ORFORD & ORFORD
[2020] FCCA 2463
•10 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ORFORD & ORFORD | [2020] FCCA 2463 |
| Catchwords: FAMILY LAW – Property – extremely limited pool consisting of matrimonial home and superannuation – husband only proposing $20,000 superannuation split – wife’s significant initial contribution to matrimonial home – court finding there should be division of property 75/25 in favour of the husband |
| Legislation: Family Law Act 1975 (Cth), ss.45(2), 75(2)(d), 75(2)(o) |
| Cases cited: Stanford and Stanford (2012) 247 CLR 108 Pierce v Pierce (1999) FLC 92-844 |
| Applicant: | MS ORFORD |
| Respondent: | MR ORFORD |
| File Number: | DGC 3395 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 10 August 2020 |
| Date of Last Submission: | 10 August 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 10 September 2020 |
REPRESENTATION
| Advocate for the Applicant: | Ms LaGreca |
| Solicitors for the Applicant: | Pentana Stanton Lawyers |
| Counsel for the Respondent: | Self-Represented |
| Solicitors for the Respondent: | Not Applicable |
| Counsel for the Independent Children's Lawyer: | Ms Jenkinson |
| Solicitors for the Independent Children's Lawyer: | Altavilla Family Law |
ORDERS
PARENTING ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the children W born in 2004, X born in 2008, Y born in 2015 and Z born in 2017.
The children live with the Father.
The child W spend time and communicate with the mother in accordance with her wishes.
The children X, Y and Z, spend time and communicate with the Mother as follows:
Whilst the Mother resides in Town B, New South Wales
(a)By video call each Tuesday, Thursday and Sunday from 5.30pm until 6.00pm with the Mother to initiate the call and the Father to facilitate it;
(b)By video call on each of the children’s birthdays, mother’s day, Christmas Day and Easter Sunday from 5:30pm until 6:00pm with the Mother to initiate the call and the Father to facilitate it;
(c)That the Mother be permitted to send cards, letters and gifts to the children at their home at C Street, Suburb D and the Father must pass these things on to the children and tell the children those things are from the Mother.
(d)That in the event that the Mother travels to Melbourne (and, for the duration of the COVID-19 pandemic has undertaken any required period of quarantine or isolation), the Father make the children available to spend time with the Mother as follows:
(i)On one week day from 4.00pm to 7.00pm; and
(ii)On one weekend from 10.00am to 2.00pm;
PROVIDED THAT the mother gives the father no less than 14 days’ notice in writing of the dates she shall be in Melbourne.
In the event the Mother relocates to Victoria
(e)For the first two months as follows:
(i)Each Wednesday from 4.00pm until 6.30pm;
(ii)Each Sunday from 10.00am until 2.00pm;
(iii)On each of the children’s birthdays, the mother’s birthday, Mother’s Day and Boxing day as follows:
A. If a school day from 4:00pm until 6:30pm;
B. If a non-school day from 10:00am until 2:00pm; and
(iv)Such further or other times as agreed.
(f)Following two months, as follows:
(i)Each Wednesday from 4.00pm until 7.00pm; and
(ii)Each Sunday from 10.00am until 3.00pm;
(iii)On each of the children’s birthdays, the mother’s birthday, Mother’s Day and Boxing day as follows:
A. If a school day from 4:00pm until 6:30pm;
B. If a non-school day from 10:00am until 2:00pm.
(iv)Such further or other times as agreed
That any face to face time is to be in the substantial attendance of an adult as agreed between the parents in writing and in the absence of any agreement, by a professional supervisor to be paid for by the father.
That unless otherwise agreed, changeover is to occur at the front entrance to McDonalds, E Shopping Centre, F Street, Suburb G.
The father do all things necessary to forthwith obtain a paediatric assessment in relation to the children Y and Z and follow all directions and recommendations of the paediatrician.
The mother have liberty to apply for further or other parenting orders after 12 months, PROVIDED THAT:
(a)She engage with a psychologist for a period of not less than 12 months and provides a report from the psychologist evidencing that she has attended for 12 months; and
(b)She provides a report from a psychiatrist, with such psychiatrist to have consulted with her treating psychologist, which addresses:
(i)Her current diagnosis and mental state;
(ii)Whether she has had any mental health admissions in the past 12 months; and
(iii)The impact of her mental health on her capacity to spend time with the children without the substantial attendance of another party.
That the mother provide the psychologist and psychiatrist in order 9 a copy of the psychiatric assessment of Dr H, the psychological assessments of Ms J and the Family Report.
That both the Mother and Father engage in Drug and Alcohol Counselling.
Each parent keep the other informed of their residential address and contact details.
Each parent shall notify the other of any significant illness or injury requiring the attention of a healthcare professional occurring while the children are in their care, the nature of the illness or injury, and the details of any healthcare professional attending to the children or any of them.
Each of the parents be and are hereby authorised to communicate with any healthcare professional treating the children and any coach, teacher, tutor, or other professional engaged with from time to time with the children.
The Mother and Father do all things reasonably necessary to ensure each of the parties can receive (at their own expense) copies of all newsletters, notices, photographs and other information provided by school and the Mother and Father each be registered as an emergency contact at the children's school/kindergarten.
The parties be and are hereby restrained by injunction from:
(a)denigrating, insulting, abusing, intimidating, belittling or rebuking the other parent, or doing so in the children's presence or hearing or permitting any other person to do so;
(b)discussing these proceedings with the children, or in the children's presence or hearing;
(c)allowing the child access to any documents filed in these proceedings /other court proceedings or used as evidence for the purposes of these proceedings;
(d)Consuming, ingesting or otherwise using any illicit drugs, prescription drugs other than in accordance with the prescription, or over the counter medications other than in accordance with the directions appearing on the medication for 48 hours prior to any time the children spend with them, or during any such periods of time;
(e)requesting that the child pass messages on to the other parent or party;
(f)The order appointing an independent children’s lawyer be discharged.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY ORDERS
That the Respondent husband pay to the wife $57,786 within 90 days of these orders being made.
That in the event that the whole of the payment in Order 18 has not been made by the date, the real property be forthwith sold altogether out of Court (“the sale”) pursuant to orders 20 to 23 inclusive.
The parties shall forthwith do all such acts and things and sign all such documents as may be required to put the real property situate at C Street, Suburb D, Victoria on the market for sale by private treaty with a licensed estate agent to be nominated by the president of the REIV with the reserve price to be nominated by the agent.
That the parties equally share the costs of marketing and sale for the real property.
Upon the settlement of the sale of the real property, the proceeds of sale will be applied:
(a)First, to pay all costs, commissions and expenses of the sale:
(b)Second, to discharge the mortgage and any other encumbrance affecting the real property;
(c)Thirdly, to pay all outstanding council rates, water charges and fees; and
(d)Fourth, the balance to be paid as to 75% to the husband and 25% to the wife
Pending the sale:
(a)The Respondent have the sole right to occupy the property;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders;
(c)The parties be equally liable for the maintenance of the property including mortgage, council rates, water charges and fees associated with the property; and
(d)Neither party shall further encumber the real property without the consent in writing of the other party
That in accordance with Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to Mr Orford (“Mr Orford”) from his interest in the Super Fund K Member No. ... (“the Fund”), the Trustee shall pay to Ms Orford (“Ms Orford”) an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $11,113 and there is to be a corresponding reduction in the entitlement that Mr Orford would have had but for these Orders.
That having been accorded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the Fund.
That this Order has effect from the operative time.
The operative time for this Order is four (4) business days after the date of service of a sealed copy of the Order upon the Trustee of the Fund.
Liberty to either party or the Trustee of the Super Fund K to apply to implement this Order.
That until the happening of any of:
(a)the transfer or “rolling over” into another superannuation fund of the payment split created by this Order; or
(b)Ms Orford satisfies a condition of release and is paid the payment split which was created by this Order.
Mr Orford 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 other act or thing which would render any part of his interest in the Fund a “non splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the Trustee of the Fund give effect to this Order.
The parties have liberty to apply in respect of implementation of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Orford & Orford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 3395 of 2013
| MS ORFORD |
Applicant
And
| MR ORFORD |
Respondent
REASONS FOR JUDGMENT
This is a parenting and property dispute between a couple who were in a relationship, with some separation, of 15 years. The parenting issues were dealt with on submissions alone by consent of all the parties, and the property aspect of the case was conducted once the independent children’s lawyer had withdrawn.
For the reasons that follow, I am going to make parenting orders as sought by the independent children’s lawyer, and in respect of property, I will order a 75/25 division in favour of the father.
Agreed or Uncontroversial Matters
The mother was born in 1980 and the father was born in 1979. They have four children – W, born in 2004, X, born in 2008, Y, born in 2015, and Z, born in 2017. Additionally, the mother has another child, L, born in 2006, during an approximately two-year period of separation from the father from 2004 to 2006. L lives with his father in Town B and appears to have little contact with his mother.
The parties commenced cohabitation in or about 2003, married in 2012, and separated, according to the mother, in around November 2018. They continued to live under the same roof until 22 June 2019, when the father took out an Intervention Order against the mother, the effect of which was to remove her from the family home.
Both sides make significant assertions as to family violence allegedly perpetrated upon them by the other. Very unfortunately, the mother has suffered from significant mental ill health over time, the most recent manifestation of which was an attempted suicide in late 2019, following which she was hospitalised for two weeks. She moved to be with her family in Town B on 8 January 2020, and has not spent time with the children since.
The Parties’ Proposed Parenting Orders
In her further amended initiating application, filed on 5 August 2020, the mother proposed that the children live with the father. She proposed alternate regimes depending on whether she lives in Town B, NSW or in Victoria. If in Town B, she essentially seeks video calls three times a week, permission to send cards, letters and gifts, and should she visit Melbourne, spend time three hours on one weekday and four hours on one weekend. If she returns to Victoria, she proposes the introduction of steadily increasing amounts of time and, should she obtain a report from her treating psychologist that gives her a clean bill of health, so to speak, she spend a far more significant time. The mother proposes that her time be conditional upon her engaging with a number of mental health and support services.
The father, in his response to a prior amended initiating application, proposes that W and X spend time with the mother in accordance with their wishes, and that Y and Z spend supervised time at a contact centre in Suburb M or Suburb N.
The Parenting Submissions Made By The Parties – The Independent Children’s Lawyer
What follows is taken from my notes.
Counsel submitted that the children ranged in age from 16 to 2-and-a-half. They had lived with their mother most of their life. They were placed with the father, and have stayed there. The mother had a significant difficulty in late 2019, attempted to take an overdose of Seroquel, and was hospitalised. This was not the first such occasion. There have been several. The mother has suffered from post-natal depression and from post-traumatic stress disorder. She also has conversion disorder, which is similar to a stroke. Counsel referred to the report of Dr H in this regard. There are historical allegations of drugs and violence. The Independent Children’s Lawyer has no concerns about drugs, but Dr H was concerned that there might be a relapse. The mother does have mental health problems. There was no mention of these in her trial affidavit. She has been moved by her family to Town B and lives with her sister. Her mother is also in Town B, and she has a good support network. The mother has another son in Town B who does not live with her. The mother had given her goals in life to the family reporter, which includes moving to Victoria. She also, however, included the children living with her in Town B. Her capacity to care for the children were this to be the case was questionable. Counsel proposed daytime only, should the mother be in Melbourne. Because of her overdose, this time should require substantial attendance. The father has agreed he will pay a supervisor if need be. The older child does not seek time with the mother.
There are not significant risks for the children with their father. The Independent Children’s Lawyer opposed overnight time and referred to the report of Ms J. The mother has vulnerabilities. The issues include her mental health and support. She has been assessed as high risk. Dr H’s report was before the overdose. It is still early days for the mother’s treatment. She would have less support should she return to Melbourne. Counsel could not say when time should move to unsupervised or overnight. She referred to the DHHS report, which was to the effect that the children were satisfactorily cared for with the father. There has been no face-to-face time since the mother went to Town B. There is no dispute they love the mother and wish to see her. When the mother has taken the necessary steps to prove her mental health, further progression should be considered. Counsel did not support a self-executing order that provided for the treating professionals to make any assessment as to risk. This was a matter for the Court.
Submissions by the Father
The father said that the children were always in joint care of the parents. They were only with the mother when they were separated between 2014 and 2015. He complained that he worked and the mother had not.
The father tendered as exhibit R1 a report from P Early Learning dated August 2020, which suggested that Y and Z had apparently improved while in the father’s care.
Submissions on Behalf of the Mother
Counsel took issue with the proposition that the mother’s attempted suicide was not in her affidavit. It was at paragraphs 25 to 31 of her affidavit, sworn 30 July 2020. The mother was the primary carer, but became homeless. The mother has been engaging with professionals. She admits her mental health vulnerabilities arising out of sex abuse and PTSD. The current intervention order was contested and was due to be heard in September 2020. Counsel referred to the report of Dr H at paragraph 77, which said supervision was not necessary. She noted that the report of Ms J had suggested that the risk would decrease over time. There were no concerns with the paternal care of the children. The father was, however, clearly involving W in court matters. In the DHS case plan, W had referred to the property case. There should be an order for paediatric assessment. The mother’s proposal was modest and would seek a slight increase after two months. There were difficulties arising from the COVID emergency.
Counsel for the Independent Children’s Lawyer in reply emphasised that the Independent Children’s Lawyer would require 12 months’ engagement by the mother with treating professionals, even if she did return to Victoria.
The Report of Dr H
Dr H’s reports are annexed to his affidavit, sworn 3 September 2019. I note that at paragraph 52, the father acknowledged verbal abuse between the parties. While I obviously have regard to the entirety of the report, the relevant passage is at paragraph 70 to 77 where Dr H set out his opinion and recommendations. The report reads:
Ms Orford suffered from a major depressive disorder including a severe episode with psychosis in 2014 which has not recurred.
She currently presents with ongoing depression in the context of losing custody of the children and the recommendations to increase her medication and continue psychological treatment are sound.
In my opinion, there does not appear to be a need for ongoing antipsychotic medication.
I am unable to confirm a diagnosis of bipolar disorder.
I note the history of methamphetamine use and the significant dispute between the parties in relation to the extent of her usage. I note the positive drug screens in recent times and Ms Orford’s claims that she was drugged. I find it more likely than not that there has been problematic methamphetamine use that if resumed would negatively affect her parenting capacity. In my opinion, her psychologist could address this issue including the risk of relapse and harm minimisation and refer to a specialist drug and alcohol service if deemed necessary.
I find that her current level of depression requires improvement in order to ensure that it does not adversely affect her parenting capacity, and the difficulty is that the main trigger, the lack of contact with the children, is the main barrier to further improvement.
Given that she is due to have a medication increase, I would anticipate a period of several months to allow the increased medication dose to take effect and would recommend that her general practitioner monitor her clinical progress and ensure that her depression improves.
I do not find, however, that the level of her current depression necessitates supervision of her contact.
It should, of course, be remembered that this report predated the serious episode in late 2019.
The Family Report of Ms J
It should be noted that an earlier section 11F report by family consultant Q in July 2018 has, in my view, been somewhat overtaken by events, although I noted that at the time of that report, both parents appeared to me to admit past use of ice.
Ms J’s report is appended to her affidavit, sworn 19 November 2019. It is a comprehensive assessment of each of the parents. I obviously have regard to all of it, but would note the following. At paragraph 4, Ms J said:
Ms Orford’s thought processes were disorganised at times, and her narrative was difficult to follow at times. Information provided was frequently new, embellished or inconsistent when compared to collateral information, which raised concern regarding the validity of her responses. She presented with negative bias regarding Mr Orford, a lack of critical self-reflection and elevated impression management.
Ms J reported Ms Orford’s narrative of the relationship, which included alleged assaults on her by Mr Orford and drug abuse. The father had been jailed for six months in about 2004. I note that at paragraph 23, Ms J noted that the mother had experienced post-natal depression and a psychotic episode after the birth of W, and was voluntarily hospitalised for one month in 2012. The report noted the litany of complaints that the parents make about each other. At paragraph 39, the report noted.
Ms Orford denied ever experiencing suicidal ideation but said she self-harmed by cutting in 2007 in the context of losing custody of her son.
Paragraph 42 of the report said:
Ms Orford presented with personality difficulties including dichotomous thinking, a lack of critical self-reflection, impulse control issues, stress-related paranoid ideation and disproportionate emotional responses. Retrospectively, she perceived everything about Mr Orford and their 16-year-on-off relationship as negative and she did not acknowledge any responsibility for difficulties within their relationship though they married in 2012 and had four children together.
On page 53 of the affidavit, under the heading Summary, the report noted:
Ms Orford’s parenting needs outweigh her parenting strengths by a large margin and may have a negative impact on her parenting capacity. They include: her mental health issues; past use of ice; the lack of social and family support nearby; the problematic relationship with Mr Orford; her current housing situation; a history of childhood abuse; health issues as a result of conversion disorder; her unemployed status; and a large number of children, who are also presenting with difficulties, demand extra parenting capacity. It is likely that the children are sensing, reflecting and responding to Ms Orford’s elevated depression and anxiety. No basic parenting skills deficits have been identified.
Based on the balance of strengths and needs on the FSNA, the likelihood that Ms Orford’s children will be exposed to neglect or abuse in her care was rated as High.
I note that Ms Orford was evasive about her substance abuse, but acknowledged using ice with Mr Orford from 2012 to 2013 (paragraph 50). At paragraph 51, the report noted:
Mr Orford has made allegations of violence by Ms Orford which she has denied. Statements by the children indicate she has been responsible for violence and that she and Mr Orford engaged in verbal conflict to which the children were exposed. Insufficient evidence has been provided to the assessor to suggest that there is a risk of ongoing violence by either parent provided that parental contact and communication are well-managed to prevent the children from being exposed to conflict.
Based on the balance of strengths and needs on the FSNA, the likelihood that Ms Orford’s children will be exposed to neglect or abuse in her care was rated as High. No concerns have been raised in relation to Ms Orford’s basic parenting skills. The risk would likely increase if her health declines, her ice use relapses, or she relocates to Queensland. The risk will likely decrease if she engages in appropriate support to treat and monitor her difficulties.
The recommendations at page 36 of 53 of the report would require the mother to engage with a psychologist for treatment of personality difficulties and cognitive behavioural therapy, engage with a drug counsellor to support drug relapse prevent, complete a hair follicle drug screen, have regular appointments with her psychiatrist, and that the children’s time with their mother initially involve two rather than four children at a time. The report recommended that Mr Orford not supervise time due to the heightened risk that the children would be exposed to conflict.
The report on the father noted the father’s excessive drinking between the ages of 18 and 25, and his criminal and IVO history associated with drinking in Town B (paragraph 7). I note that at paragraph 23, the report recorded:
Mr Orford was open about past substance use, criminal offending and violence. He acknowledged mutual verbal conflict with Ms Orford but denied ever being physically violent towards a female. He denied having a current drug or alcohol problem, or selling drugs, as has been alleged.
At page 44 of 53, under the heading Critical Items, the report relevantly asserted “Sometimes my temper explodes and I completely lose control.” “I’ve tried just about every type of drug, I have trouble controlling my use of alcohol. My drinking has never gotten me into trouble (false response).” A number of other false responses were noted, including his suggestion he had never used illegal drugs. I note that at paragraph 34 on page 46 of 53, the report recorded
He said he used ice he regularly on weekends over a period of 5 to 10 years. He said he last used in February on one occasion and a long time before that. Mr Orford reported that his drug screens have been clear. He is required to complete random drug testing at work.
This last observation may be open to some question in view of text amended to the mother’s affidavit material. Nonetheless, at page 50 of 53 under the heading Summary, the report noted:
Mr Orford’s parenting strengths outweigh his parenting needs. However, his parenting needs may have a negative impact on his parenting capacity. They include: past drug and alcohol misuse and related antisocial behaviour; a problematic relationship with Ms Orford; and the increased demand on parenting capacity caused by the children’s difficulties and the large number of children in his care. No basic parenting deficits have been identified. Based on the balance of strengths and needs on the FSNA, the likelihood that Mr Orford’s children be exposed to neglect or abuse in his care was rated as Low.
The report went on to make recommendations designed to assist Mr Orford in terms of engaging with a drug and alcohol counsellor or psychologist, and that he complete a hair follicle drug screen, and that he not supervise time with Ms Orford.
The Family Report of Ms R
This report was dated 3 August 2020. It was not formally tendered to the Court, and no party made any submissions about it. I note that the report had its limitations because of the COVID-19 restrictions. I note that W was clear that she did not wish to spend time with the mother at the present time, and that X did not seek increased time in the care of his mother. The report went on to recommend that if the mother remained in Town B, consideration be given to FaceTime three times per week, and when possible, FaceTime in Melbourne during the daytime at planned times. If Ms Orford returned to Melbourne, there should be an opportunity each week for the children to spend planned time in maternal care with consideration given to the assistance of a friend, Ms S. The report noted that W’s time should be encouraged, but subject to her wishes, given her age. There are a number of ancillary recommendations to address various difficulties experienced by the children.
It should also be noted that I have had proper regard to the report of the Department of Health and Human Services, dated 13 August 2019, which only goes to confirm the rather sorry picture of violence in the parental home, including, according to W, at least one assault by the mother, and the parties’ sustained use of drugs over extended periods of time.
Conclusion on the Parenting Dispute
It should be remembered that the mother’s ill health and mental frailty are of course matters properly the subject of compassion and not excoriating criticism. Nonetheless, this case is concerned first and last with the best interests of the children, and the mother’s mental health difficulties and her probable difficulties associated with drug use stand as a very formidable difficulty, as the Independent Children’s Lawyer correctly submits.
In the end, my conclusion can be stated shortly. In the circumstances where the father’s care of the children is not the subject of meaningful or significant challenge, and the mother faces the very unfortunate and significant deficits that she does face, it is immediately apparent that the orders sought by the Independent Children’s Lawyer are those that are in the best interests of the children. Given the context of the mother’s difficulties, which I have paraphrased in the expert reports above, this conclusion is as inescapable as it can be shortly expressed. There will be orders as sought by the Independent Children’s Lawyer.
The Property Issues
As with the parenting matters already dealt with, I do not propose to traverse the parties’ affidavit material at all. (The affidavits in fact say little about property matters in any event).The dispute between the parties is in truth a very narrow one, and it is best understood by reference to the submissions made in the evidence given at court.
The Opening and Evidence of the Wife
Counsel submitted that the property pool consisted of the former family home and superannuation. It was a 15-year relationship and the only liability was a mortgage. Counsel submitted that there was no equity in the parties’ cars.
The mother was called and adopted her affidavits as true and correct.
In evidence-in-chief, the wife described earlier proceedings in 2014. She said she had been in refuges several times during the relationship and that she was always the primary carer. She had a house in Town B before the relationship commenced which was sold for $191,000, and a mortgage of some $18,000 to $19,000 was paid out of that. The balance of approximately $170,000 went into the deposit on the new house and furniture. They paid $20,000 to solicitors in court actions involving L.
The husband, Mr Orford, elected not to put any questions to Ms Orford.
In re-examination by leave, the mother referred to the purchase of furniture and custom-made blinds. They spent money on lounges and beds for the children. The purchase price of the matrimonial home was $321,000, and she was not sure of the mortgage.
The Opening and Evidence of the Husband
The husband indicated in his opening that he would like to stay in the former matrimonial home with the children. He said he had emails from the mother saying she did not want to sell. He cannot refinance, because he is on a single parent pension. He offered the wife $20,000 out of his superannuation.
In evidence-in-chief, the husband adopted his affidavits and financial statement as true and correct. The mortgage is now up to $56,000. The wife had undertaken the finance side of it. There is a tax debt which has been generated while they were together, and he has paid $30,000 of this. He said his tax debts started in 2009 when he started subcontracting, and stopped in 2013.
Under cross-examination, the husband said that he had not looked at the documents from the NAB, except briefly. T Supermarket is a supermarket near his house. U Petrol Station is a petrol station. Coles could be groceries or cash out. He conceded that the property in Town B was sold in about 2008 to 2009. It may have been the year before they bought the new property in Suburb G. They had rented in Suburb V for close to two years, and bought the Suburb G property in 2009. His Super Fund K was worth $41,116.
When it was put to him that he was suggesting the mother receive no funds, Mr Orford said that the wife was entitled to something. He had found out she had been in receipt of single parent benefits since 2009. He thought she had minimal money. She uses two names. She also calls herself Ms AA. There was one separation during the relationship. He accepted she was on Centrelink. There were some separations. This was why she said separation was in November 2018 and not June 2019. She was receiving single-parent statements. He did not expect her to come down to Victoria. He would expect her to have a home for the children and beds. He said the mother could access superannuation because of the COVID regulations.
In re-examination, Mr Orford said that the funds left over after the sale of the Town B property were used to pay off lawyers and cars. He denied the wife had bought any blinds or lounges.
Final Submissions by Counsel for the Wife
Counsel submitted that a property adjustment was just and equitable. Both parties had contributed to the relationship and the wife had a pre-existing property. This was sold and constituted a springboard. There are ongoing contributions by both parties. The husband paid the mortgage and utilities, and the wife paid for the school uniforms and groceries. The wife’s capacity for employment is limited. The father has all the children. The mother does not see the current circumstances as final, but if I understood the matter, it was put that she accepted that the Court would have to deal with the matter as it stands.
There should be a loading of 10 per cent to the father for the care of the children. Pursuant to section 75(2)(d), the mother needs a home and will have to pay rent and bond. Both parties are on pensions. This was a 15-year relationship in which contributions were equal. It was submitted that the Court should, pursuant to section 75(2)(o), consider the mother’s need to relocate. She also needs to travel to Town B to see L. It was submitted that there was no evidence of any tax debt on the husband’s part. The mother’s affidavit values the property and assets.
The mother’s credit card debt was post-separation. The mother seeks a realignment of superannuation 40-60 in the husband’s favour. She seeks the sale of the matrimonial home, as the father cannot pay her out. She seeks the 40 per cent adjustment set out in her further amended application, with the balance to the husband.
The Final Submissions of the Husband
The husband asserted that the wife had the assistance of WAYSS, and this was a solution to all the wife’s problems. He said it was not his fault the wife left. She has not paid the mortgage or utility bills. She has received fraudulent payments from family benefit. WAYSS will help her and her medical expenses. He wished he could refinance, but he cannot. $20,000 was the best he could do.
It should be noted that despite the somewhat circumscribed nature of the way the case was conducted, the picture that emerged from the husband, which is well-mirrored in his affidavits, was one of unremitting criticism of the mother on every front. His submissions completely misunderstand the role of WAYSS in any event.
The Documents Tendered
Relevantly, exhibit A2 is a series of records for bank accounts held by the mother (in her maiden name of Ms AA) from time to time, with the NAB. As I understand it, they were designed to show the payment type of the then-home loan in a sum of $102,000 in 2009. They were also designed to show that both parties made financial contributions – although, in my view, the accounts are more equivocal than that. They do show the wife receiving Australian Government families payments from time to time, but in my view, it is not possible to distrain whether or not these were appropriate payments.
I note that in late 2009, there is a receipt of some $59,000 which is almost immediately withdrawn. I would infer from these matters that that must have been at least part of the net funds from sale from the former home in Town B.
Exhibit A3 is a kerbside appraisal, it would appear, of the former matrimonial home, which values it in the range to $500,000 to $600,000.
Exhibit A5 is a notice of assessment for the husband for the year ended 20 June 2017, showing a credit of in excess of $4,200, a further notice of assessment for 2016 showing a credit of $6,300, and a further debit for the year 2010 in the sum of $8,300.
Exhibit A6 is a document from Super Fund K showing a balance on the part of the husband as at 13 April 2020 and $40,116.81, and exhibit A7 is a superannuation account with Super Fund BB in the sum of $8,888.70 as at 31 March 2020.
Stanford v Stanford (2012) 247 CLR 108 (“Stanford”)
The Court’s first task is to ascertain the legal and equitable interests of the parties and determine whether a property division is appropriate. In this matter, however, as the High Court commented in Stanford, the way in which the parties adjusted and conducted their financial affairs during their marriage has radically altered. The wife seeks a property adjustment. The husband in one sense almost does not seek a property adjustment, but acknowledges that the wife should get something. In these circumstances, it is plain that it is just and equitable that there be a property adjustment between the parties.
The Pool
I agree with counsel for the wife. The only meaningful assets these parties have are the former matrimonial home and their superannuation. The former matrimonial home has a value of somewhere in the range of$500,000 to $600,000, although I note the wife assets $530,000 in her final affidavit. The husband’s valuation in his 2019 financial statement was $600,000. The parties’ bank accounts have no significant amounts at all, and both the husband’s cars are encumbered by loans worth as much as the actual vehicles themselves. The wife’s credit card debt is plainly a post-separation debt.
The husband has superannuation of $41,116.81(Super Fund K) and the wife $8,888.70 (Super Fund BB)
The mortgage is $318,587 (wife’s trial affidavit).
The husband has not proved any tax debt on his part. His evidence was unconvincing and is flatly contradiction by exhibit A5.
Contributions
The wife undoubtedly owned a property in Town B before she ever met the husband. That was sold in 2009 and at least $60,000 or thereabouts was left over in equity following the payment out of the mortgage. Although the parties have provided some bank records going back to 2009, I have nothing to show what the value of the mortgage was on the matrimonial home when it was first purchased. I accept the wife’s assertion that it was put into the husband’s sole name to obtain the first home owners grant. The assertion was not challenged. The total purchase price appears to have been $371,000. On any view of the matter, however, it is plain that the wife did make a significant contribution, albeit now some 11 years ago, by providing the funds which provided the deposit, which may in fact have been greater than the bank records reveal, but enabled the parties to purchase the only asset they really have.
Throughout the remainder of the relationship, and indeed prior to the move to Melbourne, the wife was the primary carer of the children and the husband worked. Although he has asserted vigorously that he was an equal carer for the children, this is part of his overarching condemnation of the wife on every front, and ones more to his vituperative view of her than in my view is objectively established. The wife was not cross-examined and although this was an understandable forensic decision made by the unrepresented husband, the fact is that her affidavit material as to property has not really been the subject of a significant challenge.
The husband has of course continued to have the children in his care since separation and has paid the mortgage and utilities since.
Taking all these matters into consideration, I would assess the parties non-superannuation contributions as being 55 per cent to the wife and 45 per cent to the husband. As the case of Pierce v Pierce (1999) FLC 92-844 makes plain, this question of initial contributions or springboards is not a question of the erosion of the value of the initial contribution. Rather, it is a matter to be calibrated in the total outcome. Although obviously the parties may not have ever owned a home at all without the significant input of the wife, the fact is that that contribution is now some 11 years ago. In my view, taking all these matters together, a 55/45 contribution assessment in favour of the wife is appropriate.
Section 75(2) factors
The wife’s capacity to work is obviously going to be significantly impacted by her various health difficulties. The father likewise will find it very difficult to work for many years to come. The two younger children will require his care for many years. I have not felt it necessary to traverse the various difficulties the children have, but the parent who is the primary carer of these children will face a daunting task, on any view of the matter. Indeed, I have no doubt it was a daunting task for the mother while they were together.
In all the circumstances, I would award the husband a 30 per cent loading in respect of future needs. The parental task he faces for many years is indeed a significant and daunting one.
The parties’ superannuation must have been almost entirely accrued during the relationship, and in my view, a 40/60 split as the wife proposes is entirely reasonable.
Just and equitable
The husband in effect says that he will agree to a superannuation split because that is all he can afford. That is of course true, and I can readily understand his methodology. His position, however, is effectively that the wife receive nothing out of the non-superannuation pool. In circumstances where the wife contributed the funds that enabled them to even own the property, and this was a 15-year relationship in which the parties’ contributions were otherwise equal, and where the wife has significant future needs of her own, it is immediately apparent that this cannot be a just and equitable outcome.
It is true that this is a relatively small pool. It is also true that it may be very difficult for the father to re-establish himself in the event that the matrimonial home is sold. Nonetheless, the wife has bona fide financial needs of her own. I do not think it would be just and equitable to give the husband the outcome that he seeks.
I note that the husband cannot pay the wife out. I have however drawn orders which will at least give him the opportunity to see if he can raise the necessary funds to pay out the wife. This of course requires the Court to fix a figure that the husband should pay. The curb side valuation has wide range. The father’s $600,000 estimate is a year out of date in circumstances where I take judicial notice of the fact that housing prices have declined somewhat. These parties do not have the money to obtain a sworn valuation in any event. I propose to adopt the figure of $550,000 as the notional value for the property. It is the midpoint of the range set by the curb side report and exceeds the mother’s most recent affidavit evidence. It is not a perfect result, but it should be noted that the overarching figure that the husband will be required to pay, will in my view will be figure that is in all the circumstances just and equitable outcome in any event. In default of his doing so within 90 days, the matrimonial home will be sold and the net proceeds will be divided 75/25 in favour of the husband.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 10 September 2020
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Consent
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Procedural Fairness
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Injunction
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Remedies
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Costs
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