NOVAK & NOVAK
[2019] FCCA 147
•1 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NOVAK & NOVAK | [2019] FCCA 147 |
| Catchwords: FAMILY LAW – Property – just and equitable to make property orders – notional add back of sum of money spent on legal fees – adjustment to the Husband for initial contribution – contributions during relationship assessed to be equal – adjustment to the Wife pursuant to s.75(2) factors. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 75, 79, 90XT, 90XZA Federal Circuit Court Rules 2001 (Cth), r.21.15 |
| Cases cited: Beklar & Beklar [2013] FamCA 327 Bell & Nahos [2016] FamCAFC 244 Eddington & Eddington (No 2) (2007) FLC 93-349 Ulster & Viney [2016] FamCAFC 133 |
| Applicant: | MR NOVAK |
| Respondent: | MS NOVAK |
| File Number: | MLC 11080 of 2016 |
| Judgment of: | Judge C.E. Kirton QC |
| Hearing dates: | 7 and 8 March 2018 |
| Date of Last Submission: | 8 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hoult |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondent: | Ms Goldthorp |
| Solicitors for the Respondent: | Barbayannis Lawyers Pty Ltd |
ORDERS
Parenting
All previous parenting orders be discharged.
The Applicant (Husband) and the Respondent (Wife) have equal shared parental responsibility for the children [X], born … 2009, [Y], born … 2010 and [Z], born … 2012 (Children).
The Children live with the Wife.
The Children’s Time with the Husband
The Children spend time and communicate with the Husband as follows:
(a)During school term each alternate week from the conclusion of school or 3.30 pm Thursday until the commencement of school or 9.00 am Tuesday, commencing on 7 February 2019.
(b)For half of each of the school term holidays by agreement and failing agreement, the first half from the conclusion of school or 3.30 pm on the last day of school term until 5.00 pm on the middle Saturday of the school term holidays.
(c)During the long summer holidays on a week about basis with the Wife to have the first week, the Husband the second week and alternating each week thereafter.
(d)From 5.00 pm the day preceding Father’s Day until the commencement of school on the Monday following Father’s Day each year.
(e)From 4.00 pm Christmas Day until 6.00 pm Boxing Day in 2019 and each alternate year thereafter.
(f)From 10.00 am Christmas Eve until 4.00 pm Christmas Day in 2020 and in each alternate year thereafter.
(g)As may otherwise be agreed by the Husband and Wife in writing.
The Husband’s time with the Children be suspended as follows:
(a)In the event that Mother’s Day falls on the Husband’s weekend, from 5.00 pm on the day preceding Mother’s Day until the commencement of school the Monday following Mother’s Day each year.
(b)From 10.00 am Christmas Eve until 4.00 pm Christmas Day in 2019 and in each alternate year thereafter.
(c)From 4.00 pm Christmas Day until 6.00 pm Boxing Day in 2020 and each alternate year thereafter.
In the event that either parent proposes to have a block of two weeks with the Children during the long summer holidays, they shall provide the other parent with 30 days written notice and the other parent shall be entitled to a two week block period with the Children during the same holiday period.
In the event the Children spend an extended school holiday period with the Husband in accordance with Orders 4(b) and (c) and Order 6, the Husband’s time with the Children pursuant to Order 4(a) is suspended during the relevant school holiday period and recommences at the commencement of the next school term as if the holiday period had not intervened.
Save for changeovers that occur at the Children’s school, all changeovers occur at the Wife’s home.
Passports
No later than seven months prior to the expiration of each of the Children’s Australian passports, the Husband and Wife shall sign all documents and do all acts and things required to facilitate the renewal of the passports and the Wife be permitted to retain the Children’s Australian passports.
The Husband and Wife sign all documents and do all things required to apply for and renew British passports for the Children and the Wife be permitted to retain the Children’s British passports.
International Travel
The Husband and the Wife be permitted to travel internationally (International Travel) with the Children:
(a)For up to four weeks each year provided that at least 60 days prior to the proposed travel they:
(i) Advise the other parent in writing; and
(ii) Provide to the other parent a comprehensive itinerary.
(b)At such other times as may be agreed in writing between the parties.
In the event that the International Travel interferes with the other parent’s time with the Children, make up time be arranged with the non-travelling parent either before or after the travel dates.
Parents to provide information
Each parent forthwith keep the other informed of any illness, injury or accident suffered by any of the Children requiring medical treatment, and provide the other parent with details of the child’s treatment and medical practitioner and authorise such medical professional to communicate with the other parent.
Restraints on the Parents
Both parents be and are hereby restrained from:
(a)Discussing these proceedings with or in the presence or hearing of the Children or allowing any other person to do so.
(b)Denigrating the other parent or member of the parent’s family or household to or in the presence or hearing of the Children or allowing any other person to do so.
Property
Payment of Moneys
The Husband pay to the Wife the sum of $377,832 (Payment) on or before 60 days from the date of these orders (Due Date).
Contemporaneously with the Payment:
(a)The Wife do all acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situated at and known as Property A in the State of Victoria, being the whole of the land more particularly described in Certificate of Title volume … folio … (Property A Property).
(b)The Husband:
(i)Discharge mortgage registered number … to Westpac Banking Corporation (Mortgage);
(ii) Refinance into his sole name the Bank of Melbourne:
A)Residential loan … Account Number …; and
B)Portfolio loan BSB … Account Number …; and
(iii)Indemnify the Wife against all payments and liabilities pursuant to the Mortgage and all apportionable rates, taxes and outgoings with respect to the Property A Property of whatsoever nature and kind.
In the event that the whole of the Payment has not been made by the Due Date, then the Husband sign all documents and do all things necessary to transfer to the Wife the Property A Property to be held on trust for sale and the Property A Property be forthwith sold altogether out of court (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 trust, transfer and the Sale.
(b)Secondly, to discharge the Mortgage and any other encumbrance affecting the Property A Property.
(c)Thirdly, so much of the Payment as is then outstanding to the Wife together with interest thereon at the rate prescribed by the Family Law Rules2004 (Cth) adjusted monthly from the Due Date.
(d)Fourthly, the balance to the Husband.
Pending the Payment or completion of the Sale:
(a)The Husband have the sole right to occupy the Property A Property and during such right of occupation the Husband pay all instalments pursuant to the Mortgage and all rates and taxes and like apportionable outgoings of the Property A Property as they fall due.
(b)The parties hold their respective interests in the Property A property upon trust pursuant to these Orders.
(c)Neither party encumber the Property A Property without the consent in writing of the other party.
Liberty be reserved to either party to apply with respect to the terms, conditions and execution of the Sale.
Superannuation
Having been accorded procedural fairness in relation to the making of these Orders, Orders 20 to 24 of these Orders bind the Trustee of the Super Fund 1 Master Fund member number … (Fund).
Orders 20 to 24 inclusive have effect from the operative date.
The operative date is the fourth business day after the day of service of a certified copy of the final sealed and signed orders on the Trustee of the Fund.
The Court allocate, pursuant to s.90XT(4) of the Family Law Act 1975 (Cth) (Act) a base amount of $196,622 to the Wife out of the Husband’s interest in the Fund.
In accordance with s.90XT(1)(a) of the Act, whenever a splittable payment becomes payable to the Husband, from his interest in the Fund, the Wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using a base amount of $196,622 and there be a corresponding reduction in the entitlement that the Husband would have had but for these Orders.
Until the happening of any of the following:
(a)The establishment of a separate superannuation interest in the name of the Wife in the Fund; or
(b)The transfer or rolling over into another superannuation fund of the payment split created by Order 23 of these Orders (Payment Split); or
(c)The Husband satisfies a condition of release and the Wife is paid the Payment Split; or
(d)The Wife exercises a waiver of her rights within the meaning of s.90XZA of the Act in relation to the Payment Split,
the Husband be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any act or thing which would render any part of his interest in the Fund a “not splittable payment” within the meaning of reg.12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth).
Miscellaneous Property Matters
Unless otherwise specified in these Orders, and save for the purpose of enforcing any monies due under these Orders:
(a)Each party be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders.
(b)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) in the possession of such party as at the date of these Orders.
(c)Monies standing to the credit of the parties in any personal bank account as at the date of these Orders shall become the sole property of the party in whose name that account is held.
(d)All insurance policies remain the sole property of the named owner.
(e)Each party shall be solely responsible for the payment of any debt accrued in their respective name as at the date of these Orders.
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
(g)Save as provided herein, each party renounces any claims they may have to superannuation or employment benefits or insurance benefits belonging to or earned by the other.
All extant applications are otherwise dismissed.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Novak & Novak is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11080 of 2016
| MR NOVAK |
Applicant
and
| MS NOVAK |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant (Husband) and the Respondent (Wife) are the parents of [X] ([X]), born … 2009, [Y] ([Y]), born … 2010 and [Z] ([Z]), born … 2012 (Children).
Issues in Dispute
The following issues were in dispute in the parenting proceedings:
a)Whether the Children should live with the parents on a shared care week about basis.
b)If the Children do not live with the parents on a shared care week about basis, the time the Children should spend with the parent with whom they do not live.
c)The times that the Children spend with each of their parents between Christmas Eve and Boxing Day each year.
d)What orders, if any should be made regulating the parties’ international travel with the Children.
The following issues were in dispute in the property proceedings:
a)The weight to be attributed to the contributions of each party at the commencement of the relationship and during the relationship.
b)Whether there should be an adjustment in favour of either party pursuant to any of the factors relevant to s.79(4) and s.75(2) of the Family Law Act 1975 (Cth) (Act).
c)Whether the Husband’s superannuation accumulated prior to the commencement of the relationship should be taken into account in relation to a superannuation splitting order.
Synopsis
In relation to parenting I have determined that it is in the Children’s best interests that:
a)The Husband and the Wife have equal shared parental responsibility.
b)The Children live with the Wife.
c)The Children spend time with the Husband:
i)During the school term each alternate week from the conclusion of school or 3.30 pm Thursday until the commencement of school or 9.00 am Tuesday.
ii)For half of each of the school term holidays by agreement and failing agreement, the first half from the conclusion of school or 3.30 pm on the last day of school term until 5.00 pm on the middle Saturday of the school term holidays.
iii)During the long summer holidays on a week about basis with the Wife to have the first week, the Husband the second week and alternating each week thereafter.
d)The Children spend time with their parents for specified times at Christmas, on Mother’s Day and Father’s Day.
e)The Children be permitted to travel internationally with each of their parents for up to four weeks each year.
In relation to property I have determined that:
a)The Husband pay to the Wife the sum of $377,832 within 60 days.
b)The Wife transfer her interest in the former matrimonial home at Property A (Property A Property) to the Husband.
c)There be an equalisation of the Husband’s superannuation entitlement which will result in a payment from the Husband’s fund to the Wife.
The reasons for my determination follow.
Background
The Husband was born in Australia on … 1971 and is aged 47. The Wife was born in the United Kingdom on … 1978 and is aged 40.
The parties commenced cohabitation in London, United Kingdom in … 2007 and married in United Kingdom on … 2008.
[X] was born on … 2009 and is now aged 9.
The parties moved to Australia in … 2009.
[Y] was born on … 2010 and is aged 8 and [Z] was born on … 2012 and is now aged 6.
The parties separated under one roof in April 2016 whilst living at the Property A Property.
In … 2016 the parties purchased a property at Property B (Property B Property) and registered it in the Wife’s name.
On 30 October 2016 the Wife and the Children moved out of the Property A Property and into the Property B Property. The Husband remained living at the Property A Property.
Procedural History
The Husband commenced these proceedings by filing an Initiating Application on 15 November 2016 (Initiating Application). The Initiating Application sought interim and final parenting orders. The interim orders sought were that:
a)The parties retain equal shared parental responsibility for the Children.
b)The Children live with the parties on a shared care week about basis commencing after school Monday and concluding at the commencement of school the following Monday.
c)The Children spend half of all school term holidays with the parties.
d)Each year the Children spend time with:
i)The Wife from 12 noon on 24 December until 12 noon on 25 December; and
ii)The Husband from 12 noon 25 December until 11.00 am on 26 December.
e)Each year the Children spend time with:
i)The Wife from 12 noon on Easter Saturday until 11.00 am on Easter Sunday; and
ii)The Husband from 12 noon on Easter Sunday (sic) until 11.00 am on Easter Monday.
f)Each party be permitted to attend the Children’s sporting activities, school functions, special occasions and family celebrations.
g)The Children be at liberty to telephone and/or Skype the parent with whom they are not living at all reasonable times.
h)If either parent wishes to change the Children’s living arrangements, they be required to provide two week’s written notice in advance of their request and the parent receiving the request shall not unreasonably withhold their consent to such change.
i)If either party wishes to take the Children on an extended holiday, that parent is to provide to the other parent four weeks’ notice in writing and to provide a comprehensive itinerary for the proposed trip and the parent receiving such request shall not unreasonably withhold their consent.
j)The parties be restrained from removing the Children from the State of Victoria or the Commonwealth of Australia without the written permission of the other parent.
k)The parties be restrained from making disparaging or abusive comments in relation to the other parent in the presence or hearing of the Children or any of them.
l)Each parent keep the other fully appraised of any medical problems which may arise from time to time with the Children.
m)The parties be restrained from changing the enrolment or the attendance of [Z] at … Early Learning Centre (… ELC) until the end of school year 2017.
n)In the event that either parent is unable to transport the Children to or from school whilst they are with that parent, they be at liberty to call upon the Children’s paternal grandparents to assist in such transportation but not any other person, without that other party’s written consent.
o)The parties attend upon an agreed family consultant psychologist along with the Children for the purpose of obtaining a family report as to the parenting arrangements for the Children which best promote their interests.
The final orders sought in the Initiating Application were the same as the interim orders sought, save for the orders seeking a family report.
In the Response to Initiating Application, filed 1 December 2016 (Response) the Wife sought both property and parenting orders. The interim orders sought in the Response included orders that:
a)The parties have equal shared parental responsibility for the Children.
b)The Children live with the Wife.
c)The Children spend time with the Husband as follows:
i)Each alternative weekend from the conclusion of childcare/school or 3.30 pm Friday until 5.00 pm Sunday;
ii)Each Wednesday from the conclusion of childcare/school or 3.30 pm until 7.00 pm;
iii)For half of each of the school term holidays by agreement and failing agreement, the first half from the conclusion of school on the last day of school term until 5.00 pm on the middle Saturday on the proviso that the Husband is on annual leave and is in substantial attendance;
iv)For two weeks during the long summer holidays each year provided the Husband is on annual leave and is in substantial attendance;
v)From 5.00 pm the day preceding Father’s Day until 5.00 pm Father’s Day each year;
vi)From 4.00 pm Christmas Day until 6.00 pm Boxing Day in 2016 and in each alternative year thereafter and from 10.00am Christmas Eve until 4.00 pm Christmas Day in 2017 and each alternative year thereafter; and
vii)By further agreement.
d)In the event the Children are in the Husband’s care on the following occasions the Children spend time with the Wife as follows:
i)From 5.00 pm on the day preceding Mother’s Day until 5.00pm Mother’s Day;
ii)From 10.00 am Christmas Eve until 4.00 pm Christmas Day in 2016 and each alternative year thereafter; and
iii)From 4.00 pm Christmas Day until 6.00 pm Boxing Day in 2017 and in each alternative year thereafter.
e)In the event the Husband is able to secure annual leave and the Children spend extended holiday periods with the Husband, the alternative weekend and midweek periods be suspended during all school holidays and recommence in the same cycle in the next school term as if the holiday period had not intervened.
f)Apart from changeovers that occur at the Children’s childcare/school, all changeovers occur at the Wife’s home.
g)In the event that either parent wishes to take the Children overseas or interstate on an extended holiday, that parent is to provide the other parent four weeks’ notice in writing and provide a comprehensive itinerary for the proposed trip and the parent receiving such request shall not unreasonably withhold their consent.
h)The Wife be permitted to travel to the United Kingdom for up to 4 weeks each year with the Children, provided she advises the Husband in writing at least 60 days prior to the proposed travel and provide a comprehensive itinerary to the Husband.
i)Upon the expiration of each of the Children’s passports, the Husband and the Wife shall sign all documents and do all things required to facilitate the renewal of the passports.
j)Each parent keep the other fully appraised of any medical problems which may arise from time to time with any of the Children.
k)The Wife be entitled to enrol [Z] at the Children’s Centre in Suburb C for four year old kindergarten to commence in 2017 and the Husband sign all documents and do all acts and things required to facilitate the enrolment.
l)The Husband pay to the Wife the sum of $300 per week by way of periodic spousal maintenance.
The final parenting orders sought in the Response were the same as the interim orders sought, save for the orders in relation to [Z]’s proposed enrolment at the Children’s Centre in Suburb C.
In the Response the Wife sought a final property settlement pursuant to s.79 of the Act. The Wife also sought an order that the Husband pay lump sum or periodic spousal maintenance and otherwise sought to be excused from particularising the orders she sought until the Husband made disclosure of his financial position.
On 20 December 2016 Judge Hartnett adjourned all extant applications to 20 March 2017 and also made interim orders by consent. These orders may be summarised as follows:
a)The Husband and Wife have equal shared responsibility for the Children.
b)The Children live with the Wife.
c)The Children live with the Husband as follows:
i)During school term, each alternative weekend from the conclusion of Early Learning Centre (ELC)/school or 3.30 pm Friday until 5.00 pm Sunday, commencing 10 February 2017;
ii)During school term, each Wednesday from the conclusion of ELC/school all 3.30 pm until 7.00 pm;
iii)From 3.30 pm on 30 December 2016 until 4.00 pm 1 January to 2017;
iv)From 4.00 pm on 15 January 2017 until 4.00 pm on 29 January 2017, provided the Husband is in substantial attendance;
v)From 2.30 pm on Christmas Day until 6.00 pm on Boxing Day in 2016;
vi)At other times by agreement;
vii)Reasonable telephone/Facebook/Skype times.
d)Save for changeovers that occur at the Children’s ELC/school, all changeovers occur at the Wife’s residence.
e)[Z] be enrolled at … ELC for 2017 on condition that the Husband be personally responsible, subject to the following paragraph, for delivering [Z] to and collecting her from … ELC, and delivering [Z] to the Wife’s care immediately following her collection from … ELC on the days that she is in the Wife’s care.
f)The Husband be at liberty to nominate either his father or his mother and no other person, to deliver and collect [Z] to and from … ELC in the event he is unable due to work/travel commitments and in the event the Husband becomes aware that he is unable to take [Z] to … ELC he will notify the Wife by text by 8.00 pm the preceding day.
g)The parties attend upon Mr D for the purposes of the preparation of a report as to the future care arrangements for the Children with each parent. The cost of the report to be shared equally, with the Husband to pay at first instance and the Wife to reimburse the Husband her half share from her property settlement.
h)The Husband’s costs be reserved.
i)The Husband to file and serve a Reply, answering Affidavit and Financial Statement within 28 days.
The Husband filed a Reply on 21 February 2017 (Reply). In the Reply the Husband sought final property orders which included the following:
a)The Wife pay the Husband $85,000.
b)At the time of the Wife making the payment of $85,000 to the Husband:
i)The Wife transfer all her interest in the Property A Property to the Husband;
ii)The Husband discharge mortgage Number … to Westpac Banking Corporation secured against the Property A Property (Mortgage) and indemnify the Wife against all payments and liabilities pursuant to the Mortgage and all apportionable rates, taxes and outgoings with respect to the Property A Property;
iii)The Wife retain the Property B Property;
iv)The Husband retain Property Unit C1 (Property C1);
v)The Husband retain Property Unit C2 (Property C2);
vi)The Husband do all things and sign all documents as required to transfer to the Wife title and interest in motor vehicle registered number … (Motor Vehicle) and the Wife thereupon pay out the finance contract number … with … Fleet Services applicable to the Motor Vehicle.
c)Each party to retain and relinquish any interest in any superannuation benefits belonging to or earned by the other.
d)The Wife transfer to the Husband her interest in:
i)Life insurance policy number … .
ii)Family Life insurance policy number … .
On 20 March 2017 Judge Hartnett listed the proceeding for final hearing on 7 March 2018 and made trial directions. Judge Hartnett also made interim consent parenting orders. These Orders may be summarised as follows:
a)The orders referred to in paragraphs 20(c)(i) and (ii) be discharged.
b)The Children live with the Husband as follows:
i)During school term each alternative week from the conclusion of ELC/school or 3.30 pm Thursday until the commencement of ELC/school or 9.00 am Monday, commencing on 23 March 2017;
ii)For half of each of the school term holidays by agreement and failing agreement the first half, from the conclusion of ELC/school on the last day of school term until 5.00 pm on the middle Saturday;
iii)From 10.00 am Good Friday until 5.00 pm Easter Saturday in 2017;
iv)During the 2017/2018 long summer holidays as follows:
A. From after school/ELC or 3:30 pm on 22 December 2017 to 10.00 am on 1 January 2018;
B. From 10.00 am on 21 January 2018 to 4.00 pm on 30 January 2018;
v)In the event that the Children are not in the Husband’s care on the Father’s Day weekend, from 10.00 am on Father’s Day until the commencement of ELC/school the following day;
vi)In the event that the Children are in the Husband’s care on the Mother’s Day weekend, the Children’s time with the Husband is suspended from 10.00 am Mother’s Day until the commencement of ELC/school the following day;
vii)The Children’s time with the Husband is suspended in 2017 from 2.30 pm Christmas Day until 6.00 pm Boxing Day, during which time the Children shall be in the Wife’s care;
viii)The Husband and the Wife forthwith enrol and complete a Parenting Orders Program and provide proof of completion to the other party’s lawyer;
ix)In the event that any or all of the Children’s Australian and British passports require renewal, then both parties do all things necessary to renew such passports;
x)The Husband and the Wife do all things to arrange an updated family report by Mr D, at the equal cost of the parties prior to the trial date.
On 20 March 2017 Judge Hartnett also made consent orders in relation to the property proceeding. These orders included orders in relation to the valuation of assets, discovery and an order that the parties attend a mediation.
On 24 November 2017 the proceeding was mentioned at a callover before Chief Judge Alstergren (as his Honour then was). It was ordered that the proceeding be adjourned to the compliance list on 14 February 2018.
On 25 January 2018 a mediation took place with Mr L of Counsel acting as the mediator. The proceeding did not resolve.
On 14 February 2018 the proceeding was mentioned in the compliance list before Chief Judge Alstergren. It was ordered that the proceeding be listed for final hearing before myself on 7 March 2018.
On 20 February 2018 the Wife filed the Affidavit of Mr D (Mr D), which exhibited the family report he prepared dated 16 March 2017 (First Family Report)[1] and the updated family report he prepared, dated 19 January 2018 (Second Family Report)[2] (together Family Reports).
[1] Affidavit of Mr D, filed 20 February 2018, Exhibit “A”, at pp.29-59.
[2] Ibid, at pp.3-28.
The Wife filed an Amended Response to Initiating Application on 21 February 2018 (Amended Response). The Wife sought the following final parenting orders:
a)The Husband and Wife have equal shared parental responsibility for the Children.
b)The Children live with the Wife.
c)The Children spend time and communicate with the Husband:
i)During school term each alternate week from the conclusion of school or 3.30 pm Thursday until the commencement of school or 9.00 am Tuesday;
ii)For half of each of the school term holidays by agreement and failing agreement, the first half from the conclusion of school on the last day of school term until 5.00 pm on the middle Saturday on the proviso that the Husband is on annual leave and is in substantial attendance;
iii)During the long summer holidays on a week about basis with the Wife to have the first week, the Husband to have the second week and alternating each week thereafter;
iv)From 4.00 pm on Christmas Day until 6.00 pm on Boxing Day in 2018 and in each alternative year thereafter;
v)From 10.00 am on Christmas Eve until 4.00 pm on Christmas Day in 2019 and in each alternative year thereafter;
vi)From 5.00 pm the day preceding Father’s Day until the commencement of school on the Monday following Father’s Day each year.
d)In the event the Children are in the Husband’s care on the following occasions the Children spend time with the Wife as follows:
i)From 10.00 am on Christmas Eve until 4.00 pm on Christmas Day in 2018 and in each alternative year thereafter;
ii)From 4.00 pm on Christmas Day until 6.00 pm on Boxing Day in 2019 and each alternative year thereafter;
iii)From 5.00 pm on the day preceding Mother’s Day until the commencement of school the Monday following Mother’s Day each year.
e)In the event that either parent proposes to have a block of two weeks with the Children during the long summer holidays, they provide the other parent with 30 days written notice and the other parent shall be entitled to a two-week block with the Children during the same holiday period.
f)In the event the Husband is able to secure annual leave and the children spend extended school holiday periods with the Husband, the alternative weekend and midweek periods be suspended during all school holidays and recommence in the same cycle in the next school term as if the holiday period had not intervened.
g)Save for changeovers that occur at the children’s school, all changeovers occur at the Wife’s home.
h)The Husband and Wife be permitted to travel internationally with the Children for up to 4 weeks each year provided they advise the other parent in writing at least 60 days prior to the proposed travel and provide a comprehensive itinerary.
i)In the event that the international travel interferes with the other parent’s time with the Children, make up time be arranged either before or after the travel dates.
j)That upon the expiration of each of the Children’s passports, the Husband and Wife shall sign all documents and do all acts and things required to facilitate the renewal of the passports and the Wife be permitted to retain the Children’s passports.
k)The Husband and Wife sign all documents and do all things required to apply for and renew British passports for the Children and the Wife be permitted to retain the passports.
l)In the event that the Husband fails or refuses to renew the Children’s passports, pursuant to s.11(1)(b) of the Passports Act 2005 (Cth) the Wife be permitted to apply for and renew the Children’s Australian passports and Children be permitted to travel internationally without first obtaining the written consent of the Husband.
m)In the event that the Children require visas to enter a country, both parents sign an application for the visas within seven days of receiving a request from the other parent.
n)The parties keep each other advised of any serious medical condition or hospitalisation affecting the Children whilst they are in their respective care.
o)The Husband, his servants and/or agents be restrained by injunction, from denigrating the Wife in the presence or hearing of the Children.
p)If either party refuses to sign any document required to give effect to these Orders, a Registrar of the Court be appointed pursuant to s.106A of the Act to execute all deeds and documents in the name of that party and do all acts and things necessary to give the validity and operation to all such deeds and documents.
The Wife sought the following final property orders in the Amended Response:
a)The matrimonial assets exclusive of superannuation be divided 65% to the Wife and 35 % to the Husband.
b)There be a superannuation splitting order equalising the parties’ current superannuation entitlements.
c)The Husband pay to the Wife the sum of $500 per week by way of periodic spousal maintenance for a period of 5 years.
The Proposals of the Parties at Trial
The Husband’s Proposals
Parenting
The Husband agreed with the orders sought by the Wife at trial in relation to parenting apart from the following:
a)The Husband sought an order that the Children live with the parties on a shared care week about basis, commencing after school Monday and concluding at the commencement of school the following Monday.
b)The Husband sought orders that he spend time with the Children:
i)From 2.30 pm Christmas Day until 6.30 pm Boxing Day in 2018 and each alternate year thereafter; and
ii)From 6.30 pm Christmas Eve until 2.30 pm Christmas Day in 2019 and in each alternate year thereafter.
c)The Husband opposed the orders sought by the Wife in relation to international travel and the issuing of passports.
d)The Husband also opposed the order sought by the Wife in relation to the signing of documents by a Registrar of this Court pursuant to s.106A of the Act.
Property
The orders sought by the Husband are summarised as:
a)The Husband pay to the Wife the sum of $100,000 within 60 days[3].
b)The Wife transfer to the Husband her interest in the Property A Property.
c)The Husband discharge the Mortgage.
d)The Wife retain for her sole use the Property B Property.
e)The Husband retain for his sole use the properties at Property C1 and C2 (Property C1 and C2 Properties).
f)If the Husband has not made the payment of $100,000 to the Wife in full by the due date, the Property C1 and C2 properties be sold altogether out of Court[4].
g)There be a superannuation splitting order taking into account the Husband’s contribution to his superannuation prior to the commencement of the relationship of $137,000, with a base amount of $128,122 allocated to the Wife pursuant to s.90MT(1)(a) of the Act[5].
[3] Husband’s Outline of Case, filed 6 March 2018, at [7] and Transcript T160:24-29.
[4] Transcript T160:30-33.
[5] Transcript T161:21-26.
Documents Relied upon by the Husband
The Husband’s Outline of Case, filed 6 March 2018 (Husband’s Outline of Case) states that the Husband relied upon the following documents:
a)Initiating Application.
b)Husband’s Affidavit, sworn 11 November 2016.
c)Notice of Risk, filed 15 November 2016.
d)Husband’s Affidavit, filed 21 December 2016 and sworn 20 December 2016.
e)Reply.
f)Financial Statement, filed 21 February 2017 (Husband’s First Financial Statement).
g)Husband’s Affidavit, filed 21 February 2017 and sworn the same day.
h)Husband’s Affidavit, filed 21 February 2018 and sworn the same day.
i)Affidavit of Mr D, filed 20 February 2018.
j)Husband’s Outline of Case.
The Husband’s Outline of Case states that the Husband relied upon an Affidavit sworn by the Husband on 20 March 2017. The Court’s records do not indicate that any affidavit sworn by the Husband on 20 March 2017 has been filed. At the trial this was drawn to the attention of Counsel for the Husband. Counsel advised that the Husband would not be relying upon this affidavit[6].
[6] Transcript T8:46-9:37.
Counsel for the Husband advised that the Husband relied on the following documents:
a)Husband’s Affidavit, filed 21 February 2018 and sworn the same day.
b)Husband’s Financial Statement, filed 6 March 2018 (Husband’s Second Financial Statement) [7].
The Wife’s Proposals at Trial
[7] Transcript T10:16-19.
Parenting
The Wife sought parenting orders in accordance the Amended Response. The Wife however did not pursue an order that the Husband be in substantial attendance whilst the Children were on school holidays[8].
[8] Transcript T143:1-12.
Property
Counsel for the Wife provided a Minute of Orders Proposed by the Wife in relation to property. The Wife sought a distribution of 60% of the non-superannuation asset pool[9] and an equalisation of the superannuation asset pool.
[9] Transcript T152:24.
The orders sought by the Wife are summarised as follows:
a)The Husband pay to the Wife the sum of $470,849 within 60 days.
b)The Wife transfer to the Husband her interest in the Property A Property.
c)The Husband discharge the Mortgage and refinance into his sole name the Bank of Melbourne residential loan BSB … Account Number … and portfolio loan BSB … Account Number … .
d)The Wife retain for her sole use the Property B Property.
e)The Husband retain for his sole use the Property C1 and C2 properties.
f)If the Husband has not made the payment of $470,849 in full by the due date the Property A Property be sold altogether out of Court.
g)There be a superannuation splitting order equalising the parties’ current superannuation entitlements, with a base amount of $196,622 allocated to the Wife pursuant to s. 90MT(1)(a) of the Act.
h)If either party refuses to sign any document required to give effect to these Orders, a Registrar of the Court be appointed pursuant to s.106A of the Act to execute all deeds and documents in the name of that party and do all acts and things necessary to give the validity and operation to all such deeds and documents.
The Wife abandoned her claim for spousal maintenance in final submissions[10].
[10] Transcript T150:27-152:23.
Documents Relied upon by the Wife
The Wife’s Outline of Case, filed 6 March 2018 (Wife’s Outline of Case) states that the Wife relied upon the following documents:
a)Amended Response.
b)Wife’s Trial Affidavit, filed 22 February 2018 (Wife’s Trial Affidavit).
c)Updated Financial Statement, filed 21 February 2018.
d)Affidavit of Mr D, filed 20 February 2018.
e)Affidavit of the Wife, filed 16 March 2017.
f)Affidavit of the Wife, filed 13 January 2017.
g)Affidavit of the Wife, filed 1 December 2016.
h)Wife’s Outline of Case.
Evidence
The standard of proof in this case is the balance of probabilities[11].
[11] Section 140 Evidence Act1995 (Cth).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The Husband and the Wife relied upon their affidavits and financial statements. The evidence set out the history of their marriage and covered both parenting and financial matters. I do not propose to repeat it in this judgment.
In Bell & Nahos[12] Strickland J addressed the obligations of a trial judge as follows:
[…] it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
[12] [2016] FamCAFC 244.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to the reach her decision[13].
[13] Ibid., at [28]-[29].
Both the Husband and the Wife gave limited evidence and were cross-examined. I therefore had the benefit of observing both parties in the witness box for a period of time and observing their demeanour in the Court throughout the proceeding.
The Husband is a professional of a company. The company has interests both in Australia and internationally. The Husband is an experienced businessman.
When being cross-examined the Husband frequently provided evasive and disingenuous responses when it was quite apparent that he understood the question. The Husband provided truthful answers to questions that suited him. When it did not suit the Husband to provide a truthful response, he was not candid with his response or he provided an evasive response. The Husband did not make concessions where appropriate. He was critical of the Wife and patronising towards the Wife throughout his evidence. The Husband was an unimpressive witness.
The Wife gave her evidence in a measured and considered manner. The Wife directly answered questions put to her, including those which may have been adverse to her case. She made concessions where appropriate. The Wife impressed me as a witness.
Mr D prepared the Family Reports. At the commencement of the trial Counsel for the Husband advised the Court that Mr D would be required for cross examination by the Husband. At the conclusion of the Husband’s evidence Counsel for the Husband advised the Court that Mr D was no longer required for cross examination on behalf of the Husband[14]. Accordingly the evidence in the Family Reports was not challenged by either party.
[14] Transcript T112:1-2.
The Applicable Law
Part VII of the Act sets out the provisions relating to children. Section 60B sets out the objects of Part VII and the principles underlying it.
Section 60CA provides:
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.
Section 60CC of the Act sets out how the Court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
Mr D records in the First Family Report that the parties appeared to agree that the Children should have a meaningful and significant relationship with each of them[15].
[15] First Family Report, at [14].
It was not disputed at trial that the Children should have a meaningful relationship with both parents.
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
There were no allegations during the trial that raised protective concerns relating to the matters covered by s.60CC(2)(b) in relation to the Children or any member of the family.
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations.
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;
At the time of the interviews with the Children for the First Family Report on 16 January 2017 and 4 February 2017, [X] was aged 7, [Y] was 6 and [Z] was 4. Mr D reported that given the age of the Children no attempt was made to obtain their views or perceptions about their parents’ proposals. Mr D said:
It is readily evident, that decisions as to the best future arrangements to be implemented will have to be made on the basis [of] other considerations rather than on the views and wishes of young children[16].
[16] Ibid., at [58].
The interviews with the Children for the Second Family Report took place on 18 December 2017 and 3 January 2018, nearly a year later. On this occasion Mr D recorded that the Children’s comments suggested that [Y] wanted her time with the Wife to remain unchanged, whereas [X] and [Z] would like their time with the Husband increased[17].
[17] Second Family Report, at [36].
The Wife deposed that after the Children had spent the weekend with the Husband on 22 May 2017, [X] told her that the Husband had discussed with her a parenting plan that was drawn on a whiteboard in his home office. [X] told the Wife that the Husband had complained to her that the Children spent more time with the Wife and that she would not agree to the parenting plan. [X] also said that she didn’t feel that it was fair that her mother spent more time with the Children than her father did[18].
[18] Wife’s Trial Affidavit, at [65(c)].
When cross-examined the Husband denied encouraging [X] to say that she wanted to spend more time with him[19]. The Husband said that a parenting plan had been drawn on the whiteboard when the Husband and Wife were discussing separation[20]. The Husband said that the Children asked about this parenting plan on a “semi-regular basis” because they wanted to rub it off so that they could draw on the whiteboard [21]. The Husband said that he had refused to allow the parenting plan to be erased from the whiteboard because he “didn’t know whether I was going to need it for the legal proceedings”[22]. Counsel for the Wife suggested to the Husband that he could have taken a photograph of the parenting plan on the whiteboard and then erased it from the whiteboard so that the Children did not see it. The response by the Husband was “Could have, but I just left it”[23].
[19] Transcript T65:8-9.
[20] Transcript T65:12-16.
[21] Transcript T65:11-46.
[22] Transcript T65:26-27.
[23] Transcript T65:26-27.
The Husband’s evidence under cross-examination in relation to the circumstances of the parenting plan being left on the whiteboard was wholly unconvincing. I have no doubt that prior to the Children’s interviews for the Second Family Report, the Husband had been actively encouraging [X] to express the view that she wanted to spend equal time with her father. The Second Family Report records as follows:
[X] indicated that she wants to have more time with [the Husband]. “I want it to be equal” at which point [Y] chimed in “dad is saying it to [X]”[24].
[…] the girls did report asking [the Husband] about a parenting plan they had noticed written on a whiteboard[25].
[24] Second Family Report, at [35].
[25] Ibid., at [38].
I do not propose to accord any weight to the comments made by the Children and recorded in the Second Family Report. As Mr D noted in the First Family Report, the Children are too young to determine what is in their best interests.
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);
Each of the child’s parents
Mr D reported in the First Family Report that the Children have a “warm, close, engaged relationship” with both their parents[26].
[26] First Family Report, at [72].
Mr D also reported that the Wife did not work after … 2009 following the birth of [X] and that she returned to the workforce in … 2013 when the youngest child [Z] was 18 months old. Mr D noted that the Wife had also been primarily responsible for meeting the day-to-day needs of the Children since separation. Mr D reported that:
…[The Wife’s] input has been greater and … this has strengthened her relationship with them. Put another way, the children had been used to it being [the Wife] who met their day-to-day needs. Even though [the Husband] played a role in their care, this was not as intense or as involved as that played by [the Wife]. Hence the relationship the children have with [the Wife] is stronger…[27]
[27] First Family Report, at [73].
Other persons (including any grandparent or other relative of the child)
The Husband deposed that the Children had a very good relationship with the paternal grandparents Mr E and Ms F and that they regularly spent time with them[28]. The paternal grandparents have assisted the Husband with drop off and collections of [Z] from … ELC pursuant to the consent Orders made on 20 December 2016.
[28] Husband’s Affidavit, filed 21.2.18, at [17].
The paternal grandparents did not file an affidavit in this proceeding. I am not able to form any view about the relationship between the Children and the paternal grandparents, other than noting that the Wife agrees that the Children have a good relationship with the Husband’s extended family members. There is no suggestion from the Wife’s affidavit material that the Children did not enjoy spending time with the paternal grandparents.
The Family Reports did not include any observations of interactions between the Children and the paternal grandparents.
Section 60CC(3)(c) the extent to which each of the child’s parents 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.
Participation in making decisions about major long-term issues in relation to the Children
Both the proposals of the Husband and the Wife seek orders that the parents have equal shared parental responsibility for the Children.
Prior to separation both parents participated in making decisions in relation to the long term issues in relation to the Children.
Unfortunately after separation the parties have been in constant disagreement on a number of matters, in particular the Children’s extra-curricular activities. Mr D concludes in the Second Family Report:
[The Husband] and [the Wife] remain unable to agree on many issues, some major and some minor[29].
There have been some tensions over the girls attending Language school. Similarly [the Husband’s] preference is for [the] girls to do sports on Saturday mornings, [the Wife’s] is for them to continue with martial arts: an activity they pursue weekdays as well. It would appear that each parent is only able to offer limited support when it comes to the activities the girls engaged in as chosen by the other[30].
[29] Second Family Report, at [45].
[30] Ibid., at [46].
Opportunity to spend time with and communicate with the Children
Subsequent to separation both parents have sought to spend time with and to communicate with the Children.
The Wife has deposed that during the relationship the Husband engaged in long work hours and travelled extensively both interstate and overseas as part of his employment[31]. The Husband agreed under cross-examination that he travelled internationally for a significant amount of time in the latter part of 2014 and in early 2015[32].
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
[31] Wife’s Trial Affidavit, at [69] and Wife’s Affidavit, filed 1.12.16, at [5]-[7] and [23]-[27].
[32] Transcript T15:24-25.
Both parents have maintained the Children during the relationship and post separation. The Husband is assessed to pay child support.
Section 60CC(3)(d) the likely effect of any change 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;
Either of his or her parents
Husband’s Proposal
The Husband’s proposal (Shared Care Proposal) is that the Children live with the parties on a shared care week about basis, commencing after school Monday and concluding at the commencement of school the following Monday.
The Husband has pursued the Shared Care Proposal since he commenced this proceeding in November 2016. In support of the Shared Care Proposal the Husband has said:
I do not anticipate any drastic changes in the children’s circumstances, including the risk of separation from either parent, the children from each other, or their close relatives who continue to spend substantial time with the children[33].
[…] I believe it is in the best interest of the children to have shared living arrangements so that they can have a balanced view on life. I have grown up in Melbourne but travelled all over the world and have obtained many important life skills that I can pass on to the children. I am a qualified sports coach and long-time manager who has mentored young people in both sport and life. These skills can be used to nurture all three children and allow them to develop into their own people with substantial opportunities[34].
I do not anticipate any problems arising from the implementation of an equal shared care arrangement. In my view, the children will take it in their stride living with each of us on a regular week-about basis[35].
In my view the Orders which I seek would not have an effect on the [C]hildren in relation to their separation from their mother[36].
[33] Husband’s Affidavit, filed 15.11.16, at [30].
[34] Husband's Affidavit, filed 21.2.17, at [19].
[35] Husband’s Affidavit, filed 21.2.18, at [22].
[36] Husband's Outline of Case, at [4], para. 7.
The Wife has opposed the Shared Care Proposal throughout this proceeding.
When cross-examined the Wife said:
[…] I have been the constant in the children’s lives. From the moment they were born I was home with them. Even when we had au pairs I was the first home to look after the children. [The Husband] often worked late and travelled and I was always there. So to suddenly take me away from the children for the seven nights would be a big change for the children and they would struggle with that, and they - they have struggled with that in times when it has been school holidays and they’ve had to have extended periods away from me and they have requested to see me[37].
[37] Transcript T124:30-36.
In the First Family Report Mr D reported [Y] as being an anxious and possibly hypervigilant child. He noted that [Y] needed to know what was going on and seemed to crave predictability.[38]
[38] First Family Report, at [66].
Mr D noted in the First Family Report that after the Wife returned to full time work in … 2013, the parties initially made extensive use of pre-and post-school care and also child care. In the middle of 2014 the first of a succession of au pairs was engaged to assist them in meeting the various day-to-day needs of the Children [39]. In a two year period to August 2016 the parties engaged seven au pairs[40]. In relation to the succession of au pairs Mr D said:
All three girls have been looked after by a series of carers for the two years preceding the separation. Some carers have been in their lives longer than others and the quality of care and attunement to their needs provided by the au pair girls will have probably been inconsistent. There is some likelihood that all three girls, to a greater or lesser extent, have formed attachments to these carers only to have such attachments disrupted. This has entailed [a] greater or lesser sense of loss and disruption. Whilst it is [Y] who appears to have been most evidently impacted by the number of carers, the possibility that her sisters have also been impacted cannot be excluded, even if they do not present with the same level of anxiety as [Y] does[41].
[39] Ibid., at [27].
[40] Ibid., at [37].
[41] Ibid., at [66].
Mr D recommended that [Y] and the other girls be referred to a child psychotherapist. Mr D also concluded that:
[…] the relationship the children have with [the Wife] is stronger and this should not be eroded by their spending an equal amount of time with [the Husband][42].
If implemented, a week about equal time regime is a change of significant magnitude. One must wonder as to the children’s capacity to deal with such an increase and with the consequent reduction in the time they are with [the Wife] given they have been accustomed to it being [the Wife] who meets the majority of their needs prior to au pair girls being used and since the final separation in October 2016. Implementing an equal time regime is likely to entail a sense of loss for them as their time with [the Wife] and ready accessibility to her are significantly reduced[43].
[42] Ibid., at [73].
[43] Ibid., at [74].
In the First Family Report Mr D did not support the Shared Care Proposal[44]. Mr D recommended that the Husband’s time be increased to 4 nights in a two week cycle, provided that it would be the Husband who would be directly and substantially responsible for meeting the needs of the Children. This recommendation was based upon the need of the Children “to have a stronger and more meaningful relationship with [the Husband]”[45].
[44] Ibid., at [76].
[45] Ibid., at [78].
In the Second Family Report Mr D records:
As for how an equal time arrangement would function, [the Husband] was of the view that “all three girls would love it… they want more time with me”. He thought that [X] in particular wanted an equal time regime and that her wishes should be taken into account. “She will flourish under my roof…”[46].
[46] Second Family Report, at [18].
In the Second Family Report Mr D records that in opposing the Shared Care Proposal the Wife “argues that [the Husband] is not sufficiently attuned and responsive to the emotional and physical needs of the girls[47].
[47] Second Family Report, at [13].
Mr D noted in the Second Family Report that:
There is a need to balance the needs of the girls to spend more time with [the Husband] whilst at the same time providing them with a sense of consistency, continuity and stability by not eroding their relationship with [the Wife] unduly[48].
[48] Ibid., at [44]
In the Second Family Report Mr D continued to not support the Shared Care Proposal[49]. Instead Mr D recommended that the Children’s time with the Husband be increased from four nights in a two weekly cycle to five nights. It was the Counsellor’s preference for this time to be structured on a two night/three night basis, as this provided greater frequency of contact. It was however noted that a block of time would give the Children an opportunity to settle into the Husband’s household environment and Mr D said that whichever arrangement was implemented, it was a matter for the parents depending upon their respective commitments[50].
[49] Ibid., at [53].
[50] Ibid., at [54] and [59].
Mr D emphasised that:
[…] the girls presently live in an all-female household. They have to be able to readily access [the Husband] as a positive male role model and also both the maternal and paternal sides of their family so as to be able to achieve balance in their identities. The changes suggested…should provide opportunities for this to happen[51].
[51] Ibid., at [55].
When cross-examined about the Shared Care Proposal the Husband was asked whether he thought Mr D’s recommendation in the Family Reports concerning the Shared Care Proposal were wrong. The Husband responded:
[…] I think, for the benefit of the children and also for what the kids actually want to do, that’s why I think, anyway to give the opportunity for them to have an equal arrangement, which then gives me the opportunity to nurture them and help them develop and, you know, mentor them through what’s coming up[52].
[52] Transcript T150:10-14.
Mr D’s observations and recommendations in the Family Reports have been made over a period of twelve months. The Husband has persisted in pursuing the Shared Care Proposal throughout the course of this proceeding, undeterred by these observations and recommendations made by Mr D. The Husband has thereby demonstrated that he has little insight into the needs of the Children. It also demonstrates the Husband’s preoccupation with his own opinions and needs.
Wife’s Proposal
Earlier in this proceeding the Wife considered the recommendations in the First Family Report and agreed to the consent Orders made on 20 March 2017 that the Children spend four nights with the Husband. These Orders were in accordance with the recommendations in the First Family Report.
The Wife has again considered the recommendations in the Second Family Report and now proposes that the Children spend time and communicate with the Husband during school term each alternate week from the conclusion of school or 3.30 pm Thursday until the commencement of school or 9.00 am Tuesday (Wife’s Parenting Proposal).
The Wife’s Parenting Proposal is in accordance with Mr D’s recommendations in the Second Family Report.
By considering the Family Reports and changing her position in relation to the living arrangements for the Children, the Wife has demonstrated that she has the capacity to put the interests of the Children before her own interests.
The Shared Care Proposal would be a significant change to the Children’s lives. Adoption of the Shared Care Proposal would be likely to damage the strength of the relationship that the Children have with the Wife, who has been their primary carer. The Wife’s Parenting Proposal is likely to provide the Children with consistency, continuity and stability, without damaging their relationship with the Wife. It would also increase the Children’s time with the Husband.
Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is not a relevant consideration.
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
The parties both live in Suburb D. Their homes are about a five minute drive or a ten to fifteen minute walk apart from each other[53]. Therefore from a geographical perspective there are no practical difficulties or expenses in the Children spending time and communicating with the parents.
[53] Husband’s Affidavit, filed 21.2.18, at [10].
The paternal grandfather’s home is between the Property B Property and the Property A property.
The Wife has deposed that there is a practical difficulty in the Husband caring for the Children in accordance with the Shared Care Proposal on the basis of his significant work and travel commitments[54] and his extensive reliance on family members to care for the Children, particularly over the school holiday periods. The Wife has deposed that given the Husband’s employment and his work ethic, it is extremely unlikely that he will be able to spend half of all school holidays with the Children[55].
[54] Wife’s Trial Affidavit, at [69] and Wife’s Affidavit, filed 1.12.16, at [5]-[7] and [23]-[27].
[55] Wife’s Affidavit, filed 1.12.16, at [43].
Conversely the Husband deposed that:
I have substantial flexibility in my employment and I can readily organise my work commitments and travel around the children to ensure that during the week they are with me, I can curtail my contact hours to attend to school […] pickups, drop-offs and after school commitments. In the event something unexpectedly arises at work and I am unable to collect the children from school, my father (the children’s paternal grandfather) and his partner live less than five minutes from School P Primary School and often collect the children from school regardless of whether they are living with [the Wife] or me at the time[56].
[56] Husband’s Affidavit, filed 15.11.16, at [18].
The Husband deposed that during 2017 he was able organise his work commitments so that he could drop off and pick up [Z] from … ELC 161 times. He was also assisted to a minor extent by his father and mother[57].
[57] Husband’s Affidavit, filed 21.2.18, at [28].
In the First Family Report Mr D records that the Wife said to him:
“I have been a constant for them when their father has been away… He says he can change his work hours but he won’t. I wonder what will happen once he is no longer under the eyes of the Court”. [The Wife] opposes the orders for a week about regime. “I don’t think it will work. The kids will have a problem with it”[58].
[58] First Family Report, at [40].
I share the Wife’s concerns in relation to the Husband’s capacity to implement the Shared Care Proposal without the significant assistance of the parental grandparents and the paternal grandfather’s partner Ms G. When the Husband was cross examined about how he intended to manage the Shared Care Proposal in terms of the drop offs and collections from school he readily admitted that:
I can go and pick the kids up, and I am available to do all that stuff as well. Got parents and people around. So there – there’s lots of options to – to use the sort of wider community”[59].
The Husband suggested that his auntie could also assist, as well as an uncle, the paternal grandparents and Ms G.
[59] Transcript T26:40-42.
The Husband’s evidence under cross examination left me in no doubt that if the Shared Care Proposal was adopted the Children would be regularly subjected to a variety of people dropping them off at school and collecting them from school on the weeks that they were living with the Husband. This would also potentially involve each of these people caring for the Children before and after school until the Husband returned from work.
The Wife works part time at Employer as a professional. The Wife is able to deliver and collect the Children to and from school each day and ensure that they attend their extra-curricular activities[60].
[60] Wife’s Trial Affidavit, at [19].
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 the emotional and intellectual needs;
Each of the child’s parents
The Husband
There is a concern about the Husband’s ability to provide for the emotional needs of the Children. This concern is the Husband’s denigration of the Wife to the Children. The Husband has deposed:
I intend to do everything within my power and control to encourage the children to have a positive and meaningful relationship with their mother and the shared time arrangement that I seek is consistent with ensuring that continues to be the case[61].
[61] Husband’s Affidavit, at [13].
Unfortunately this attitude was not displayed when the Husband was cross-examined. The Wife deposed to examples of the Children telling her about disparaging comments the Husband had made about the Wife to the Children[62]. The Husband was cross-examined in relation to these comments and I am satisfied that on the balance of probabilities the Husband made these comments to the Children.
[62] Wife’s Trial Affidavit, at [65(a)-(f), (h) and (i)].
The Husband has a disparaging and patronising attitude towards the Wife. The Husband:
a)Sent a text to the Wife on 27 April 2017 accusing her of quitting her job so that he would have to pay for her lifestyle[63]. The Husband was cross examined in relation to this text as follows:
[63] Ibid., at [65(a)], Annexure “O”.
Counsel So,… part of you thinks that she did quit her job so that you could pay for her lifestyle?
Husband Yes, I think potentially, yes[64].
[64] Transcript T56:45-46.
b)Sent a text to the Wife on 5 December 2017 accusing her of being overly vigilant in relation to [Y]’s medical needs[65]. He also sent a text stating:
[65] Wife’s Trial Affidavit, at [65(g)], and Annexure “P”.
Whilst you are off with [Z] and [Y] today I suggest you read up on Munchausen syndrome by proxy. The doctor clearly said [Y] would NOT need 2 or 3 days off school even though you pushed for it[66].
[66] Loc. cit.
This text also sent information about Munchausen syndrome which stated:
Munchausen syndrome by proxy (MSBP) is a mental health problem in which a caregiver makes up or causes an illness or injury in a person under his or her care, such as a child, an elderly adult, or a person who has a disability. Because vulnerable people are the victims, MSBP is a form of child abuse or elder abuse [67].
[67] Loc. cit.
When cross examined about this text the Husband refused to concede that the text was “ill-advised at the time”[68] or that it was a message denigrating the Wife[69].
[68] Transcript T48:45-47.
[69] Transcript T50:5-10.
c)In his affidavit material made no reference to the fact that the Wife had taken time out of the workforce between … 2009 and … 2013 to be the primary carer of the Children.
d)At no time during cross-examination did the Husband articulate a genuine respect for the Wife’s role as a mother or a genuine intention to protect that role.
e)In his affidavit material criticised the Wife for not working full time. The Husband deposed:
The Respondent ceased work to have our first child, [X] in … 2009. She returned to work in approximately … 2013 and up until August 2016 she was employed as a professional to Employer. She was earning an income of approximately $97,500 per annum. She voluntarily resigned from this position to take up work three days per week as a professional to the Employer, working from 9:30am to 3:00pm. She deposes that she earned $26,416 per annum for that job. She has, however, subsequently changed jobs and is now working four days a week as a professional at Employer for an income of $45,755 per annum. As far as I’m aware, there is no reason why the Respondent can’t be employed full time at a job commensurate with her abilities which would maximise her earning capacity to that which she was previously receiving[70].
When cross-examined the Husband conceded that he was critical of the Wife not utilising her ability to work full time[71]. When asked if the Wife had achieved a balance that was beneficial for the Children the Husband responded “yes” but that “there’s lots of options” to use in the “wider community”[72] being “uncles, aunties, grandparents”[73].
f) In his affidavit material the Husband repeatedly states that he purchased the Property B Property for the Wife.
i)The Husband has deposed:
Following our separation, I purchased a four-bedroom property for [the Wife] at Property B, which is registered in her sole name and unencumbered. The property was purchased for approximately $775,000 and settled on … 2016. [The Wife] chose the house and I bought it at the listed auction[74].
ii)When cross-examined the Husband disagreed that the Property B Property had been purchased from matrimonial funds. This was notwithstanding that the mortgage secured over the Property B Property was secured against: one of the Property C Properties which was purchased during the relationship; and with funds from a property at London, England (England Property), which was purchased during the during the relationship[75].
[70] Husband’s Affidavit, filed 21.2.18, at [34].
[71] Transcript T26:10-11.
[72] Transcript T26:34-37.
[73] Transcript T27:25-27.
[74] Husband’s Affidavit, filed 15.11.16, at [9]; See also: Husband’s Affidavit filed 21.2.18 at [10]. Husband’s Outline of Case, p.3.
[75] Transcript T99:17-100:12; Wife’s Trial Affidavit, at [28] and “Annexure “K”.
The Husband also has a disparaging attitude towards the Wife’s friend Ms H with whom the Wife has a romantic relationship. The Wife and Ms H have been friends since … 2015[76]
[76] Wife’s Affidavit, filed 1.12.16, at [19].
The Wife has deposed to the Children telling her about derogatory comments that the Husband has made about Ms H to the Children and about her friendship with Ms H [77]. The Husband:
[77] Wife’s Trial Affidavit, at [79]-[80].
a)Admitted under cross-examination that he told [Y] that Ms H was not allowed to buy her presents such as runners[78].
b)Was asked under cross examination:
[…] you don’t like the idea of Ms H, do you? You don’t like the idea of her being in your children’s life?
The Husband responded:
No, generally, no. I- no, that’s fair. I don’t[79].
c)Conceded under cross-examination that he did not do anything to support the Children’s relationship with their mother’s friend Ms H [80].
d)Expressed the view that he was displeased that Ms H had dropped the Children off at school and had taken them to activities[81].
e)Said that he did not think that the Children would notice that he disapproved of the Wife’s relationship with Ms H [82].
f)Conceded that he had a girlfriend who lived in Town H and that he had taken the Children up to Town H twice to meet his girlfriend. He agreed that the Children had met his girlfriend’s two children[83].
[78] Transcript T61:5-7.
[79] Transcript T61:10-11.
[80] Transcript T61:13-14.
[81] Transcript T61:25-27.
[82] Transcript T63: 43-44.
[83] Transcript T61: 37-62:12.
The Wife
The Wife has been the primary carer of the Children all of their lives.
At the commencement of this proceeding the Wife deposed that the Children had a good relationship with the Husband and that they enjoyed spending time with him[84].
[84] Wife’s Affidavit, filed 1.12.16, at [30].
In the First Family Report Mr D records that the Wife when interviewed said:
He’s a good dad… A great dad when his (sic) available[85].
[85] First Family Report, at [32].
When the Wife was cross-examined about the Husband’s parenting abilities the Wife said:
Yes, he is as good a parent as I am. I would say that I was more attuned to my children’s needs because I have spent the most time with my children since birth…[86]
[86] Transcript T127:29-31.
The Wife has deposed that she resigned from her position at Employer to take up a part time position that enabled her to be available to care for the Children when they were not attending school or childcare. By resigning from full time work and undertaking part time work at the time of separation to care for the Children, the Wife has demonstrated that she is attuned to both the emotional and intellectual needs of the Children.
The Wife’s ability to provide emotional support for the Children will be enhanced if the Wife’s Parenting Proposal is adopted. Conversely the Wife’s ability to provide emotional support for the Children will be reduced if the Shared Care Proposal is adopted.
The Husband’s inability to see the Wife in a positive light has and will continue to significantly impact upon the Children. If the Shared Care Proposal was adopted it would have a negative impact on the Children’s ability to pass between their parent’s homes in a manner which promotes their emotional stability. It would also undermine the strength of the Children’s relationship with the Wife.
The Husband’s disparaging attitude towards the Wife has a negative impact upon his ability to provide for the emotional needs of the Children.
The Husband’s inability to provide for the emotional needs of the Children is clearly demonstrated by his criticism of the Wife for working part time and not being “employed full time at a job commensurate with her abilities which would maximise her earning capacity”[87]. The Husband would prefer that the Children were looked after by uncles, aunties, grandparents and Ms G rather than their own mother. The Husband is more concerned about the financial consequences of his separation with the Wife than the recommendations in the Family Reports and the emotional needs of the Children.
[87] Husband’s Affidavit, filed 21.2.18, at [34].
Any other person (including any grandparent or other relative of the child);
This is not a relevant consideration.
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;
The Husband was born in Australia and the Wife was born in the United Kingdom. The Wife’s family is from a … nationality background. The Wife’s family members live in the United Kingdom. The Husband’s family live in Australia.
[X] is aged 9, [Y] aged 8 and [Z] aged 6.
The Children all attend Suburb D Primary School. They are in Grades Four, Three and One respectively.
At the time of the trial the Children were involved in a number of extra- curricular activities in various combinations. These included: sports and hobbies.
The Wife describes the Children as being in good health[88]. At the time of the trial both [Z] and [Y] had been diagnosed with a viral induced wheeze[89] and [Y] was being investigated for asthma related symptoms after a recent admission to hospital with asthma symptoms[90]. [X] attends a speech therapist once every six weeks[91].
[88] Wife’s Trial Affidavit, at [49].
[89] Transcript T127:4-12.
[90] Transcript T31:34.
[91] Wife’s Trial Affidavit, at [49].
In the Second Family Report Mr D reported that the Wife had organised for [Y] to meet with a psychologist, Ms J. Ms J was unable to identify any troubling behaviours, however Mr D reported that [Y] continued to be vigilant and intrusive. Mr D recommended that both parents be on the lookout for [Y] experiencing any anxiety around transitions, excessive vigilance and obsessive behaviours[92].
[92] Second Family Report, at [26].
Mr D also reported in the Second Family Report that the Wife had been alerted by [X]’s teacher that [X] had been manifesting considerable anxiety and possible obsessiveness around the completion of school tasks like homework and projects. The Wife said that [X] was at times “clinging” on her return from time spent with the Husband and “was prone to ‘melt-downs’ in some situations”[93].
[93] Second Family Report, at [27].
In the Second Family Report Mr D again suggested that the Husband and the Wife obtain a referral for all of the Children to meet with a child psychotherapist[94].
[94] Loc. cit.
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;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parties are loving and caring parents.
In the First Family Report Mr D described the Husband and the Wife as:
[…] loving, devoted and committed parents with different perceptions of what constitutes the best future care arrangement for the children[95].
[95] First Family Report, at [60].
The Husband’s behaviour has however demonstrated that he has not been able to consistently place the best interests of the Children before his own interests. I refer to the discussion in relation to s.60CC(3)(a), s.60CC(3)(c), s.60CC(3)(d) and s.60CC(3)(f). I also refer to the Husband’s behaviour discussed in paragraphs 206 to 213.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
This is not a relevant consideration.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
Characterisation of Husband’s Payment of $27,976.60 for Legal Fees
The Husband has had the benefit of the payment of his legal fees from the proceeds of sale of the England Property. The England Property was purchased during the relationship. The sum of $173,673 has been attributed to the net proceeds of the sale of the England Property in the agreed list of Assets and Liabilities.
The settled authorities clearly permit notional add back of funds dispersed by premature property settlement and applied to legal costs.
The Husband has depleted the net amount available from the proceeds of sale of the England Property by payment of his legal fees in the sum of $27,976.60.
Accordingly the sum of $27,976.60 will be added back as a notional asset of the property to the asset pool.
Findings as to Asset Pool for Distribution between the Parties
| Ownership | Assets | Value | |
| 1 | Joint | Property A Property | 1,825,000 |
| 2 | Wife | Property B Property | 830,000 |
| 3 | Husband | Property C1 | 525,000 |
| 4 | Husband | Property C2 | 505,000 |
| 5 | Husband | Proceeds of the sale of property in London, England, less repayment of loan to the Husband’s father and less CGT payment of $74,103 | 173,673 |
| 6 | Husband | Husband’s 9.49% interest in Company P | 42,000 |
| 7 | Husband | Proceeds of sale of Company R Shares | 9,691 |
| 8 | Husband | Husband’s legal fees | 27,977 |
| Total | $3,938,341 | ||
| Ownership | Liabilities | Value | |
| 8 | Joint | Bank of Melbourne Home Loan and Portfolio Loan secured against the Property A Property | 1,139,060 |
| 9 | Husband | Bank of Melbourne loan secured against Property C2 | E 184,633 |
| 10 | Husband | Bank of Melbourne loan secured against Property C1 | E 418,589 |
| Total | $1,742,282 | ||
| Net Total | $2,196,059 | ||
| Member | Name of Fund | Type of Interest | Value | |
| 11 | Wife | Super 1 | Accumulation | 23,542 |
| 12 | Wife | (UK Super) (15.8.2017) | E 108,660 | |
| 13 | Husband | Super 2 (21/1/2018) | Accumulation | 525,446 |
| Total | $657,648 | |||
Contributions
Financial Contributions section 79(4)(a)
Initial Contributions
At the commencement of the relationship in … 2007 the Husband was working for Company P and was posted to England.
At the commencement of the relationship the Husband:
a)Owned a property at Property D (Property D Property) in the State of Victoria. There is no independent evidence as to the value of the Property D Property at the commencement of the relationship. The Husband’s evidence is that the Property D Property was valued at that time at approximately $675,000 and that it had a mortgage of $337,300, leaving an equity of approximately $338,000 [139]. The Wife agrees that as at … 2007 the equity in the Property D Property was approximately $336,364[140].
b)Owned the Property C1 property. It was valued at $310,000 and was subject to a mortgage of approximately $21,000 in … 2007. The equity in this property as at … 2007 was approximately $289,000[141].
c)Held superannuation with Super Fund 3. At 30 June 2007 his entitlement was $137,750[142].
d)Held Shares in Company P which is the ultimate holding company for the Company R business. The Husband had a 9.72% interest which he estimates to have been valued at that time at approximately $2,000,000[143]. There is no independent valuation of these shares at the commencement of the relationship. The Husband retained these shares throughout the marriage. At the time of the trial the Husband valued these shares at approximately $42,000[144]. The decrease in the value of these shares is unexplained.
[139] Husband’s Affidavit, filed 21.2.18, at [32(a)].
[140] Wife’s Case Outline, at [4], s.79(4)(a).
[141] Husband’s Affidavit, filed 21.2.18, at [32(b)]; Wife’s Trial Affidavit, at [8].
[142] Husband’s Affidavit, filed 21.2.18, at [32(c)].
[143] Ibid., at [32(d)].
[144] Husband’s Financial Statement, filed, 6.3.18, at [41].
The Wife accepts that at the commencement of the relationship the Husband owned property to the value of approximately $624,864[145] and shares to the value of $42,000[146]. This constitutes an initial contribution approximately $666,864.
[145] Wife’s Case Outline, at [4], s. 79(4)(a).
[146] Transcript:T132:9-10.
At the commencement of the relationship the Wife:
a)Was working.
b)Had owned a flat in London prior to the commencement of the relationship. This property was sold for £163,000 on … 2015. The Wife received a net sum of approximately £65,000 from the sale, which equated to approximately AUD $134,680 (using the conversion rate as at 6 July 2015)[147] (London property Funds).
c)Held superannuation with Super Fund now known as Super Fund, with a balance of £27,456 as at 21 August 2009[148], which equates to AUD$54,362 (based on the conversion rate as at that date)[149].
[147] Wife’s Trial Affidavit, at [10].
[148] Wife’s Trial Affidavit, at [11(a)] and Annexure “A”.
[149] Wife’s Case Outline, at [5], s.79(4)(a).
Contributions During the Marriage
The Husband worked throughout the relationship.
The Wife worked during the relationship. I refer to paragraphs 110(e) and 117 in relation to the Wife’s work history during the relationship.
The Wife contributed $56,000 of the London property Funds to landscaping and a play area for the Children at the Property A Property. She also paid for a trip for herself and the Children to travel to the United Kingdom and for all the family to visit and stay at … en route[150].
[150] Wife’s Trial Affidavit, at [10]; Transcript T130:7-14.
Neither party received any gifts or inheritances of significance during the relationship[151].
[151] Husband’s Affidavit, filed 12.2.18, at [36]; Wife’s Trial Affidavit, at [21].
The Husband deposed that:
I spent approximately $200,000 on the [Property A Property], conducting significant landscaping at the property and some four or five years ago, we spent a further $250,000 conducting significant renovations to the home”[152].
[152] Husband’s Affidavit, filed 12.2.18 at [36].
The Husband when cross-examined said that he had received the money for the landscaping and renovations from dividends he had received in 2016[153].
[153] Transcript T96:44-97:6.
Contributions post separation
The Husband has continued to make payments pursuant to the Mortgage since separation[154].
[154] Husband’s Affidavit, filed 21.2.18, at [39].
The Wife used the London property Funds to furnish the Property B Property. The Wife estimated that she had spent about $10,000 on home contents as she had taken nothing from the Property A Property when she separated from the Husband[155].
[155] Transcript T130:16-19.
Section 79 (4)(b) Non-Financial Contributions – Property in December 2013
Both the Husband and the Wife made non-financial contributions both directly and indirectly to the acquisition, conservation and improvement of the property of the parties. During the relationship the parties maintained the Property A Property. Since separation the Husband has maintained the Property A Property and the Wife has maintained the Property B Property.
Section 79 (4)(c) Non-Financial Contributions – Welfare of the Family
The Wife stopped working after the birth of [X] in … 2009 and returned to work in … 2013. During this time the Wife was the primary carer for the Children.
During the relationship the Husband worked long hours and travelled extensively interstate and overseas. The Husband contributed to the parenting of the Children to the extent that his work commitments enabled him to do so.
The Wife has been the primary carer for the Children since separation.
Section 79(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage;
The orders which I propose to make will have a limited effect upon the earning capacity of the Husband. The Wife’s responsibility to care for the three young Children affects her capacity to work full time. The Wife works part time during school hours to enable her to care for the Children and to ensure that the Children are taken to all of their extra-curricular activities.
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
The Husband has been assessed to pay child support of $2,377.50 per month, being $28,530 per annum[156].
The matters referred to in Section 75(2) so far as they are relevant
[156] Husband’s Affidavit, filed, 21.2.18, at [35].
Section 75(2)(a) the age and state of health of each of the parties;
The Husband is aged 47 and is in good health. The Wife is aged 40 and is also in good health.
Section 75(2)(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 is employed as a professional at Employer. She is on a part time fixed term contract commencing … 2018 and concluding … 2020[157]. The Wife has been employed in this position since … 2017. She works four days a week being, Mondays Wednesdays and Fridays from 9:30 am until 2:45 pm and Thursdays from 10.00 am to 1.00 pm[158].
[157] Exhibit R4.
[158] Wife’s Trial Affidavit, at [48].
The Wife’s remuneration is $46,240, consisting of:
a)A base salary of $39,521.50 per annum payable fortnightly.
b)Superannuation contributions of 17% of the base salary[159].
[159] Exhibit R4.
When cross-examined about her employment the Wife said:
Hopefully my contract will be renewed after the two-year period. If it’s not I will do all that I can to seek another role, but I can’t - I can’t offer anybody any guarantees about what my income will be in five years time. My primary concern will be for the children always and certainly in five years time they still would be very young so I don’t foresee that I will be back to full-time work in that period[160].
[160] Transcript T134:17-22.
The Husband is employed by Company P Pty Ltd as Managing Director of Company R.
The Husband’s taxable income for the year ending:
a)30 June 2014 was $219,273. The 2014 Tax Return indicates that the Husband received approximately $22,000 in dividends[161].
b)30 June 2015 was $328,558. The 2015 Tax Return indicates that the Husband received $67,350 in dividends[162].
c)30 June 2016 was $627,555[163]. The 2016 Tax Return indicates that the Husband received dividends from Company R Pty Ltd totalling $414,987. The Husband gave evidence that this related to part of the sale of the Company R business[164].
[161] Exhibit R3. Transcript T96:14.
[162] Exhibit R3. Transcript T96:24.
[163] Exhibit R3.
[164] Transcript T96:13-21.
The Husband’s accountant estimated that the Husband’s taxable income for the year ending 30 June 2017 would be $339,948[165]. This income included:
a)Gross salary and wage income of $196,350.
b)Capital Gains Income of $151,378 from the sale of the England Property.
[165] Taxation Estimate, for the year ended 30.6.17, Exhibit R1.
The Husband also receives superannuation as part of his remuneration. For the financial years ending 2015 to 2017 he received $19,876.08 each year in compulsory superannuation[166].
[166] Exhibit R2.
When cross-examined the Husband said that he had also been making voluntary payments into his superannuation in addition to the employer contributions. These payments were deducted from his salary. He said that he had been making these payments since the early 1990’s. For the financial years ending 2015 to 2017 he paid $5,649 each year. For the financial year 2018 to 28 February 2018 he had paid $3,766[167].
[167] Loc. cit.
There is no evidence to suggest that either the Husband or the Wife is incapable of gainful employment.
Section 75(2)(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
Pursuant to consent orders made on 20 December 2016 the Children, live with the Wife. The Children live with the Husband four nights in each alternate fortnight.
Section 75(2)(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
The commitments of each of the parties that are necessary to support himself/herself and those that they have a duty to maintain are set out in their respective financial statements.
The Wife was cross-examined about the accuracy of the Financial Statements that she filed.
The Husband was also cross-examined about the accuracy of the Financial Statements that he filed.
Section 75(2)(e) the responsibilities of either party to support any other person;
Apart from the Children there was no evidence that either party had responsibilities to support any other person.
Section 75(2)(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
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
The Wife in her Updated Financial Statement deposed that she received benefits totalling $370 in the form of the sole parent pension and the family tax benefit[168].
[168] Wife’s Updated Financial Statement, filed 21.2.18, at [12].
The Wife has an entitlement to a pension from the Staff Pension Benefit. This pensions is in the sum of £966 per annum and is available from a retirement date of 30 April 2040[169].
Section 75(2)(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
[169] Wife’s Trial Affidavit, at [11(b)] and Annexure “B”.
I am satisfied that the orders to be made will provide a reasonable standard of living to both of the parties.
Section 75(2)(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;
This is not a relevant consideration.
Section 75(2)(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;
This is not relevant consideration
Section 75(2)(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;
I refer to my findings as to contribution.
Section 75(2)(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;
The Wife’s role as home maker and parent during the marriage has had an adverse effect on her earning capacity. She returned to full-time employment in … 2014 when [Z] was nineteen months old. When the parties separated the Wife decided that it was in the best interests of the Children that she worked part time work, so that she was available for the Children before and after school. This has affected the Wife’s earning capacity and will continue to do so for the foreseeable future.
Section 75(2)(l) the need to protect a party who wishes to continue that party’s role as a parent;
Pursuant to the parenting orders the Children will remain living with the Wife and spend substantial and significant time with the Husband. The parenting orders will protect the Husband and the Wife’s wishes to continue in their roles as a parents.
Section 75(2)(m) if either party is cohabitating with another person - the financial circumstances relating to the cohabitation;
There is no evidence that either party has re-partnered and is living with another person.
Section 75(2)(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
(ii) vested bankruptcy property in relation to a bankrupt party;
I am satisfied that the orders that I intend to make are sufficient under s.79 to enable the Wife to adequately maintain herself.
Section 75(2)(naa) the terms of any order or declaration to be made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a defacto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
This is not a relevant consideration.
Section 75(2)(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;
This is discussed in relation to s.79(4)(g).
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
When cross-examined in relation to the Property C Properties the Husband said:
[…] I’ve put those - the two flats in Property C, so I’ve put those in place for the kids. So the idea was that the kids would be able to get those, because I’ve got a strong belief how kids won’t be able to get on the property ladder…[170]
[170] Transcript T76:1-3.
Counsel for the Wife asked the Husband:
So... You’re saying you can’t sell those Property C properties because they’re earmarked for the children. Is that right?[171]
The Husband responded:
I was trying to do everything possible not to do that, and I still am[172].
[171] Transcript T76:7-8
[172] Transcript T76:10.
Prior to final addresses, Counsel for the Husband advised the Court that he had just been informed by the Husband that if the Husband had to sell the Property C Properties to pay out the Wife, there would be capital gains tax payable[173]. Counsel for the Husband proposed that in the event that the Property C Properties were to be sold, the Court should order that any capital gains tax should be distributed equally between the parties or in accordance with whatever percentage the Court considered appropriate[174].
[173] Transcript T140:43-46.
[174] Transcript T141:15-18.
Counsel for the Wife said that it had been the Husband’s evidence that he had earmarked the Property C Properties for the Children for the future and that he hadn’t intended on selling them. Counsel for the Wife submitted that the Husband had failed to adduce any evidence of his ability to refinance the existing mortgages to locate an amount to pay out the Wife. Counsel submitted that the sale of the Property A Property would not attract capital gains tax[175].
[175] Transcript T141:35-142:2.
I have considered the above matters and have determined that in the event of a default sale, that the Property A Property is to be sold.
There are otherwise no other factors, which have not been referred to, that are required to be taken into account.
Section 75(2)(p) the terms of any financial agreement that is binding on the parties to the marriage;
This is not a relevant consideration.
Section 75(2)(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage;
This is not a relevant consideration.
Conclusion as to Contribution
Counsel for the Husband submitted that the Husband had contributed somewhere around 27% to 30% of the parties’ initial asset pool. He submitted that the Husband’s initial contribution was the “springboard of the parties’ wealth”[176]. It was submitted that in the context of a nine year relationship and the Husband’s significant initial contribution to the asset pool, that an adjustment in favour of the Husband of 20% would be appropriate[177].
[176] Transcript T159:13-16.
[177] Ibid. T159:16; Husband’s Outline of Case, at [7].
The Wife contended that the Husband should receive a loading of between 5% to 10% on the basis of the Husband’s greater initial contribution[178].
[178] Wife’s Case Outline, at [5], s.74(4)(a).
I have taken into account the above matters and I am satisfied that there should be an adjustment in favour of the Husband of 10% on the basis of his initial contribution to the parties’ assets.
Having considered the matters referred to in this judgment and the submissions of Counsel for the Husband and the Wife, I consider that the contributions of the Husband and the Wife to have been equal during the relationship and that their contributions should be assessed at 50% each. Taking into account the Husband’s greater initial contribution this would yield an assessment of 60% to the Husband and 40% to the Wife.
Conclusion as to Future Needs
Counsel for the Husband submitted that there should be an adjustment for the Wife of 10% for future needs[179].
[179] Transcript T159:32-33.
Counsel for the Wife submitted that the Wife sought an adjustment of 20% for her future needs. This was on the basis of the disparity in earning capacity between the parties and that the Wife was seeking that the Children live with her nine nights each fortnight and that they spend time with the Husband for five nights[180].
[180] Transcript T117:1-5.
Counsel for the Wife submitted that there should be an overall division of the matrimonial property, exclusive of superannuation, of 60% in favour of the Wife and 40% to the Husband[181].
[181] Transcript T149:25-27.
I have taken into consideration the above matters, including but not limited to the following:
a)The Children will be living with the Wife.
b)The young age of the Children.
c)The Wife’s modest earning capacity for the foreseeable future as she works part time to accommodate the Children’s school hours and extra-curricular activities.
d)The significant disparity in earning capacity of the parties.
I am satisfied that there should be an adjustment in favour of the Wife of 15% for s.75(2) factors.
Adjustment of Interests
As a result of the findings made in relation to contribution and future needs, I am satisfied it is just and equitable to make orders adjusting property between the parties, so that the Wife is entitled to 55% of the non-superannuation property and the Husband should receive 45% of the non-superannuation property.
In relation to the superannuation assets, the Wife sought orders that the combined superannuation entitlements should be divided equally between the Husband and the Wife. Counsel for the Wife submitted that the Wife had been significantly disadvantaged in terms of her superannuation entitlements throughout the relationship. The Wife had spent a period of some four years out of the workforce as the primary caregiver of the Children. Further, during the relationship the Husband had been having voluntary superannuation payments ducted from his salary[182]. It was submitted that if the superannuation was equalised, adjustment figure would be $196,622 in favour of the Wife[183].
[182] Transcript T155:26-34.
[183] Transcript T154:25-26.
Counsel for the Husband submitted that the superannuation the Husband had accumulated prior to the commencement of the relationship, being the amount of $137,750, should be quarantined from any superannuation split between the Husband and the Wife. If the Husband’s pre-relationship superannuation was quarantined, and the balance of the Husband’s superannuation was then equalised with the Wife’s superannuation, the adjustment figure would be $128,122 in favour of the Wife[184].
[184] Transcript T161:21-38.
Counsel for the Husband submitted that the Wife’s contributions throughout the marriage had not had any impact upon the accumulation of the $137,750 in superannuation. I was not directed to any authority in support of the Husband’s contention that quarantining the Husband’s pre-relationship superannuation was an appropriate course to pursue in the circumstances.
After considering the evidence, I accept the submissions made by Counsel for the Wife. Further, even when the Wife returns to full time employment, her earning capacity will remain significantly below that of the Husband’s earning capacity. I have therefore determined that it would be just and equitable for the Husband and the Wife’s combined superannuation to be split equally between them. I have determined the adjustment amount to be $196,622 in favour of the Wife.
Conclusion
I have determined that the division of the assets will be achieved by a division of the non-superannuation assets of the Husband and Wife as to 55% to the Wife and 45% to the Husband.
The parties agreed that the division of the assets will be achieved by:
a)The Husband retaining the Property A Property.
b)The Wife retaining the Property B Property.
c)The Husband making a payment of money to the Wife of such sum as is determined by the Court.
I have assessed the sum to be payable by the Husband to the Wife to be $377,832, being: $1,207,832 as 55% of the net asset pool of $2,196,059 less the agreed value of the Property B Property of $830,000.
As previously referred to, the combined superannuation entitlements will be divided equally between the parties.
I am satisfied that the division of property is just and equitable.
I intend to make orders accordingly.
I certify that the preceding two hundred and ninety-four (294) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 1 February 2019
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