NOLTE & AGUILAR
[2019] FCCA 1202
•10 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NOLTE & AGUILAR | [2019] FCCA 1202 |
| Catchwords: FAMILY LAW – Property proceedings where 4 children have significant disabilities – contributions similar – s.75(2) factors more significant – relatively small pool of assets – Husband has significant earning capacity – Wife devoted to care of disabled children and not free to work – unusual facts. |
| Legislation: Family Law Act 1975 (Cth) ss.79(2), 79(4)(a), 79(4)(b), 79(4)(c), 79(4)(d), 79(4)(e), 75(2) |
| Cases cited: Jewel & Jewel [2013] FCWA 81 AJO v GRO (2005) FLC 93-218 |
| Applicant: | MS NOLTE |
| Respondent: | MR AGUILAR |
| File Number: | MLC 9472 of 2014 |
| Judgment of: | Judge Curtain |
| Hearing dates: | 24, 25 & 26 September 2018 |
| Date of Last Submission: | 20 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hancock |
| Solicitors for the Applicant: | Starnet Legal Pty Ltd |
| Counsel for the Respondent: | Dr Parker |
| Solicitors for the Respondent: | Amicus Lawyers |
ORDERS
That the wife pay to the husband the sum of $27,000 (“the payment”) within 120 days (“the date”).
That contemporaneously with the payment:
(a)The husband do all acts and things and sign all such documents as may be required to transfer to the wife at her expense all of his right, title and interest in the real property situate at and known as Property A (“the real property”); and
(b)The wife indemnify the husband against all payments and liabilities, all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
That in the event that the whole payment has not been made by the date then the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)First to pay all costs, commissions and expenses of the sale;
(b)Secondly to discharge encumbrances affecting the real property;
(c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 7.5 per centum per annum adjusted monthly from the date to the husband; and
(d)Fourthly the balance to the wife.
That pending the payment or completion of the sale:
(a)The wife has the sole right to occupy the real property and during such right of occupation the wife pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party, save the wife be permitted to borrow against the real property to pay the husband.
That the husband have the sole interest in the Motor Vehicle B in his possession and the wife have the sole interest in her Motor Vehicle C in her possession.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and the like chattels in the real property being deemed to be in the possession of the wife);
(b)The husband have the sole interest in the superannuation benefits belonging to or earned by him with Super Fund D;
(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; and
(d)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That the Application of the wife and Response of the husband is otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Nolte & Aguilar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9472 of 2014
| MS NOLTE |
Applicant
And
| MR AGUILAR |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a property dispute involving a married couple who cohabitated for over sixteen and one half years. The parties have four children and they play a significant role in this case because of their serious long term disabilities and hence, their needs. As a Trial Judge you are sometimes concerned about the emotional and financial burden that some people have to carry in life. These parents have met that challenge historically but the future demands and needs of their four children is a major issue in this case. The oldest Ms E, was born on … 1997 and she has been diagnosed with Global Intellectual Disability and has a range of learning difficulties and mild epilepsy. She also has keratoconus.
Their second child [X] is aged 17, was born on … 2001. He has been diagnosed with severe Autism Spectrum Disorder and severe intellectual disability. He is non-verbal and requires fulltime care and supervision. To add further problems, he also suffers from epilepsy.
The third child [Y] is nearly 12, was born on … 2007 and has been diagnosed with mild Autism Spectrum Disorder, including speech and communication delay. He also suffers from asthma.
The youngest child [Z] is aged 6, was born on … 2012. She has been diagnosed with Autism Spectrum Disorder and requires supervision and is a demanding child.
To add to the difficulties of this dispute, the parties have a relatively small pool of assets made up primarily of the humble former matrimonial home and relatively small superannuation fund.
Background
The applicant wife was born on … 1974 in Country F and came to Australia in 1996. She is currently aged 44 years and is involved in the fulltime care of the four children of the marriage.
The respondent husband was born on … 1969 in Country F and is aged 50 years. He has worked throughout the marriage in blue-collar jobs and currently is employed as a factory worker.
The parties were married on … 1996, and separated on 20 June, 2013, a period of about sixteen and one half years’ cohabitation. The first child Ms E was born on … 1997. The parties had been married 11 months when she was born. It effectively meant that the wife was not free to seek employment for reward outside of the home given the demands of Ms E and subsequently her siblings, with each having some form of disability.
Initially there were proceedings on foot for both parenting and property orders but the parenting matter was resolved and I made final orders by consent of the parties on 12 August 2016, as follows:
1.All current parenting orders be discharged.
2.The mother and the father have equal shared parental responsibility for:
MS E born … 1997 ("MS E") (now an adult child);
[X] born … 2001 ("[X]");
[Y] born … 2007 ("[Y]"); and
[Z] born … 2012 ("[Z]") ("the children").
3.The children live with the mother.
4.MS E spend time and communicate with the father as is agreed between MS E and the father.
5.[X], [Y] and [Z] spend time and communicate with the father as follows:
a.On a THREE WEEK CYCLE to coincide with the father's shift work;
b.WEEKEND ONE OF THE THREE WEEK CYCLE: (When the father works Morning Shift from 6.00 a.m. until 2.00 p.m. Monday to Friday);
i. From 11.00 a.m. Saturday (with changeover to take place at Suburb A Community Centre) until commencement of school Monday (with the father to deliver [X] to school then [Y] to school and the mother to collect [Z] from [Y]'s school at commencement of school; until November 2016; commencing 27 August 2016; and then
ii. From November 2016, the father to collect [X] from conclusion of school Friday (from [X]'s school) and [Y] and [Z] from 7.00 p.m. Friday during non-Daylight Saving time and from 7.30 p.m. during Daylight Saving time (with changeover to take place at Suburb A Community Centre) until commencement of school Monday; with the father to deliver [X] to school and then [Y] to school and the mother to collect [Z] from [Y]'s school at commencement of school Monday;
c.WEEKEND THREE OF THE THREE WEEK CYCLE: (When the father works Night Shift from 10.00 p.m. until 6.00 a.m. Monday to Friday):
i. The father to collect [X] from conclusion of school Friday (from [X]'s school) and [Y] and [Z] from 7.00 p.m. Friday during non-Daylight Saving time and from 7.30 p.m. during Daylight Saving time (with changeover to take place at Suburb A Community Centre) until 4.00 p.m. Sunday (with changeover at the Suburb A Community Centre); commencing 19 August 2016
d.SCHOOL TERM VACATION PERIODS:
i. Upon the father giving the mother NO LESS THAN 28 days written notice of his intention to exercise a block of time during a school term vacation period, being a consecutive seven (7) night block, such time to be by written agreement and in default of agreement then from conclusion of school on the last school term day until 12.00 noon on the eighth consecutive day later (the father having the children in his care for seven consecutive nights), with the father to collect [X] and [Y] from their schools and the mother to bring [Z] to [Y]'s school for the purposes of effecting changeover at the commencement of time and changeover at the conclusion of time to take place at Suburb A Community Centre;
e.LONG SUMMER SCHOOL VACATION PERIOD:
i. From 11.00 a.m. 25 December until 11.00 a.m. 1 January, with changeover to take place at commencement and conclusion of time at Suburb A Community Centre;
f.OTHER:
i. As is otherwise agreed in writing (includes text messaging) between the parents from time to time, including … if agreed.
6.In the event the father exercises the block spend time for any school term vacation as set out in order 5(d) above; the time as set out in order 5(a), (b) and (c) above shall be suspended during such school term vacation and resume in the new school term on the three-week cycle to coincide with the father's availability due to his shift work.
7.In the event the father exercises the block spend time for the long Summer school vacation as set out in order 5(e) above; the time as set out in order 5(a), (b) and (c) above shall be suspended for such long Summer school vacation for at least one week after the father's block time concludes and then resume on the three week cycle to coincide with the father's availability due to his shift work, unless otherwise agreed between the parents in writing.
8.The father shall launder the children's clothing when they spend time with him in order that the children are able to conclude their spend time in the same clothing (where possible) and otherwise the father shall provide the children with their clothing and other needs during the time the children spend with him (ensuring that no baggage other than the children's school bags and medications travel with them), save unless otherwise agreed in writing between the parents.
9.The father shall provide to the mother a large calendar with his shifts clearly marked and indicating Week 1, Week 2 and Week 3, such calendar to be regularly replaced and updated as far in advance as possible to ensure there is no ambiguity as to the children's time spent with each parent.
10.The mother forthwith obtain an exercise book to use as a Communication Book ("Book"), which the parents shall use to record information pertaining to the children, with the Book to travel in one of the children's bags and be exchanged at every changeover for the children's time spent with the father, with the parents to record relevant information relating to the children, including extra-curricular activities, dates of functions, events, significant medical and other significant appointments; and such like; with all communication to be written in a respectful manner.
11.Each parent shall advise the other of any medication prescribed for any of the children, and ensure that such medication travels with the children, with each parent to ensure the medication is administered strictly in accordance with the prescribed dosage.
12.The mother, the father, their servants and agents, be and are hereby restrained by injunction from:
a.abusing, insulting, belittling, rebuking or otherwise denigrating the other parent and/or any member of the other parent's extended family and/or
b.discussing these proceedings, and/or any family violence allegations;
to or in the presence or hearing of the children or any of them and/or from knowingly permitting any other person to do so.
13.The mother and the father shall keep the other informed of their current home address and telephone contact number(s) and immediately advise the other parent of any changes thereto.
14.The mother forthwith authorize any kindergarten/ school the children or any of the children may attend to forward to the father, at the father's cost, copies of all reports, newsletters, certificates, photograph order forms, and such information generated in relation to any of the children; with each parent at liberty to attend all functions, events, parent-teacher interviews, concerts, sport and other extra-curricular events and such like that parents are normally invited to attend, subject to any kindergarten/ school policy in relation thereto.
15.Each parent as soon as practicable notify the other of any significant illness or significant injury or hospitalization suffered by any of the children and identify the treating health professional(s) and where necessary authorize the other parent to speak with and liaise with such treating health professional(s) with the other parent to be given the opportunity to attend significant medical appointments.
16.In the event any of the children have a medical or other significant appointment and the mother is unable to take the child to such appointment the father be given first option to take the child to such appointment where the father's shift work leaves him available to do so or alternatively, the mother takes a child to an appointment whilst the father cares for the remaining children.
17.These orders are a sufficient authority for any of the children's educational and health service providers to provide to the parents any information, document or thing in relation to any of the children (including, but not limited to, reports, letters, photographs and the like) and to discuss all matters pertaining to any of the children's education, health and wellbeing and to ensure that all kindergarten and school records include both parents as persons to be notified in case of emergency. The costs, if any, of such information, shall be paid by the parent requesting the information.
18.In the event the father intends to travel overseas, the father shall provide no less than 28 days written notice of his departure date and the date he shall return and be available to resume the spend time arrangement and clearly indicate in writing to the mother which particular week of the three week cycle the next spend time (upon his return) shall be.
Travel and passports:
19.In the event either parent wishes to travel with the children (“the travelling party”) overseas for a holiday during any period the children are in a parent's care (“the holiday”) or at any other time as is agreed in writing between the parents, then no less than 45 days’ written notice of intended travel shall be given to the other parent together with a full copy of the proposed travel itinerary and accommodation contact details.
20.Upon compliance with the preceding order, (or as otherwise agreed between the parents in writing) the travelling party is permitted to remove the children from the Commonwealth of Australia for the purposes of the holiday and the travelling party shall hold the children's passports prior to and during such holiday PROVIDED HOWEVER:
a.the travelling party gives to the other a copy of the final travel itinerary, return air tickets, contact addresses and telephone numbers whilst overseas; and
b.the Passports are returned to the mother for safe keeping within 7 days of the children returning to the Commonwealth of Australia; and
c.the travelling parent ensure the children communicate with the non-travelling parent by way of email, telephone and/or Skype or similar during such holiday;
d.with the travelling parent to provide "make up time", as close to the holiday as possible, to the other parent for spend time missed during the holiday.
21.Liberty be reserved to either parent to apply on short notice with respect to any issues in dispute regarding any overseas travel proposed for the children.
22.Each of the parents, upon a request of the other parent and at the cost of the requesting parent, do all such acts and things and sign all documents necessary to facilitate each of the children obtaining a Commonwealth of Australia Passport for the purposes of an overseas holiday.
23.Pursuant to Sections 65(DA)2 and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
24.Certify for advocacy.
25.The order of the Court appointing the Independent Children's Lawyer be discharged.
26.All applications in relation to parenting matters be dismissed and removed from the list of cases awaiting final determination.
AND THE COURT NOTES THAT:
A.The Three Week Cycle as set out in order 5 above reflects the work hours of the father, being:
a.Week One: Morning Shift from 6.00 a.m. until 2.00 p.m.;
b.Week Two: Afternoon Shift from 2.00 p.m. until 10.00 p.m.;
c.Week Three: Night Shift from 10.00 p.m. until 6.00 a.m.
B.The parents have indicated they wish to co-operate for the purpose of ensuring, as much as is practical, consistent care of their children, who have special needs and requirements.
C.The mother and the father shall seek any assistance necessary to investigate whether funding is available to assist with [X]'s day-to-day or respite care, behavioural management and transportation, particularly in regards to how any such funding can support [X]'s relationship with both of his parents.
D.The calendar provided by the father pursuant to Order 9 above shall also have marked upon it the father's Rostered Days Off which represent days the father is available to assist with the care of the children, if required.
E.The parties have acknowledged that the father may on occasion deliver the child [Y] to school slightly late due to the logistics involved in school drop offs.
Material of the parties
The Applicant Wife’s material:
(a)Case Outline, filed on 20 September, 2018;
(b)Amended Application filed on 24 June, 2015;
(c)Affidavit of Applicant Wife (consolidated) filed on 2 August, 2018;
(d)Financial Statement of Applicant Wife filed on 24 August, 2018;
(e)Affidavit of Dr G filed on 28 July,2018;
(f)Financial Statement of Application Wife filed 21 October, 2014;
(g)Family Report dated 11 August, 2015;
(h)Affidavit of Ms H sworn on 5 February, 2016; and
(i)Valuers dated 30 August, 2018.
The Respondent Husband’s material:
(a)Case Outline filed 16 April, 2018;
(b)Response to Interim and Final Orders filed 17 April, 2015;
(c)Affidavit of Mr Aguilar filed 17 April, 2015;;
(d)Affidavit of Mr Aguilar filed 14 August, 2015;
(e)Affidavit of Mr Aguilar filed 11 August, 2016;
(f)Affidavit of Mr Aguilar filed 12 April, 2018;
(g)Affidavit of Mr Aguilar filed 20 August, 2018;
(h)Financial Statement of Mr Aguilar filed 22 August, 2018; and
(i)Family Report dated 11 August, 2015.
The applicant’s evidence
Generally the wife gave her evidence in a style and with adequate detail that was helpful and relevant. She appeared to try to answer questions as best she could and Ms H corroborated her commitment to her children. I felt the wife understated the husband’s contributions as homemaker or parent.
The wife alleged that the husband owns some real property in Country F or Country J. At one stage she produced a document, which I marked exhibit “W1” which she said she obtained in 2017 from…“some relatives of the distant family.” It was dated 2 August 2004 and purported to be a transfer of a flat or apartment in the Country F from a Mr K to Ms L, (which is the same name as the husband’s mother). I was advised that the husband’s mother died in 2010.
I was troubled that there was no translation of this document. Further, no expert was called to corroborate what the wife alleged about the document. There was no evidence establishing that the name of the purchaser on the document was in fact the husband’s mother, as it is possible that there is more than one person by that name.
Moreover, there was no evidence that he provided funds for this alleged purchase, prior to or in 2004 when the evidence shows that he was still servicing the mortgage over their home, and was supporting himself, his wife and then two children.
At best it was hearsay and speculation. I found her evidence on this topic too little and unreliable to establish her allegation that this was in fact the husband’s overseas property.
The respondent’s evidence
The respondent husband also relied on affidavits setting out his allegations which I read closely. After hearing his evidence and observing him in the witness box and in the court over three days, I formed the view that he was seeking to make a good impression of himself and sometimes I felt he was… “gilding the lily”. Sometimes he sounded contrived and often went from providing too much information to too little, and frequently did not directly answer a question. From time to time I felt he was not being truthful in his answers.
Where the evidence of the husband and the wife came into conflict, I preferred the evidence of the wife.
Approach to property proceedings
There is a general approach to hearing property applications that has been established over time by the decisions in this area by the Full Court of the Family Court of Australia. This in part was recently refined following the High Court decision of Stanford v Stanford (2012) 87 ALJR 74.
I adopt the approach detailed by the Honourable Justice Walters at paragraph 72 of his decision in Jewel v Jewel [2013] FCWA 81 which in my view summarises well the steps required when applying the Family Law Act 1975 (Cth) he said:
72. Assuming a step-based approach to the determination of an application brought pursuant to the provisions of FLA s 79 is still appropriate, it is arguable that the effect of the High Court’s decision in Stanford is as follows:
a) The first “step” in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property.
b) The second “step” involves ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property. In most cases – relevantly, where the parties have separated and are no longer living in a marital relationship – the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the court that it is just and equitable to make orders altering the parties’ interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth steps.
c) In the third “step”, 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.
d) In the fourth “step”, the court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), 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 as a consequence of the previous step.
e) Finally, the court should consider the effect of the various findings and assessments it has made and make such orders as it considers are just and equitable in all the circumstances. As I have recorded above, my view is that this process does not amount to an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, just and equitable orders might be achieved having regard to all the circumstances of the case.
I also note the following approaches which I find helpful in applying s.79 of the Act:
A.Sebastian & Sebastian [2013] FamCA 191, Young J (at [152]-[154]):
“It is my opinion that post-Stanford a Court is required to:
· First, identify the existing and therefore divisible property of the parties;
· Secondly, evaluate whether it is just and equitable to pronounce an order; and
· Thirdly, assess what orders should be made upon consideration of all of the s 79(4) factors, including the matters referred to in s 75(2).
What remains uncertain is whether it is permissible for a Court to finally reflect upon and consider, on an overview basis, if the proposed orders are just and equitable,
My own approach at that final stage has been to reflect upon and then ask of myself the question of whether the orders are just and equitable in their division of property, their structure and particularly in their monetary outcome.”
B.Baglio & Baglio [2013] FamCA 105, Murphy J (at [181]):
“As a result of those matters, the Court’s approach to s 79 may be less compartmentalised than what a strict or unthinking adherence to four (or three) ‘steps’ might otherwise reveal. The task is essentially holistic; it is just and equitable in the particular circumstances of the particular relationship or marriage under consideration to make an order and, if so, its terms must similarly meet that criteria. Of course holistic though the approach is, it must be referenced to what the Act requires and care must be taken to ensure that the Court’s reasons make that clear…”
The pool
There was some debate as to funds spent by the husband but my assessment, which I discuss in detail later in this judgment, is as follows :
Assets
| ASSETS | |
| Assets | Value determined on the evidence (rounded to nearest dollar) |
| a) former matrimonial home Property A | $585,000 (agreed) |
| b) Husband’s motor vehicle | $11,000 (agreed) |
| c) Husband’s withdrawals from savings account used by him for holidays | $50,000 (c) |
| d) Wife’s motor vehicle | $1,300 (agreed) |
| e) Husband’s overseas money transfers | $91,800 (c) |
Liabilities
| LIABILITY | NIL |
| SUPERANNUATION | |
| Superannuation | Agreed value (currently) (rounded to nearest dollar) |
| a) Husband’s superannuation | $136,033 (agreed) |
| b) Wife’s superannuation | NIL |
Section 79(2) 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.
Both parties seek a different division of the major asset, being the former matrimonial home. It is therefore, in my view, just and equitable that these proceedings were commenced and further that there is a hearing to determine an appropriate outcome between competing proposals.
Contributions
Section 79(4)(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
The respondent husband migrated to Australia in around mid-1992 and the wife in or about … 1996 when they were married. Around 12 months later they purchased the former matrimonial home at Property A. It is common ground that this was purchased for around $117,000 with the respondent husband paying the deposit of around $35,000 and the remainder of funds were covered through a loan from the …. Bank.
Throughout the marriage the husband was the… “breadwinner”, including in 2000 working two jobs. He says in his affidavit sworn 12 April, 2018 at paragraph 6, the following… “I was primarily responsible for the financial contributions and the applicant wife was the primary carer of our children.”
In the same affidavit at paragraph 4 he says he had savings of approximately $35,000 which he used as a deposit that were accrued prior to cohabitation. At exhibit “A1” he has a copy of a statement from the … Bank disclosing a savings balance as at … 1997 of $35,123.02. This was conceded by the wife under cross-examination. I note as at 7 January, 1997 he had savings of $32,900.
The wife came into the marriage just with… “my clothes.”
It was also conceded by the wife that the husband… “paid 100% of the mortgage”… and paid all of the bills, utilities and food, including household rates for years after separation.
It was also established he was the sole money manager for the family but what it was not clear was how much of his financial resources were due to monies provided to the family by way government benefits, which they clearly received because of their low income and 4 disabled children, as distinct from the income generated by the father’s employment. He admitted that the Carers Pension was applied for by him and paid into his bank account.
What is crystal clear is that the wife and children did not enjoy a high standard of living. The wife said in cross-examination…“we were living on peanuts…” She went on to also say that … “we were all the time relying on buying the cheapest things, like even when used to shop for the children. We used to go to the cheapest stores, K-mart and we used to buy things for $2, $5, $10, it would maximum things (SIC) that way, not that expensive and wouldn’t cost much.” She then went on to criticise the husband for sending monies overseas to his family, when by implication it could have benefited their children. I accept that their austere lifestyle made her role more onerous.
On that topic she said that after separation she found… “many hidden papers in the garage which proved that he used to send monies overseas. I used to find small slips”… which would indicate there were past transfers of monies to Country J by the husband which was a significant issue in this case.
Section 79(4)(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
There was little evidence led on this topic but it is clear that both of the parents worked in or around the home maintaining and improving that asset. Their contribution in this area is similar.
Section 79(4)(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
There is a concession by the husband in his material that the wife was the primary care giver to the four disabled children. I accept that when he was not employed and available to assist at home he did so, but the major caregiver for these children and a significant contribution by the mother was in the capacity of home maker and parent for these children, which was demanding and challenging given their disabilities.
The Husband overstated his role in relation to home duties and the Wife understated it, in my judgement. I note when being cross-examined on this topic he said that when he came from work he would usually lie on the sofa and sometimes he would help with the meals, bathing the children and school transportation. He said at paragraph 11 of his affidavit sworn 20 August, 2018… “I would assist in doing the dishes if she asked me for help”… and conceded in cross-examination that she did most of the dishwashing. They did not own a dishwashing machine.
I further note in cross-examination he said that he helped her because… “the work she got is a lot.” His role also had to be seen in the circumstances where he sometimes worked 6 days a week and in one year also worked as a courier as a second job and was not always available to assist. It is to be noted that he also benefited from her homemaker role.
Section 79(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage
I will be making orders that will have no significant affect, if any on the earning capacity of either party to this dispute.
Section 79(4)(e) the matters referred to in subsection 75(2) so far as they are relevant
Before I move to consider s. 75(2) factors, I should address an argument put strongly by the Husband that his initial contribution of around $35,000 to the purchase of the former matrimonial home, (put by him as being around 29% of the acquisition price), should be recognised as a spring board contribution of extreme significance.
There is no doubt it was a significant contribution to the parties and the family as whole, however in my view I have to look at the total contributions by both parties during cohabitation and post-separation. There are many contributions by them in this case.
It is common ground that they cohabited for over 16 years, the home was purchased very early in the marriage, that Ms E was born in the same year and she has disabilities, that [X] was born in 2001 with severe disabilities, [Y] was born in 2007 with disabilities and [Z] in 2012 with autism. The mother was the primary carer who devoted to herself to the family and household and made significant contributions pursuant to s.79(4)(b) and 79(4)(c), (being careful to avoid “double dipping”).
The High Court in Mallet v Mallet, (1984) FLC 91507 per Gibbs CJ, Mason, Wilson JJ were clear in their statement that the contribution made by a wife as a home maker and parent should be recognised not in a token way but in a substantial way.
I also note what Fogarty, J said at p.82, 379 in Waters & Jurek (1995) FLC 92-635:
“In most marriages, there is a division of roles, duties and responsibilities between the parties. As part of their union, the parties choose to live in a way which will advance their interests — as individuals and as a partnership. The parties make different contributions to the marriage, which the law recognises cannot simply be assessed in monetary terms or to the extent that they have financial consequences.
I note further the Full Court in Fields & Smith (2015) FLC 93-638 at page 80,153 paragraph 168 said the following:
“However, the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the court to weight all of the contributions of all types prescribed by s 79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post-separation period.”
I note post separation from June 2013 to the trial date, the wife continued in her role as primary carer for over 5 years. This is a further significant contribution, particularly given the needs of the children and that overnight time with the father did not commence until late 2015 or early 2016.
The husband made particular contributions through his $35,000 deposit for the home and working industriously throughout cohabitation. The wife as primary carer or homemaker, over 20 years (cohabitation and post-separation) made similar off-setting contributions in a very demanding environment with four disabled children. Overall, it is my assessment that ultimately the parties’ contributions are very similar.
Section 75(2) the matter to be taken into account are
(a) the age and state of health of each of the parties
The applicant wife is aged 44 years and appears to have good health for her age. The respondent husband is aged 50 years and complained of some small health issues but produced no evidence to satisfy the court that his health is a barrier to him working. I note that in his affidavit sworn 12 April, 2018 he deposes to good health.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The wife has no employment training or employable skills save for home making; (her experience in caring for the children and household since coming to Australia). The evidence discloses that [X] will never be independent such are the severity of his disabilities and the other three children have disabilities with other ongoing demands.
The husband has extensive experience as a courier and factory worker. His Financial Statement filed 22 August, 2018 discloses he is currently employed as a factory worker earning gross weekly income of $2,228. He is older than the wife by six years and if he were to retire at 65 or 67, he has a working life of some 15-17 years left. When asked by me about retirement age, he said… “I have to work hard to 65”.
I note that the Full Court said in Clauson & Clauson [1995] FLC 92-595 at page 81,911… “It has long been recognised that in most cases, the most valuable “asset” which a party can take out of a marriage is a substantial, reliable income earning capacity”… When considering that statement in the context of this case, I note that the husband in his abovementioned Financial Statement discloses he has worked for Employers for over 24 years and earns over $115,000 gross per annum.
It is noted that the wife’s Financial Statement filed 24 August, 2018 disclosed her income is $1,056 a week which is made up of government benefits and $359 per week child support. I note in the Husband’s written submissions in reply he says… “the Husband’s case is not put on the basis that the Wife ought to be engaging in paid employment.”
In Waters & Jurek (above) Fogarty J said at p.82, 379:
“On separation, the partnership, and the division of roles and responsibilities which it produced, come to an end. Individually, the parties are left largely in the personal situations that the marriage has assigned to them. However, the world outside the marriage does not recognise some of the activities that within the marriage used to be regarded as valuable contributions. Homemaker contributions, for example, are no longer financially equal to those of the breadwinner. Post-separation, the party who had assumed the less financially rewarded responsibilities of the marriage is at an immediate disadvantage. Yet that party often cannot simply turn to more financially rewarding activities. Often, opportunities to do so are no longer open, or, if they are, time is required before they can be accessed and acted upon.
When the marriage ends, especially where that marriage has been a long one, one cannot separate the parties as individuals from the people they became in the context of the marriage relationship, and the allocation of roles, duties and responsibilities which it entailed. In some cases, an adjustment is called for because it would be unjust for the roles and activities of a party, which were recognised until separation, and which largely determined or influenced the personal development of that party and the arrangements between the parties, to suddenly count for little, while those of the other party, which were of equal significance during the marriage, to now have a far greater financial impact outside the home — in circumstances where it was the joint decision of the parties that that be the way in which they would conduct their affairs, and where that decision was made in the expectation of the relationship continuing.”
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
The mother pursuant to the earlier consent parenting orders has the primary care of three youngest children of the marriage, [X] who is 17 years, [Y] who is 11 years and [Z] who is 6 years. I also note that the husband has a caring role with the children, being 5 nights out of 21, as well as limited holiday periods under those consent parenting orders. This will provide the wife with some relief but she will have the major ongoing burden of caring for these disabled children in the future.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
This is detailed in their Financial Statements and Affidavits.
(ii) a child or another person that the party has a duty to maintain
The parties have a duty and commitment that is clear in terms of the financial needs of these children and is set out in their Financial Statements and other evidence.
(e) the responsibilities of either party to support any other person
Ms E although aged 21 years is still partially dependent on her mother’s care and support and she may become financially independent or undertake some work for reward in the future but it was not clear on the evidence to what degree. It is unlikely in my view that she will be wholly independent in the future, particularly given the report and evidence of Dr G. Her report is annexure L2 and the documents at L3 were reviewed by her. I did not put any weight on those documents given the authors were not called.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
The wife historically has been dependent on government benefits paid to her through the taxpayers of Australia. This will be an ongoing need and benefit she will receive as set out in her Financial Statement. The husband receives no pension, allowance or benefit from the Commonwealth or State.
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
The wife has no interest in any superannuation fund whereas the husband discloses in his Financial Statement he has an accumulation interest with Super Fund D in the amount of $136,033.42.
and the rate of any such pension, allowance or benefit being paid to either party;
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
These people have never enjoyed a high standard of living given their need to support their children and meagre lifestyle.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
Not relevant. Neither party sought spousal maintenance.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant;
Not relevant.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
Not relevant. Neither party sought spousal maintenance.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
Not relevant. Neither party sought spousal maintenance.
(l) the need to protect a party who wishes to continue that party's role as a parent;
It is clear from the way the mother ran her case she wants to continue to undertake a significant role as a parent and primary carer of these children, particularly given their special needs. This desire to protect and promote her childrens welfare should be acknowledged.
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;
Not relevant.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
I propose to make orders that in my view will be just and equitable under the legislation.
(ii) vested bankruptcy property in relation to a bankrupt party;
Not relevant.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
Not relevant.
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
Not relevant.
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
Not relevant.
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
Not relevant.
(na) 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 father currently pays $359 per week for the three youngest children. Adult Child Maintenance was not sought for Ms E and Child Support for the child [X] should cease in November this year when he turns 18. I expect that the husband will continue to pay Child Support for the other two children until they turn 18 years which is 6 years for [Y] and under 12 years for [Z]. Overtime the disparity between the parties’ income will expand in the husband’s favour, on the balance of probabilities, as the children turn 18 years.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
In my view it is quite clear that the justice of this case requires me to take into account the fact that there are four dependent disabled children from the relationship, with extreme disabilities in relation to the child [X]. On day two of the trial I explored with the wife as best I could, the future needs of the children. She advised me that Ms E is attending TAFE two days a week and doing some form of … course. She would expect her and possibly [Y] to be financially independent to some degree, but probably only earning a low income. She also told me that [X] will always be fully dependent and will finish school at the end of 2019. In relation to [Z], she said the degree of disability is not as great as [X]’s but she is too young to fully assess her future needs, save she appears to have a mild form of Autism. On any view these are not four children from a marriage that will all be financially independent in the future. It is also clear that [X] will be significantly dependant on the mother into the future and the others may have the ability to contribute to their own needs but to what degree it is unclear, given their age and that the fact that the three youngest are all still at school. The report and evidence of Dr G was helpful and I rely on same, subject to the concessions made in her cross-examination.
Another issue in this case is the wife sough to include some “addbacks” in the pool of divisible assets. I note what the Full Court said in Vass & Vass [2015] Fam CAFC 51 at page 25 paragraph 138 & 139 as follows:
“There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108 - is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.
The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of “add back”, proper consideration must be given to existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.”
Counsel for the Wife sought to include 3 additional addbacks in the pool of divisible assets as follows:
a)The monies the husband transferred overseas during cohabitation in the total sum of $91,798 which is conceded by the husband;
b)The monies in the Husband’s control for around 12 months prior to the separation in the total sum of $60,500 that he dissipated and the husband concedes much of this was spent on travel; and
c)The sum of $5,146 retained by the Husband on or about separation that was a government benefit intended for the children.
I shall firstly deal with the $91,800 approximately that the Husband transferred overseas.
I note the following exchange between the wife’s counsel and the husband:
“In relation to you – to your spending and the money that you’re sending out of your Westpac account. You agree, don’t you, that there’s a sum of about $91,000 that goes to your mum – over to Country J?---Yes.
That you say goes towards your mother?---Yes.
All right. And that occurs between 2007 and 2009?---Yes.
Yes. And your mum passes away in 2010?---Yes.
So, there’s no more expenses or anything required for her after 2010?---After – yes.
Correct?---Unless there’s some – some debt maybe – some she got – I paid off.
Well, you’re not responsible for your mother’s debts, are you?---It’s something that allowed her to have medication – whatever they do.
What’s that – sorry?---And – medication of her – whatever - - -
Medication?---They ask me for her for ..... whatever there.
I’m talking about once she passes?---Yes
You don’t have to send her money anymore, do you?---If I’ve been asked that someone already paid for her for medical, then I have to pay him.
Okay. All right. Well, how long do you say – do you say that there’s any further payments that you make to people in Country J, over and above the 91,000 that you’ve already sent?---That just have a few things that I can’t remember but not too many.
And what are the amounts of those?---I can’t remember how much they are but if, you know, there will be – only few amount of money left that I pay – maybe.
Are we talking about hundreds of dollars or thousands of dollars? ---To be honest, you know, could be very few amount of thousands – not too many.”
The Husband in his written submissions dated 8 October, 2018 at page 2 paragraph 3.1 argued as follows:
“As held by the High Court in Stanford & Stanford (2012) 247 CLD 108 (at 37), the first task of a court exercising jurisdiction under section 79 of the Act is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.’ The funds accessed by the Husband do not form part of the existing legal and equitable interests of the parties in any property.”
It is my view that Stanford has to be read with the other authorities in this area such as Vass above. I note the Full Court in Trevi v Trevi [2018] FamCAFC 173 addressed this same quote at page 8 where they said at paragraphs 46 and 47 as follows:
“In Stanford v Stanford, the High Court emphasised as fundamental that a consideration of whether it is just and equitable to make a property settlement order beings by “identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the partiers in the property.”
The essence of a claim for addbacks is that the asserted sum/s should be added to the value of the existing property interests of the parties and, subsequently to the assessment of contributions, credited to the spending party as part of the value of their assessed entitlements. Doing so does not offend what was emphasised by the High Court. Adding back does not seek to create property interests that do not exist. Rather, doing so emphasised that satisfying the respective requirements of ss 79(2) and (4) of the Act to do justice and equity can require an “accounting” or “balance sheet” exercise for the purposes of s 79(2) and (4), so as to include the value of the parties’ existing interests in property, and to credit the value of same against the assessed entitlement of the dissipating or spending party.”
Whilst the husband argued that these monies were accessed 10 years prior to trial, for the benefit of his mother with the full consent and knowledge of the wife, with no benefit to him as referred to in the case of Townsend (1995) FLC 92-569, I do not accept that argument. In evidence the wife said she was told by the husband it was around $500 monthly when in fact it averaged $3,800 approximately per month for 2 years between 2007 and 2009. He never disclosed before separation that it totalled over $91,000. She discovered this post-separation. It is clear that he controlled their financial affairs and without notice and full disclosure to his wife of the actual sum of the payments, he unilaterally forwarded these monies overseas. He provided his mother a financial benefit from his interest in the parties’ assets. It was his evidence that it was culturally and emotionally something he felt he had to do and therefore, it follows that he had a cultural and emotional benefit from these payments. The evidence disclosed these monies could have clearly benefitted the wife and the family given the financial hardship they endured during cohabitation, which was clear from the wife’s evidence.
I do not accept the husband’s evidence that the wife was the one that encouraged him not to spend monies and believe that as the financial controller for the family he had a significant role in how monies were expended and he was quite content for the wife and children to live such a frugal lifestyle. In my view, the husband had a primary or higher responsibility to fully and properly support his wife and children before he should have considered applying these monies for the benefit of his mother. It is clear that during cohabitation the husband used monies as he saw fit without significant reference to any view of the wife or her needs or the needs of his family. It is not suggested these monies were sent overseas to defeat any future potential family law claim or with malevolent intent by the husband.
I note at paragraph 3.5 in his written submissions the husband refers to the test in Kowaliw v Kowaliw (1981) FLC 91-092. This is a well-known approach and was referred to in Trevi above and AJO v GRO (2005) FLC 93-218 in a detailed form where the Court said at paragraph 30… “to date, three clear categories of cases have emerged where the court has determined appropriately to notionally add back to the pool of assets, that is, assets that no longer exist.” They are in summary:
a)Where the parties have expended money on legal fees, (which was not raised as a controversial issue in this case); or
b)Where there has been a premature distribution of matrimonial assets; or
c)Where one of the parties has embarked on a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets and/or where one has acted recklessly, neglectfully or wantonly with the overall effect that the value of the assets has been reduced or minimised (see Kowaliw above at p.76,644 and 76,645)
The Full Court in AJO v GRO then went on to cite the Full Court in Townsend and Townsend (1995) FLC 92-569 where Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
“In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the … licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.”
In my view the Husband caused a premature distribution for his emotional and cultural benefit and he also could be said to have acted recklessly, or negligently or wantonly in forwarding overtime such a large sum of money for his mother’s support. He did so in an opaque style that required full disclosure to and consent from the wife. The wife by caring for the children freed the husband to work and earn this money and her contribution cannot be ignored and it would not be just and equitable to ignore this significant total amount of $91,800 approximately, that he sent overseas during cohabitation.
As at May, 2012 the bank account the husband controlled had a balance of $67,238 and of $2,735 as at 28 June 2013, soon after separation. This was another issue in this case where the evidence disclosed that over a period of some months prior to separation, the husband withdrew from their bank account, at least $60,500. He said he went to Adelaide and Sydney as well as spending $10-$15,000 on a trip to Country M, $25,000 on a holiday to Country N and about $10-$15,000 on a holiday to the Country O all just prior to or after separation and all for his own benefit. It is also my view that the Full Court test in Townsend accurately described his behaviour in relation to these monies in that he did distribute prematurely for his benefit an asset to which the wife had a legitimate interest and claim. He should have retained those $45,000 to $55,000, (say $50,000) that he spent for his sole benefit that otherwise could have been used for the benefit of the family. He appeared to do this behind the back of the wife without full disclosure or her consent. I have reduced the sum from the claimed $60,500 as he did not use all of this clearly for his own sole benefit.
As to the $5,146 he retained post-separation from the payment of Government benefits, the evidence disclosed that both parents received Government payments post-separation and it was not clear how they were expended or used. Therefore, I will take that no further, particularly given the husband paid the household rates post-separation.
(p) the terms of any financial agreement that is binding on the parties to the marriage
Not relevant.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Not relevant.
Section 79(4)(f) any other order made under this Act affecting a party to the marriage or a child of the marriage;
The only other order is the consent parenting orders set out from paragraph 9, page 2 of this judgment.
Section 79(4)(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.
This has been discussed earlier when addressing the section 75(2) matters.
Conclusion
I have taken a global approach to the pool of assets in this case, which includes the husband’s superannuation. In the most unusual circumstances of this case where the parents have four disabled children (which I shall discuss further below), I have treated superannuation like any other asset. I note it was an agreed figure and no significant evidence was provided detailing post-separation contributions as against added sums through interest accumulation, or insurance costs.
In Fleck v Fleck [2014] FCCA 2595 Her Honour determined it was appropriate not to make a splitting order and treated the parties’ superannuation interests as she would any other asset. In so doing she reviewed the authorities in this area starting with D v D [2006] FamFA 199 where the Full Court upheld a decision in which the wife retained the family home while the husband received nearly all of his entitlement in his superannuation where the Full Court said… “the decision about the mix of assets was a discretionary one.”
She also cited Bucknell v Bucknell [2009] FamCAFC 177 where the wife received the bulk of the realisable assets and the husband the superannuation asset with a small debt. At paragraph 23 of their judgment the Full Court said… “an order in which one party receives no immediately realisable funds is uncommon. But of itself, that does not indicate any error. In our view, the result is respective to the circumstances of the case…”
I have referred to his income earning capacity and the case of Clauson earlier in this judgment (see paragraph 35, 36, 37 and 38 above), and it is clear that when compared to the wife, he is free to work and exercise this capacity for some years into the future. In cross-examination he conceded he often worked overtime and for one year worked in two jobs, the second being a courier. He also conceded he has a… “good future earning capacity to make money”… he has a stable job and he could save a deposit to buy a property.
This opportunity is not available to the wife to develop a substantial and reliable wage or salary, given her duty and responsibilities in caring for their disabled children. In my judgment, it is just and equitable in the circumstances of this very unusual case to treat superannuation as being similar to the other assets the parties have an interest in.
I note he submits at paragraph 22 of his written submissions that… “the husband accepts and agrees that it would be preferable for the wife and children to remain living in the former matrimonial home if this can occur in the context of a property settlement that is just and equitable for the parties.”
In the same document at paragraph 15 the husband says the following:
…“the husband acknowledges that his earning capacity exceeds that of the wife and that she has the ongoing care of the parties’ children, who have special needs. The husband’s case is not put on the basis that the wife ought to be engaging in paid employment.”
On the second day of the trial Dr G gave evidence. She adopted her affidavit sworn 27 July 2018, which annexed her expert report which she authored with the purpose… “to provide an opinion on Ms E, [X], [Y], and [Z]’s level of impairment as a result of their autism and other medical conditions, to discuss their present and long term needs, and to provide an opinion regarding the impact that the sale of the family home may have on the children.”
She is employed by … University as a Senior Lecturer in Educational Psychology and Applied Behaviour Analysis. She said she had been working in the field of behavioural psychologies for about 15 years, confirming she was a board certified behavioural analysist and was conferred with a PHD in Behavioural Analysis from … University in 2012.
Whilst she conceded in cross-examination that she did not know how much time the children spent in the care of the father and that the information about the children’s home lives only came from speaking to the mother and observing the children. She also agreed that “a safe home system” can be replicated elsewhere. She explained in cross-examination that the report was “a snapshot in time” and it was difficult to do a report that fully understood the degree that each child’s diagnosis effects their functional independence and her report was not a full therapeutic relationship with the family. However, she went onto say in evidence that she could not predict whether Ms E could live independently in the future but observed that she has certain skill deficits that may prevent her from living independently, including recognising safety hazards, time management, navigating the community independently and engaging with unfamiliar people.
She also agreed that the children other than [X] may find employment and live more independently, but it was hard to make predictions in relation to [Y] and [Z] because of their young ages.
I note at page 37 of the report in relation to [X] the expert states that with his intellectual disability and autism spectrum disorder his understanding of what is happening may be limited and…“his ability to communicate with sign language or with the use of cards is very limited at the moment. This is giving him very little choice over his life.” He requires constant supervision and assistance. I found this expert’s report helpful overall, and note her opinion at page 13 that the “…best option for the family is to remain in their current home.”
I now turn to my assessment of the divisible pool:
a)The former matrimonial home - $585,000;
b)The wife’s motor vehicle - $1,300;
c)The husband’s motor vehicle - $11,000;
d)The husband’s superannuation - $136,033;
e)The addback of monies sent overseas by the husband - $91,800(c)
f)Addback of the monies spent by the husband on holidays for himself around the period of separation - $50,000(c)
Total: 875,133
In my assessment of this case the most significant issue is the wife’s care of and the needs of the disabled children in the foreseeable future. The contributions are similar but given the need for her and the children to have appropriate accommodation, given her future financial needs and given their disparity of income, an adjustment just under 30% is appropriate, providing her with about 64% and the husband about 36% of the pool, which is just and equitable in these uncommon circumstances.
The husband will retain his motor vehicle, superannuation and be responsible for the addbacks totalling $141,800(c). He is to be paid $27,000 by the wife. This totals $315,833. She will retain the home and her car and pay the husband $27,000, which is a net total of $559,300.
It should also be noted that the husband has the capacity to rebuild his finances in the next 15 or so years that in all probability will not be available to the wife.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Date: 10 May 2019
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