Oa**Connell and Oa**Connell
[2008] FMCAfam 661
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O'CONNELL & O'CONNELL | [2008] FMCAfam 661 |
| FAMILY LAW – Parenting orders – substantial and significant time – consideration of parents living in former family home week about – division of property 60/40 in favour of wife – husband to retain former family home. |
| Family Law Act 1975, ss.65DAA(1), 65DAA(2), 65DAA(5), 75(2), 79(4) |
| Clauson and Clauson [1995] FamCA 10 (3 March 1995) |
| Applicant: | MS O'CONNELL |
| Respondent: | MR O'CONNELL |
| File Number: | MLC 13096 of 2007 |
| Judgment of: | Turner FM |
| Hearing dates: | 21, 22 & 23 May 2008, 5 June 2008 |
| Date of Last Submission: | 12 June 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Indovino |
| Solicitors for the Applicant: | Jane Baldwin |
| Counsel for the Respondent: | Mr Taghdir |
| Solicitors for the Respondent: | Tehan George & Co |
| Counsel for the Independent Children’s Lawyer: | Ms Wiener |
| Solicitors for the Independent Children’s Lawyer: | Bowlen Dunstan & Associates Pty |
ORDERS
Children
That all parenting orders be discharged.
That the children of the marriage:
[A] born in 1996,
[B] born in 1998,
[C] born in 2001, and
[D] born in 2004
live with the mother.
That the parties have equal shared parental responsibility for the said children.
That the father spend time and communicate with the children as follows:
(a)for a period of 3 months from the date of the making of these orders:
(i)each alternate Saturday and Sunday from 10am to 5pm;
(ii)each alternate Thursday from 3.30pm (or the conclusion of school should it not be 3.30pm) to 7.30pm;
(iii)as otherwise agreed between the parties;
(b)at the expiration of the time referred to in 3(a) hereof and upon the father completing the post separation parenting coursing referred to in order 14 below:
(i)each alternate week from after school Friday to the commencement of school Monday;
(ii)from after school each alternate Thursday to the commencement of school Friday;
(iii)one half of each school term holiday period as agreed, in default of agreement for the first half in even numbered years and the second half in odd numbered years;
(iv)for 2 weeks during the long Christmas vacation at such times as may be agreed and in default of agreement from 10am Boxing Day to 10am 8 January in even numbered years and from 10am 8 January to 10am 22 January in odd numbered years;
(v)from the 10am to 5pm Father’s Day should same not be a day when the children are with the Father, provided that his time be suspended from 10am on Mother’s Day should that be a day when the children are with him;
(vi)on Christmas Day from 10am Christmas Eve to 10am Christmas Day in odd numbered years provided that the children will be with the mother from 10am Christmas Day until 10am Boxing Day in odd numbered years;
(vii)from 10am Christmas Day to 10am Boxing Day in even numbered years provided that the mother will have the children from 10am Christmas Eve until 10am Christmas Day in even numbered years;
(viii)on the children’s and father’s birthdays from the conclusion of school until 7.30pm should the relevant birthday fall on a weekday and from 10am to 2pm should it fall on a weekend or holiday, provided that should the children’s or the mother’s birthdays fall at a time when the children are with the father, then the mother shall have them from after school until 7.30pm should the relevant birthday fall on a weekday and from 10am to 2pm should it fall on a weekend;
(ix)as otherwise agreed between the parties from time to time.
Each party be at liberty to telephone the children or any of them at reasonable times when they are with the other party.
For the purpose of changeovers, other than changeovers which occur at the children’s school, the party with whom the children are residing with will deliver them to the other party at the commencement of their time with the other party and that party shall return them to the first parent at the conclusion of such time.
That each party at all times keep the other advised as to their landline and mobile telephone numbers and their residential address.
Each party ensure the children attend school and their extra curricular activities.
Each party do all such things as may be required to ensure that each of them receive copy of all school reports, notices and like matters and each party be at liberty to attend all parent teacher and like interviews and any sport, social and other activities which parents normally attend.
Each parent forthwith notify the other of any illness or accident regarding any of the children.
The parties to use a communication book to advise the other regarding any matters relating to the children and such book to travel with the children.
Each of the parties their servants and agents be restrained by injunction from denigrating, belittling or criticising the other in the hearing or presence of the children.
Each of the parties their servants and agents be restrained by injunction from physically disciplining the children.
The father to attend a post separation parenting course as nominated by the independent children’s lawyer and to provide proof of completion of same to the solicitor for the mother.
The children to attend counselling at [X].
The independent children’s lawyer to explain the meaning of the orders to the children as soon as practicable after the making of the orders.
The independent children’s lawyer to be discharged 3 months from the date of the making of the orders.
Liberty to each party to apply.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 the Court certifies that it was reasonable for the parties to employ an advocate to appear in the proceedings.
Property
The net assets are to be divided 60/40% in favour of the wife:
(a)The husband is to pay the wife the sum of $109,460; and
(b)The husband is to repay the outstanding balance of $3,032 on the loan from the Commonwealth Bank.
(c)Both payments are to be made by 22 August 2008.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B(B), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym O’Connell & O’Connell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 13096 of 2007
| MS O'CONNELL |
Applicant
And
| MR O'CONNELL |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties in this matter were married in 1998 and separated on
15 December 2006.
Since separating, the husband has continued to live in the former matrimonial home at Property R, while the mother has moved between five residences. She is now renting a home.
There are four children of the marriage: [A] born in 1996; [B] born in 1998; [C] born in 2001; and [D] born in 2004.
Parenting orders were made by the Court on 30 January 2008 including orders as follows:
“9.That the Husband and the Wife and his/her servants and agents, be and are hereby restrained by injunction from abusing, insulting belittling, rebuking or otherwise denigrating the Husband/Wife to or in the presence or hearing of the said children, or any of them and permitting any other person so to do or in the presence of hearing of the children.
10.The parties establish a communication book in which they will enter the important information concerning the welfare of the children and provide book to the other parent at the commencement of each period of residence with the other parent.
11.Each parent retains parental responsibility for the children.
12. That the children, [A] born in 1996; [B] born in 1998; [C] born in 2001; and [D] born in 2004 spend time with the Husband and Wife as follows:
(i)Each alternative week during the school term from conclusions of school on Friday until the conclusion of school the following Friday and the children to spend time with the Wife commencing Friday, 1 February 2008;
(ii)That the parent spending time with the children ensure that [B] attend her gymnastics class during Friday and Tuesday morning;
(iii)Or as otherwise agreed by the parties.
13. The child [D] born in 2004 live with the wife and spendi time with and communciate with the Husband as follows:
(i)Each alternate weekend during the school term from the commencement of school on Friday until the commencement of school on Monday;
(ii) Each alternate Thursday during the school term from the commencement of school on Thursday until the commencement of school on Friday;
(iii) Or as otherwise agreed by the parties.”
By amended application filed on 28 April 2008 the wife seeks orders that the existing parenting orders be discharged and that new parenting orders be made, plus an order that the former matrimonial home be transferred to her.
The matter was heard by the Court on 21, 22, 23 May and 5 June 2008 with Mr Indovino for the Applicant, Mr Taghdir for the Respondent and Ms Wiener for the Independent Children’s Lawyer (“ICL”): the Court reserved its decision on 5 June 2008.
Pursuant to an order of the Court on 5 June 2008 each party and the ICL has filed a schedule setting out the precise orders they seek or recommend, including the parties’ calculation of the pool of assets and the division proposed. The husband filed an amended response on
7 May 2008 and later a schedule of the orders he seeks.The Court received a copy of correspondence from Jane Baldwin to Bowlen Dunstan and Associates Pty citing various events and suggesting that an approach be made to the Court to expedite its judgment. The Court has not had regard to the events cited in the correspondence in determining this matter. Preparations were already under way for the delivery of this judgment.
Parenting orders
There is no reason why the presumption of equal shared parental responsibility should not apply. The father and the mother both seek that order and it will be made. Where that presumption applies the Court must consider whether the children spending equal time with each of the parents would be in the best interests of the children s.65DAA(1)(a) and whether that would be reasonably practicable s.65DAA(1)(b). If the Court does not make that order it must consider whether the children spending substantial and significant time with each of the parents would be in the best interests of the children, and whether that would be reasonably practicable ss.65DAA(2)(c) and (d).
Factors to be considered in determining whether it is reasonably practicable for the children to spend equal time or substantial and significant time are set out in s.65DAA(5).
Equal time
Section 65DAA(5)(c) states:
“Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) …
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
…”
It has become quite clear during the proceedings that the parties have little capacity to communicate with each other and resolve difficulties that might arise in implementing any arrangement for equal time.
The father proposes that the former matrimonial home be retained and the children live there, with the parents alternating there week about. As the mother has not lived in the house since separating on
15 December 2006, it would be likely the children would see the arrangement as the mother coming to visit every second week and displacing the father from the home. The mother would also be like a visitor having to bring and remove her possessions each visit.Dr Wauchope prepared a report for the ICL in the matter which is attached to the affidavit of Dr Wauchope dated 20 May 2008.
Dr Wauchope also gave evidence. She was very strongly of the view that the father is unable to place the children’s emotional and psychological needs above his own, which is “the cornerstone of good parenting” (family report page 15). He makes very negative comments to his children about the mother. He is intending to prepare a video tape of the entire episode, so that others can see the injustice if he does not get what he wants. It is possible that the children will see the video and that will have negative effect on them. He also wrote words to the effect of “incompetent parent – lacks insight” on the side of his van and drove around for a few days with his children in the van. Clearly he was trying to heighten the children’s emotional involvement.
Dr Wauchope’s Report
Dr Wauchope is a consulting psychologist. Mr Taghdir was very critical of the methodology used by Dr Wauchope when questioning the children and put his criticism to her in cross examination.
The Court is satisfied that Dr Wauchope carried out a thorough and competent examination of the issues and the Court sees no reason to reject her findings. She made the following findings about the parties.
The father
All four children appeared comfortable in his presence.
The mother reported that the children are being manipulated by the father to feel guilty about not residing with him and all four children support this view.
The mother
All four children seemed very comfortable and secure in her presence.
[A] (11 years old)
[A] does not want to have to choose between his parents.
He wants to continue living with his mother and see his father on a regular basis. He said that his father often says nasty things about his mother. He confirmed that his father cries when they are leaving.
He says “that his mother does not yell and scream…and only tells them off by talking to them… and explaining what they should have done instead”. He states “that there are no set bed times or routines at his father’s house...”
[B] (9 years old)
[B] wants to live with her father and is very angry with her mother. She said almost exactly the same things as her father, but was unable to elaborate or provide any detail about specific events, which suggests to Dr Wauchope that [B] had been exposed to a great deal of inappropriate information by her father. She confirms that there are no set bedtimes or mealtimes or routine at her father’s house.
[C] (6 years old)
[C] knew a lot of information about what the parents were fighting over because her father told her.
[D] (3 years old)
[D] likes being with both her parents, and knows that her father cries when she has to go home to her mother, and gets upset when he is not there because, he told her so.
Dr Wauchope’s conclusions in her report (are set out in paragraphs 22-30 below)
On page 14 of the report Dr Wauchope concludes:
“The children are clearly feeling that they need to take sides in the conflict between their parents, with all of the children showing signs of anger, confusion, anxiousness and emotional distress…”
The children interacted with the mother in a very positive and comfortable way.
The father is sharing a great deal of inappropriate information with the children, and is in the habit of denigrating the mother to them on a regular basis.
The children feel that the father is justified in his behaviour towards the mother and themselves. The children truly fear the loss of the father’s love and acceptance. It appears likely from the children’s reports that the father is manipulating the children into being angry, aggressive and disrespectful of their mother. Dr Wauchope suggests that the father is unable to put the needs of his children above his own need for control and retribution. He “seemed more interested in placing blame…than in the actual needs of his children, or the emotional stress they are currently experiencing”. The father “has externalized the blame…onto the mother without taking any responsibility”.
The father “lacks insight into how his behaviour affects the children, and how the denigration of their mother creates in them a sense of insecurity, instability and confusion”. He is “unable to place the children’s emotional and psychological needs above his own, which is the cornerstone of responsible parenting”. The children all perceive both parents as “safe and loving figures”.
The shared care arrangement is obviously not working for the children since they are showing such clear signs of emotional distress, and their parents are unable to communicate or get along in even the most basic of ways. An arrangement whereby the children reside with one parent and spend regular time with the other is clearly going to work better for them, as it will provide them with a certainty about the amount of time they spend with each parent, which will hopefully remove them from the middle of their parents’ conflict and the resulting stability and consistency should help them to feel more safe and secure (Court’s emphasis).
The children relate well to both parents, but the father seems unable to place the children’s needs above his own, whilst the mother can.
The father lacks insight into how his behaviour towards the children and their mother, affects the children’s emotional and psychological well being. The mother seems to be able to provide the children with stability, consistency and routine, despite the difficulties she has experienced with their behaviour in recent months.It is recommended that “the children live with their mother and spend time with their father every second weekend …”, plus one night every second week.
The mother’s accommodation is not viable for the long term since she is sharing with another family (the situation has now changed as the mother is renting accommodation). The family home is problematic and less than ideal for the children as they do not have separate rooms or separate beds, and they necessarily have to live a very primitive lifestyle because of the lack of amenities (the father gave evidence that it takes 7 hours for the chip heater to heat the water for bathing, and he has commenced building a room for his son).
Dr Wauchope’s evidence
Dr Wauchope gave evidence:
·That it would be best for the children to live with their mother as she has more insight into the issues.
·The mother provides a more stable and secure environment for the children to live in.
·The father is a loving carer but the father goes too far in pushing his opinions on the children.
·The father is unstable and needs some help.
·The father is harming the children emotionally.
·The father is not likely to physically harm the children and I recommend unsupervised time with the children.
·The father withdraws his love if the children do not do what he says – that is really detrimental to their welfare.
·As to the father’s proposal that the former matrimonial home be retained and the children live there, with the parents moving in week about:
§ That is not a good idea.
§ The children need to be taken out of the parents’ conflict.
§ The house represents their father.
§ Shared parenting in that form would not work.
§ The father moving to a tent in the backyard when the mother is in the house would not work, and would cause continuing conflict.
·Clinically the father has shown signs of adversely affecting the children’s emotional wellbeing.
·It is most important thing for the children to be kept out of the conflict.
·The mother is more stable and puts the children’s needs above her own.
·The father has no insight at all into how the children are coping, or what their needs are.
·The mother supports the children having a relationship with their father, which shows that she is looking after their needs.
·The children need one stable residence with one parent, and see the other parent regularly.
·Recommend supervised contact (not overnight) until the father can show that he can refrain from involving the children in the conflict.
·Father must do a parenting course.
·The children need “individual and group therapy”.
No reason has been shown for this Court to disregard or place little weight on the observations and conclusions of Dr Wauchope.
Equal time with each parent
The Court must determine whether it is in the best interests of the children for them to spend equal time with the father and the mother.
The mother is able to provide a more secure and stable environment. She does not want the former matrimonial home sold and wants to live there with her children without the father, and for him to spend substantial time with the children.
Based on the report of Dr Wauchope this would not be in the best interests of the children as the house represents their father.
The mother living there to the exclusion of the father would therefore not result in a secure stable environment in the short term until the children became aware that it was not their mother’s fault.The impact of the children of spending half their time with their father would be detrimental to them.
This is so, even though the mother views the father as a loving caring parent. The father has threatened to kill himself and tried to hang himself although the children do not recall those incidents.
He withdraws his love to achieve their obedience.The children therefore should not spend equal time with each parent.
As the mother is able to provide a more secure and stable environment if the children live with her away from the former matrimonial home, that is what is to occur.
Substantial and significant time
Given the mother’s evidence that “the children have a meaningful relationship with their father and she hopes they will have a healthy relationship with him in the future”, this can best be facilitated if the children live with their mother and spend substantial and significant time with their father. This is what the mother proposes to the Court, and the Court finds that reasonably practicable, given that the parents both intend to keep living in the same area.
The mother wants the children to spend time with their father which means there is capacity to implement an arrangement for the children to spend substantial and significant time with the father.
The parents’ capacity to communicate with each other, and the impact of the new arrangements will be facilitated if the father and the children receive counselling.Both parents are expected to then be able to facilitate and encourage a close continuing relationship between the children and the other parent. The children want a continuing relationship with both parents.
The mother shows a responsible attitude to parenting, and it is appropriate to give the father the opportunity to do this with the benefit of counselling.The Court therefore determines that it is appropriate that the children spend substantial and significant time with their father.
The independent children’s lawyer proposes parenting orders as follows:
“1.That all parenting orders be discharged.
2.That the children of the marriage :
[A]
[B]
[C]
[D]
live with the wife.
3. That the parties have equal shared parental responsibility for the said children.
4. That the husband spend time and communicate with the children as follows :
(a)for a period of 3 months from the date of the making of these orders:,
i) each alternate Saturday and Sunday from 10am-5pm;
ii) each alternate Thursday from 3.30(or the conclusion of school should it not be 3.30)-7.30pm;
iii) as otherwise agreed between the parties;
(b) at the expiration of the time referred to in 3(a)hereof:
(i) each alternate week from after school Friday to the commencement of school Monday
(ii) from after school each alternate Thursday to the commencement of school Friday;
(iii) one half of each school term holiday period as agreed, in default of agreement for the first half in even numbered years and the 2nd half in odd numbered years ;
(iv) for 2 weeks during the long Christmas vacation at such tines as may be agreed and in default of agreement from 10 am Boxing Day- 10 am 8 January in even numbered years and from 10 am 8 January to 10am 22nd January in odd numbered years ;
(v) from the 10am -5pm Father's day should same not be a day when the children are with the Father, provided that his time be suspended from 10am on Mother's day should that be a day when the children are with him;
(vi) on Xmas Day from 10am Xmas Eve-10am Xmas Day in odd numbered years provided that the children will be with the wife from 10 am Xmas Day-10am Boxing Day in odd numbered years;
(vii) from 10am Xmas Day to 10 am Boxing Day in even numbered years provided that the wife will have the children from 10 am Xmas Eve until 10 am Xmas Day in even numbered years;
(viii) on the children's and husband's birthdays from the conclusion of school until 7.30 pm should the relevant birthday fall on a weekday and from 10am-2pm should it fall on a weekend or holiday, provided that should the children's or the wife's birthdays fall at a time when the children are with the husband, then the wife shall have them from after school until 7.30 should the relevant birthday fall on a weekday and from 10am-2pm should it fall on a weekend;
(ix) as otherwise agreed between the parties from time to time.
5.Each party be at liberty to telephone the children or any of them at reasonable times when they are with the other party;
6.For the purpose of changeovers, other than change-overs which occur at the children's school, the party with whom the presently living will deliver them to the other party at the commencement of their time with the other party and that party shall return them to the first parent at the conclusion of such time.
7. That each party at all times keep the other advised as to their landline and mobile telephone numbers and their residential address.
8.Each party ensure the children attend school and their extra curricular activities.
9. Each party do all such things as may be required to ensure that each of them receive copy of all school reports, notices and like matters and each party be at liberty to attend all parent teacher and like interviews and any sport, social and other activities which parents normally attend.
10. Each parent forthwith notify the other of any illness or accident regarding any of the children.
11. The parties to use a communication book to advise the other regarding any matters relating to the children and such book to travel with the children.
12. Each of the parties their servants and agents be restrained by injunction from denigrating, belittling or criticisicing (sic “criticising”) the other in the hearing or presence of the children.
13. Each of the parties their servants and agents be restrained by injunction from physically disciplining the children.
14. The husband to attend a post separation parenting course as nominated by the ICL and to provide proof of completion of same to the solicitor for the wife.
15. The children to attend counselling at [X].
16. The ICL to explain the meaning of the orders to the children as soon as practicable after the making of the orders.
17. The ICL to be discharged 3 months from the date of the making of the Orders.
18. Liberty to each party to apply.
19. s 65 DA(2) and 62(B) particulars to apply to these orders.”
The orders proposed by the ICL will enable the children to have a meaningful relationship with both parents. They provide for the children to spend substantial and significant time with their father.
The orders take account of the views of the children and the nature of their relationship with each parent. The mother is willing to facilitate and encourage a close relationship between the children and their father. The orders will not separate the children from their father and provide no practical difficulties or expense. The mother has a greater capacity to provide for the children’s emotional needs. The mother demonstrates more insight into the responsibilities of parenthood and her attitude to putting the needs of the children before her’s is of great significance. The orders proposed by the ICL are least likely to lead to the institution of further proceedings in relation to the children.The Court is satisfied that the orders proposed by the ICL are in the best interest of the children and accordingly makes those orders.
Property issues
The father proposes:
“11.In the event the Court Orders that the children live with the Husband as per paragraph 2 herein or shared care arrangement as per paragraph 4 herein then the Husband pay to the Wife 30% of the equity in the former matrimonial home situated at Property R to the Wife.
12. In the event the Court Orders that the children live with the Husband and the Wife as per paragraph 4 herein then the husband transfer half of his interest in the former family home, subject to both parties entering into a Deed of Trust whereby the property is held on trust for the children and is to be transferred into the names of the children equally upon the youngest surviving child attaining the age of 18 years.
13.In the event the Court Orders that the children spend time with the Husband as per paragraph 5 herein (being that they live with the mother) then the Husband pay to the Wife 50% of the equity in the former matrimonial home.
14.That the wife be responsible for the removal of any Caveat or any encumbrance that may be registered against the title to the property that had been lodged by the wife or her agent and/or that had been lodged by Victoria Legal Aid ("VLA") pursuant to an equitable charge provided by the wife to VLA against the title to the property, at her own expense.
15.That the husband be responsible for the removal of any Caveat or any encumbrance that may be registered against the title to the property that had been lodged by Victoria Legal Aid("VLA") pursuant to an equitable charge provided by the husband to VLA against the title to the property, at his own expense.”
The mother proposes:
“19. That within 60 days of the date of these orders, the Wife pay to the Husband the sum of $36,486.60 (“the payment”).
20. That contemporaneously with the payment referred to in order 18 (sic “19”) hereof:
A.The husband will:
i. Do all such acts and things and sign all such documents as are necessary to transfer to the Wife, at the Wife’s expense all his right, title and interest in the property situate at and known as Property R, being the whole of the land more particularly described in Certificate of Title Volume [Z], (“the real property”).
ii. Do all such acts and things and pay all such monies as are required to discharge any caveats or other encumbrances over the real property, including caveats lodged by Victoria Legal Aid (or it predecessors) in relation to the Husband (but excluding caveats placed by Victoria Legal Aid over the property in relation to the Wife’s legal costs);
iii. Pay out and/or refinance the Commonwealth Bank loan which is currently in the name of the Wife into his name solely with respect to the motor vehicle in his possession;
iv. Vacate the real property.
B. The Wife will:
i. Do all such acts and thing and sign all such documents as required to transfer to the Husband at the Husband’s expenses, the Toyota motor vehicle registration number [Y].
ii. Indemnify and keep the Husband indemnified in relation to all rates, taxes and like apportionable outgoings of or with respect to the real property of whatsoever nature or kind.
21.That within 7 days of the date of these orders, the Husband make available to the Wife, one half of the family photographs and negatives.
22. That the Wife retain to the exclusion of the Husband, the piano, the king size bed, the children’s beds and furniture, the generator, the battery charger and batteries, and the fire pump situate at the real property.
23.That the Husband be restrained from in any way destroying or damaging or causing any other person to destroy or damage the former matrimonial home situate on the real property, or the fittings and fixtures in the former matrimonial home or the real property.
24.That unless otherwise specified these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other of all other property, (including choses-in-action) in the possession of such party as at the date of these orders and the furniture and fixtures in the former matrimonial home are deemed to be in the possession of the Wife;
(b)Money standing to the credit of the parties in joint bank account is to become the property of the wife;
(c)Each party foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(d)All insurance policies to become the sole property of the owner named therein;
(e)Each party to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.”
The asset pool at the time of the hearing
The parties agree that the value of the home at Property R is(There is no mortgage outstanding)
$180,000Motor vehicle in wife’s name and possession
2,500
Motor vehicle in the wife’s name and in the possession of the husband
1,500Husband’s superannuation
1,465
Sub total
$185,465
Less the loan in the wife’s name on the car used by the husband
(3,032)Net
$182,433
Section 79(4) factors
Section 79(4) factors:
(a)The financial contributions to the acquisition, conservation or improvement of the property. The husband brought the land into the relationship. The property had a vacant land value of $37,500 on the 30 June 1995 (Affidavit of valuer, Rolf Imberger sworn
19 May 2008). The property has therefore increased in value to an agreed current value of $180,000 since the parties married.(b)Contributions (other than financial) to the property. Both parties have contributed their labour and skills to conserving and improving the property. During the course of the marriage neither party was in full time employment. The wife was engaged in the day to day care of the children as homemaker and parent.
The husband was also homemaker and parent.(c)Contributions to the welfare of the family. Both parties have contributed to the parenting and welfare of the family to a similar extent.
(d)The wife receiving 60% of the value of the assets will not affect the earning capacity of either party.
Section 75(2) matters
Section75 (2) matters:
(a)The wife is 32 and of good health. The husband is 49 and unwell to the extent that he has limited earning capacity.
(b)Both parties have limited capacity for appropriate gainful employment.
(c)The wife is to have the major responsibility for the care and control of the 4 children of the marriage, as they are to live with her. They will spend substantial and significant time with the husband.
(d)The wife will need to rent or by a house for her and the children.
(e)Both parties have responsibility to support their 4 children, although the wife will bear the major cost of this.
(f)The wife receives $140 per fortnight as rent assistance.
(g)The parties have not enjoyed a high standard of living and are not likely to do so in the future. However, if the husband makes a cash payment to the wife, that will enable her to continue renting or put a deposit on a house and enable him to continue living in the former family home. They both therefore should be able to maintain a reasonable standard of living.
(h)Not relevant.
(ha)The cash payment to the wife should not affect the ability of creditors to recover debts.
(j) Not relevant.
(k)Neither party has had a large earning capacity and the marriage has no effect on their earning capacity.
(l)The needs of the wife will be best protected in her ability to look after the four children, if she receives a cash payment from the husband.
(m)Not relevant.
(n)The cash payment to the wife will enable the husband to keep the property which is in his name.
(na)Not relevant.
(o)No other fact or circumstances are required to be taken into account.
(p)The wife has a loan in her name which was applied to buy the car used by the husband. $3,032 is outstanding on that loan.
The effect of order 13 sought by the husband is that if the Court orders that the children live with the wife, then the husband pay the wife 50% of the equity in the former matrimonial home, being $90,000. This is preferable to the likely effect of ordering the sale of that home.
The wife proposes by order 19 that she pay the husband $36,486, being 21% of the asset pool, and at the same time the husband transfers his title in the former matrimonial home to her. Mr Indovino relies on the decision of Clauson and Clauson [1995] FamCA 10 (3 March 1995) in support of that result. That amounts to a submission that the wife has made s.79(4) contributions and has s.75(2) factors that makes it fair that she gets 79% of the value of the assets, and the husband should therefore transfer them to her for a payment of 21% of their value.
Having regard to the fact that the husband brought the land into the marriage; and that the parties both built the house; and the wife’s parents lent her $8,000 which she brought into the marriage, and that the wife is to be the primary carer of the children, the Court finds the contributions by the parties to the asset pool have been equal.
The s.75(2) factors in favour of the wife as the primary carer of the four children are assessed at 10%.By reason of the s.79(2) the Court must not make an order unless it is satisfied that it is just and equitable to make it.
The Court considers it just and equitable that the net assets of $182,433 be divided 60/40% in favour of the wife. This requires the husband to pay the wife $109,460. (By his order 13 he proposed paying her $90,000.00). The husband is to repay the outstanding balance of $3,032 on the loan from the Commonwealth Bank. Both payments are to be made by 22 August 2008.
The Court makes those orders.
The Court certifies it was reasonable for the parties and the ICL to engage Counsel.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 27 June 2008
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