain from speaking through her.”
Ms D’Silva specifically addressed the issue of there being orders made for [X] and in paragraph 78 of her Report stated as follows:
“The information from both children indicates that they would like to have a regular relationship with their father. [X]’s views did not concur with Ms Needham’s proposal for her to spend time with her father in accordance with her wishes. [X] stated that she does not have any difficulty with spending alternate weekends and a week of each school holiday with her father.”
Ms D’Silva then made recommendations in the following terms:
82. That the parties have equal shared parental responsibility for the children.
83. That the children live with Ms Needham.
84. That the children spend time with Mr Needham as follows:
·On alternate weekends from 5.30 pm Friday to 4.00 pm Sunday;
·For one week during each school holiday period;
·On special occasions including Christmas, Easter and Father’s Day; and
·Telephone communication on designated days and times.
85.
That for the purposes of changeover, Mr Needham collect the children from Ms Needham’s home at the commencement of time spent and Ms Needham collect the children from
Mr Needham’s home at the conclusion of time spent.
86.
That if Mr Needham is unable to collect the children on his weekend that he provides as much notice as possible to
Ms Needham or a minimum of 2 days notice prior to the commencement of time spent.
87. That the parties and children be referred for child inclusive mediation with the Parent Orders Program at Gordon Care or similar agency.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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 people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In this case, both parties agree that they should have equal shared parental responsibility for the children. However, the parties complete inability to communicate, which as noted from Ms D’Silva’s Report is negatively impacting on the children, needs to be addressed, and it will be imperative that the parties attend the counselling that has been recommended by Ms D’Silva.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
There is no application by either party that the court make an order for the husband to spend equal or substantial and significant time with the children. The husband’s employment as a [omitted] involves shift work based on a changing fortnightly roster.
It was the husband’s evidence that he had made a specific request to his superiors to have each alternate fortnight off and that he had been advised that they would do that, subject to operational requirements. It was his belief that it would be a rare occasion when he would be required to work on the weekend that he was having the children spend time with him.
When determining what is in the children’s best interests, the Court must consider the matters set out in ss.60cc (2) and (3) of the Act. Each of the matters contained in the subsections must be considered and assessed in the context of each of the party’s behaviours and proposals and a determination made of which party’s proposals best meet the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The children do have a meaningful relationship with both of their parents. Ms D’Silva observed the children to relate well with both of their parents.
Ms D’Silva was critical of both parents’ involvement of [X] in their ongoing conflict. It is incumbent on both parents to address their communication problems so that they do not involve their children, particularly their eldest daughter, in what should be the necessary communications they have as the parents of the girls.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and I will consider each of these in turn.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Both girls expressed the clear view that they wanted to spend regular time with their father and that alternate weekends and one week in each of the holidays worked for them.
Despite the wife’s protestations that [X] did not want any orders made in relation to her time with her father, this was not a wish that she expressed to Ms D’Silva.
What [X] discussed with Ms D’Silva was the level of stress that she was experiencing because of the conflict between her parents and because both of them were using her as a means by which they communicated. Both were also involving her in adult issues.
What [X] most wanted was for this to stop and for her parents to communicate civilly with each other.
The wife gave evidence that [X] had told her the night before the hearing that her father had indicated to her that he was seeking orders in relation to the time that she was to spend with him, but in the event she didn’t want to attend from time to time, that he would abide by her wishes.
At my request, Counsel on behalf of the husband confirmed with his client that that was the case.
In order for [X] not to be the ‘meat in the sandwich’, I am of the view that it is in her best interests that orders be made, but they be worded in such a way that they reflect the husband’s indications that he will respect her wishes. This will become more relevant as [X] becomes older and she properly prioritises her peers and interests over those of both her parents.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As noted earlier, the children have a good relationship with both their parents. It is clear they wish to spend regular time with their father whilst continuing to be in the primary care of their mother.
Both children, but particularly [X], have been exposed to the parents negative views of the other and their ongoing conflict. It is going to be very important that the parents address this in order to assist their children.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Both parents blame the other for the difficulties the husband had in spending regular time with the children, particularly immediately after separation.
There is no doubt their inability to communicate with each other has contributed to this difficulty and they need to address this issue as soon as possible. This is particularly so in circumstances where it is acknowledged that [X]’s performance at school has deteriorated and that one of the causes for this is the stress she is feeling by being the ‘meat in the sandwich’ of her parent’s dysfunctional relationship.
Whilst the husband’s work commitments intrude on his ability to always be there for his children, it will be really important for him to try and minimise as much as possible any cancellations of his time with the children.
Discussions took place as to the notice the husband is able to give, and whilst the rosters are only formalised two days before they come into being, he conceded that he would be able to ascertain his roster some seven days beforehand. In these circumstances, it is important he advises the wife and more importantly the girls of his inability to see them on a particular weekend because of work commitments as soon as he possibly can.
It will be important that the husband prioritises his time with the girls over any other commitment, other than work.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Not relevant.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Because of the husband’s occupation and because the parties live some sixty minutes apart, it has not always been easy for the girls to spend time with their father. The parties need to work co-operatively to minimise that.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents have the capacity to provide well for the children’s physical, intellectual and emotional needs, but must ward against the level to which they have involved [X] to date in their ongoing dispute.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
On the whole, both parents have demonstrated a positive and appropriate attitude to the responsibilities of parenthood. However, as noted previously in this judgment, it is vitally important that they start to shield the girls, particularly [X], from their ongoing conflict, and commit to the therapeutic interventions recommended by Ms D’Silva.
In this regard, it is my intention to make orders that they and the girls participate in that therapeutic intervention.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The parties, to their credit, have managed to put in place arrangements for the girls to see their father, and the orders that are being proposed generally accord with the structures that both parties seem to desire.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
One area where the parties were apart related to the arrangements for the school holidays. The wife seeks orders that the girls spend two weeks with her in the first set of holidays, two weeks with the husband in the second set of holidays and alternately thereafter.
The husband seeks orders that the girls spend a week of each of the term holidays and a week in the summer holidays with him. In relation to the latter, it was the husband’s evidence that all members of the [occupation omitted] are only allowed to take one week of holidays in the long summer vacation.
I think it is important that the girls get the opportunity to spend a longer period of time with their father on more than two occasions a year.
As I commented to the parties during the running of the matter, it is to be hoped that in the event one or other of them have the opportunity to take a longer holiday with the girls, that with adequate notice, that opportunity will be afforded to the girls and that parent from time to time.
Conclusion
There are occasions when the court declines to make orders in relation to older children, particularly older teenagers. In this case, I believe that it is in [X]’s best interests that there be orders put in place, that give a framework around the time that she is to spend with her father.
This will obviate the necessity for her to be the go-between when negotiations are taking place for arrangements for the time they spend with their father.
At the same time, it is also in her best interests that the orders recognise her level of maturity and allow her, through direct discussion with her father, to make other arrangements that accommodate her expanding interests, social life and increasing maturity.
The parties were in agreement as to the orders being made for [Y], and they will be made accordingly.
Also, as noted earlier, I believe it is in the girl’s best interests that they spend a longer period of time regularly with their father during the year, and it is accordingly ordered that they are to spend one week in each of the school holidays with their dad.
Property matters
The parties are in agreement that their property pool consists of the following:
Non-Superannuation assets:
Proceeds of sale of former matrimonial home $271,196.00 Shares (in wife’s name) $ 19,846.00 Nissan Navara (wife’s vehicle) $ 4,500.00 Husband’s boat $ 2,000.00 Total $297,542.00
Superannuation assets:
Husband’s superannuation $197,390.00 Wife’s superannuation $ 72,216.00 Total $269,606.00
The husband conceded that the wife made a greater initial contribution to the matrimonial assets, arising from her interest in the [C] property, as well as the shares inheritance.
Whilst the parties devoted a considerable part of their affidavit material to the payment of joint debts post separation and the use of the wife of rental monies received by her in relation to the former matrimonial home prior to it’s sale, I identified the real issues between the parties as follows:
a)whether the shares in the wife’s name should be quarantined from the property pool for division between the parties;
b)the weight to be attributed to the superior financial contributions of the wife;
c)the relevance of the difference in the income and earning capacity between the parties;
d)having agreed that there be a 50:50 division of superannuation between the parties, what amount should be attributed as the figure for the husband’s superannuation arising from his pre and post cohabitation contributions;
e)the relevance of the wife having the primary care of the children in circumstances where the husband is paying child support in excess of $900 per month; and
f)the relevance of the wife’s health.
The legislation
Section 79 of the Family Law Act1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Sub-section 79(2) of the Act provides that:
The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The four-step approach
In Hickey v Hickey (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four-step approach in property matters as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case ….
Assets and liabilities
The issues in this regard are two-fold.
Firstly, should the shares in the wife’s name be included in the asset pool. The parties agree that the shares in the wife’s name arise as a result of an inheritance that she received from her father’s estate in 1999. It was also common ground that at the time the inheritance was received, the parties could not agree as to how the funds should be invested. The shares were sold and the proceeds were divided equally between them. The wife took a more conservative approach to the investing of the funds, and the husband taking a more adventurous and therefore risky approach. As noted previously in this judgment, the wife’s investments have borne fruit and have a current value of some $19,846.00, whilst the husband’s risk-taking proved to be fatal, and he lost the funds invested.
It was argued on behalf of the wife, that in those circumstances it was only just and equitable that those funds be quarantined from the property pool for division between the parties. It was her position that the husband had made no contribution to those funds, and that since the division of the inheritance between the parties, the husband had made no contribution to their acquisition or maintenance.
On behalf of the husband it was argued that if the husband’s investment had turned into a million dollars, the wife would be seeking a share of same, and that it was inequitable for her to say that because the investments he had made had been unsuccessful, he had no entitlement to the remainder of the inheritance. In these circumstances he argued that the value of the wife’s shares should be included in the pool of joint assets.
It was the parties’ joint evidence that upon the division of the share inheritance equally between the two of them, those funds were quarantined from the day to day financial endeavours of the parties.
I therefore intend to exclude the wife’s shares from the pool of assets to be divided equally between the parties.
It was common ground between the parties that in determining the division of assets between them, the non-superannuation assets were to be dealt with differently from the superannuation assets. It was further agreed in relation to the superannuation assets that there should be an adjustment in the wife’s favour, based on a 50:50 division of the superannuation assets as between them.
It was the husband’s evidence that at the commencement of cohabitation, he had been a member of his fund for just over two years and that it had a value of approximately $5000.00.
Initially, the wife sought that a calculation take place on the basis of the whole of the husband’s superannuation entitlement being included. It was conceded during closing that it would be appropriate for the initial $5000.00 to be taken off the figure so that the amount to be attributed to the husband’s superannuation for the purposes of the calculation be $192,390.00.
It was the husband’s case that the parties had cohabitated for some
16 of the 20 years that he had been contributing to the fund, and that accordingly the whole of the value of his superannuation should not be included in the calculation for the adjustment for division. Without attributing an actual figure to be included, it was argued on behalf of the husband that a splitting order should be made in relation to his superannuation on the basis that a base amount of $55,000.00 attributable to the wife would be just and equitable to take into account the husband’s non-cohabitation contributions.
I agree that the whole of the value of the husband’s superannuation fund should not be placed into the pool for the calculation of the division of superannuation between the parties. I believe it is just and equitable to adjust that figure to reflect it’s value at the commencement of cohabitation, and that the amount of $192,390.00 should be the value of the superannuation attributable to the husband for the purposes of the calculation of the division of the assets.
Otherwise, the non-superannuation assets for division between the parties are as follows:
a)Proceeds of sale of former matrimonial home, in the sum of $271,196.00;
b)Wife’s Nissan Navara, in the sum of $4,500.00*; and
c)Husband’s boat, in the sum of $2,000.00
being a total of $277,696.00.
(*It was put on behalf of the wife that the vehicle had deteriorated since she swore her financial statement and that the car was not currently going. It was conceded however that in the absence of any sworn evidence to the contrary, the value of the motor vehicle was in accordance with her sworn documentation and taken to be $4500.00.)
The superannuation entitlements of the parties to be used to calculate an adjustment on a 50:50 basis are as follows:
a)Husband’s ESSS superannuation, in the sum of $192,390.00; and
b)Wife’s Hestia/AXA superannuation, in the sum of $72,216.00
Contributions
It was common ground that the wife made the greater initial contribution to the parties’ asset pool, arising from the equity in her property in [C]. The husband filed an affidavit from Mr H, property valuer, in which he deposed that the value of the [C] property as at the commencement of cohabitation was $168,000.00. This evidence was not challenged by the wife. The parties agree that at the commencement of cohabitation this property was encumbered by a mortgage of some $80,000.00 and accordingly, I find that the wife made an initial contribution of $88,000.00.
As set out earlier in this judgment, the wife received an inheritance from her father of shares and a motor vehicle which were utilised by the parties in the manner as set out previously in this judgment.
The wife has been the principal homemaker for the family. Throughout the course of the marriage, the husband was employed as a [omitted]. In 1998, the husband took up his current position with the [omitted in [B]]. The husband’s working arrangements were such that he worked for four days on and then had four days off. Because of the considerable distances between [A] and [B], the husband would stay in [B] whilst rostered on and would return home for his four days off.
Other than for twelve months after the birth of each of her children, the wife was engaged in full-time employment, as well as assuming the responsibilities as homemaker. The wife holds a real estate agent’s licence, and initially worked in her father’s real estate business. She then took up employment in disability services, but in June 2006, succumbed to a stress-related injury and was hospitalised for some weeks, and was unable to return to work for some seventeen months. During this period, the husband took six months off work in order to care for the wife and the children.
The wife successfully returned to the workforce in February 2008 and is employed on a full-time basis as an assistant programme director with [omitted] in Hastings.
On behalf of the husband, it was conceded that the wife had made a greater initial contribution to the assets of the parties and that there should be a weighting in her favour of some 15 percent to reflect that initial contribution.
On behalf of the wife, it was argued that there should be a loading of some 20 percent, though this weighting both contribution and s.75(2) factors.
Taking all these matters into account, I am of the view that if this matter were to be considered on contribution alone, then it would be appropriate for there to be an adjustment of 10 percent of the net value of the assets, excluding superannuation and the wife’s shares, in the wife’s favour.
However, in making the final order, I am also to consider the relevant matters under s.75(2) of the Act and to make an order that is just and equitable in all the circumstances.
Section 75(2) factors
The husband is a [occupation omitted] and has been for some 20 years. He is currently a [senior position], and it was his evidence that he has no intention at this time to seek promotion as he loves what he does. Any promotion would result in him not being able to be an active [omitted]. He currently earns $70,500 per annum.
The wife is in full-time employment as an assistant programme manager in the disability services industry. She earns $46,000.00 per annum.
It was the wife’s evidence that she continues to suffer from severe work-related migraine headaches, and that this impacts on her ability to work and to earn income. However, whilst it was common ground that the wife did have seventeen months off work because of illness, she did not provide any current evidence as to her current state of health. I am satisfied that she is able to continue in full-time gainful employment.
The wife is the primary caregiver of the two children of the marriage, [X] aged 15 years and [Y] aged 9 years. Because of his work commitments, the husband is only able to spend alternate weekends and four weeks of holiday per annum with the children. Accordingly the bulk of their care falls on the wife. The husband is paying child support as currently assessed in the sum of slightly more than $900.00 per month, and has met his child support obligations since separation.
It was the husband’s contention that whilst there was some discrepancy in earning capacity, the wife’s ability to salary sacrifice and the not large disparity in their incomes as well as his proper level of child support meant that there should be no adjustment in relation to s.75(2) factors.
The wife argued that there is a clear disparity in earning capacity now and into the future. She also argued that as she has the primary care for the children and that despite the proper level of child support paid by the husband, the real burden of their care fell primarily on her both practically and financially. She did not, however, put a specific level of adjustment that she said needed to take place in relation to the factors, but combined her initial greater contributions and these factors to argue that there should be a 20 percent adjustment in her favour.
Having considered all these factors, I am of the view that there should be an adjustment of 5 percent on the assets, excluding the wife’s shares and superannuation, in the wife’s favour.
Conclusion
Consequently, the wife shall retain the shares in her name.
Further, the wife shall receive 65 percent of the remaining non-superannuation assets, being the net proceeds of sale of the former matrimonial home, the Nissan Navara and the husband’s boat.
In relation to superannuation, there will be a splitting order made in relation to the husband’s ESSS superannuation, calculated on a 50:50 division of the husband’s superannuation, using a figure of $192,390.00 as the appropriate amount attributable to the husband’s superannuation for the purposes of the adjustment.
I am of the view that the overall result is a just and equitable one for the purpose of s.79(2) of the Act.
I certify that the preceding one-hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 4 March 2009
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