PAGET & NICHOLSON
[2016] FCCA 1059
•3 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAGET & NICHOLSON | [2016] FCCA 1059 |
| Catchwords: FAMILY LAW – Property – valuation of properties uncertain – post-separation contributions in dispute. |
| Legislation: Family Law Act 1975, ss.60A, 60B, 60CA, 60CC, 79(4), 75(2) |
| Cases cited: Tait & Dinsmore [2007] FamCA 1383 |
| Applicant: | MR PAGET |
| Respondent: | MS NICHOLSON (FORMERLY PAGET) |
| File Number: | DGC 424 of 2013 |
| Judgment of: | Judge Small |
| Hearing dates: | 12, 13 & 14 October 2015 |
| Date of Last Submission: | 14 October 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 3 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Serra |
| Solicitors for the Applicant: | McGuinness & Hosking |
| Counsel for the Respondent: | Ms McCreadie |
| Solicitors for the Respondent: | Kenna Teasdale Lawyers |
ORDERS
PARENTING ORDERS
All previous parenting orders in relation to the child X born (omitted) 2003 (“the child”) are hereby discharged.
Subject to paragraph 6 hereof, the parties shall have shared parental responsibility for the child.
A.In the event that the wife remains living within 50 kilometres of (omitted), Victoria
The child shall live with the wife.
The husband shall spend time and communicate with the child in Adelaide or other place of his choosing:
a.For up to two weekends in each school term by agreement between the parties, and failing agreement, the third and sixth weekends in each term, from 8:00 p.m. on Friday to 4:00 p.m. on Sunday, or 4:00 p.m. on Monday if Monday is a non-school day;
b.For half of all school term holidays by agreement and failing agreement from 12:00 p.m. on the first Saturday until 4:00 p.m. on the second Sunday in even-numbered years and from 12:00 p.m. on the second Friday to 4:00 p.m. on the third Saturday in odd-numbered years;
c.For three weeks in the long summer holiday each year by agreement and failing agreement from 12:00 p.m. on the day after school finishes until 12:00 p.m. on the day three weeks later in even-numbered years, and for the three weeks concluding at 12:00 p.m. on the Friday prior to the commencement of the new school year in odd-numbered years;
d.By telephone, Skype or other electronic means by agreement on at least two occasions each week when the child is living with the wife, and failing agreement on each Wednesday and Sunday evening between 6:00 p.m. and 6:30 p.m.;
e.At other times by agreement between the parties from time to time.
B.Or in the alternative, if the wife relocates more than 50 kilometres from (omitted), Victoria, then from the middle weekend of the Term 2 school holidays in 2016
The child shall live with the husband in Adelaide.
The wife shall spend time and communicate with the child:
a.For ten days in each of the first and third school term holidays each year commencing on the first Saturday;
b.For two weeks in the second school term holidays each year, commencing on the first Saturday, and if those holidays are three weeks long, then for three weeks commencing on the first Saturday;
c.For three weeks in the long summer holidays each year by agreement and failing agreement from the day after school finishes to the day three weeks later in odd-numbered years and for the three weeks concluding on the Friday before the beginning of the new school year in even-numbered years;
d.By telephone, Skype, FaceTime or other electronic communication:
i.In weeks when the child is not spending time with the wife, on no less than three occasions each week by agreement and failing agreement each Monday, Wednesday and Saturday at 6:00 p.m.;
ii.On the child’s birthday by agreement should he not be spending his birthday with his mother, and failing agreement between 7:30 a.m. and 8:00 a.m.;
iii.On the mother’s birthday each year by agreement should he not be spending his birthday with his mother, and failing agreement between 7:30 a.m. and 8:00 a.m.;
iv.On Christmas Day each year between 9:00 a.m. and 10:00 a.m. should the child not be spending time with his mother;
v.On Mothers’ Day each year between 9:00 a.m. and 10:00 a.m. should the child not be spending time with his mother;
vi.At such other times as the parties may agree from time to time;
with the wife to place the call and the husband to ensure that the child is available to take the call and that he has access to a charged and working telephone;
e.In Adelaide by agreement between the parties from time to time, but if the mother is in Adelaide for a weekend during school terms, then she shall spend time with the child from 6:00 p.m. on Friday to 6:00 p.m. on Sunday on no more than two weekends each month;
f.At other times by agreement between the parties from time to time.
Changeover for time spent pursuant to paragraph B 4(e) hereof shall take place at the home of the father.
C.Regardless of where the child lives
The resident parent shall have final responsibility for deciding the school the child attends.
If either party chooses to spend time with the child at a destination other than their usual place of residence, they shall notify the other of that fact no later than two weeks prior to the commencement of that time.
The resident parent shall deliver the child to the relevant departure gate at the Airport in his/her city of residence at the commencement of school holiday time and the non-resident parent shall deliver him to the relevant departure gate at the Airport in his/her city of residence at the conclusion.
Each parent shall advise the other of the child’s flight details and arrival time in the other parent’s city of residence (or other city) at least one week prior to the child travelling.
If the wife remains in Melbourne and the husband is spending time with the child in (omitted), then changeover shall take place at the wife’s home.
The parties shall share equally the cost of the child’s airfares between their cities of residence, or elsewhere in Australia, during school holidays, with the non-resident parent purchasing the child’s ticket from his or her city of residence at the commencement of time and the resident parent purchasing the child’s ticket back to his city of residence at the conclusion.
Within seven days of the date of these orders the husband shall do all such acts and things and sign all such documents as might be necessary to enrol in a Men’s Behavioural Change program lasting at least eight weeks (“the MBC program”), and he shall complete the MBC program and provide a certificate of completion to the wife’s solicitors within seven days of the final session.
The husband shall present to the coordinator or facilitator of the MBC program a copy of paragraphs 68 to 86 and paragraphs 314 to 319 of the Court’s Reasons for Judgment in this matter and shall provide evidence that he has done so to the wife’s solicitors within seven days of the first session of the MBC program.
Within three months of the date of these Orders the party shall each attend and complete a Parenting After Separation program and provide evidence of such attendance and completion to the other within seven days of completion.
The parties are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain the effect of these parenting Orders to him, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)allowing him to access, read or have read to him any portion of the Court’s Reasons for Judgment in this matter.
Each party shall notify the other as soon as practicable in the event of the child suffering any serious illness or injury while he is in their respective care and each shall authorise any medical or dental practitioner who treats the child to communicate and consult with the other parent.
The resident parent shall authorise any school, or the organisers of any extra-curricular activities in which the child is enrolled, to provide to the other at the other’s expense (if any) all information, notices, photographs, reports and like materials usually provided to parents and the other parent shall be named as a parent and contact person in the records of such school or organisation in the event of any emergency involving the child.
Both parents and their respective partners shall be at liberty to attend any school functions, extra-curricular activities or events to which parents are usually invited.
Each party shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.
PROPERTY ORDERS
If the child lives with the wife in Melbourne, there shall be such division of property between the parties that the wife retains assets worth 62% of the total non-superannuation assets of the parties and the husband 38%.
Or, in the alternative
(20) If the child lives with the husband in Adelaide, there shall be such division of property between the parties that the wife retains assets worth 54.5% of the total non-superannuation assets of the parties and the husband 45.5%.
Regardless of where the child lives, the wife shall retain, as part of her settlement set out in paragraph 20 hereof the following assets:
· One hundred percent of the shares in the company (omitted) Pty Ltd including all her right title and interest in the business formerly known as “(omitted)” to be valued for that purpose at $122,600.00
· The caravan valued at $21,000.00
Regardless of where the child lives, the husband shall retain, as part of his settlement set out in paragraph 20 hereof the following assets:
· The proceeds of sale of a boat worth $2,500.00
· The whole of the parties’ two-thirds share in the real property situate and known as Property A, in the State of Victoria (“Property A”)
Within 45 days of the date of these orders the parties shall do all such acts and things and sign all documents as might be necessary to transfer the husband’s shares in the company (omitted) Pty Ltd to the wife (“the share transfer”) and contemporaneously with the share transfer the parties shall each pay to the company any monies they owe to the company in the form of shareholder loans.
Any Capital Gains Tax owed by the parties as a result of the sale of the properties situate at and known as Property L and Property B shall be paid from the monies held for the parties in the trust account of the wife’s solicitor before the distribution of those monies is implemented pursuant to paragraph 20 hereof.
Unless the parties have agreed on the value of Property A within 14 days of the date of these Orders, the parties shall immediately appoint a properly qualified property valuer as agreed by them, or in default of agreement, as appointed by the president of the Australian Property Institute Victoria and obtain, at their joint expense, a sworn valuation of Property A (“the valuation”), and the valuation shall be the value of Property A for the purposes of the implementation of these Orders.
Within 30 days of the valuation being provided to the parties, the wife shall do all such acts and things and sign all documents as may be necessary to transfer to the husband, at the expense of the husband, all her right title and interest in Property A (“the real property transfer”).
Contemporaneously with the real property transfer, the husband shall discharge the mortgage over Property A and thereafter indemnify the wife against any and all liability for any encumbrance placed over Property A.
The furniture and chattels at Property L shall be divided between the parties in specie and by agreement and failing agreement, each shall choose one item in turn, the first option being decided by the toss of a coin, until all items have been distributed between them.
Any items remaining in the Property L property after the process set out in paragraph 28 hereof shall be sold by public auction and the sale proceeds divided pursuant to paragraph 20 hereof.
AND THE COURT NOTES THAT:
A.These Orders are partial property settlement Orders only pending the parties providing procedural fairness to the trustee of the (omitted) Superannuation Fund and upon the Court receiving evidence of such procedural fairness having been afforded, the Court intends to make the following Orders as final Orders in chambers:
In accordance with s.90MT of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the Applicant in the (omitted) Superannuation Fund (“the Fund”), the Respondent will be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base amount of $18,090.50 (eighteen thousand and ninety dollars and fifty cents) and there will be a corresponding reduction in the entitlement of the Applicant.
The trustee of the Fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
The Applicant is hereby restrained by himself his servants and agents from making any binding death benefit nomination to the trustee of the Fund in favour of any person who is an eligible beneficiary within the meaning of Regulation 13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the Respondent of the splitting Order made in paragraph 5 hereof.
Paragraphs 1 and 2 of these Orders bind the trustee of the Fund when these paragraphs take effect from the operative time, being the fourth business day after the date these Orders are served upon the trustee.
The Applicant and the Respondent shall do all such things and execute all such documents as may be necessary to facilitate the rollover by the trustee of the Fund of the Applicant’s entitlements pursuant to paragraph 1 of these Orders to another regulated superannuation fund, an approved deposit fund, or a retirement savings account or other such applicable fund or account at the sole nomination of the Respondent as soon as that is practicably possible after the operative time.
IT IS NOTED that publication of this judgment under the pseudonym Paget & Nicholson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 424 of 2013
| MR PAGET |
Applicant
And
| MS NICHOLSON (FORMERLY PAGET) |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the future living arrangements for X, who was born on (omitted) 2003 (“X”) and the division of marital property between his parents.
X lives with his mother Ms Nicholson (“Ms Nicholson”) in rented accommodation in (omitted) in Victoria.
Ms Nicholson intends to move to (omitted) in Queensland to pursue a new relationship and a new life with her partner, Mr S (“Mr S”) and she seeks Orders that would allow her to take X with her.
The husband, Mr Paget (“Mr Paget”) lives in Adelaide. He has repartnered with Ms S (“Ms S”) and he is living in a rented home with her and her daughters, Y aged 11 and Z aged 12. Y and Z are themselves subject to parenting Orders and they currently spend specified times with their father.
Mr Paget is opposed to X moving to (omitted) with his mother and seeks Orders that X live with him and his new family in Adelaide.
The parenting issues for determination in these proceedings, as agreed between bar and bench on the first day of trial, can be set out as follows:
A. Will X live with his mother in (omitted) or with his father in Adelaide?
B. How much time and under what circumstances will X spend time and communicate with the non-resident parent?
Property issues are less clear-cut. This is due to a lack of evidence about valuations or the articulation of specific Orders sought by the parties, and the lack of certainty about where X will live. Nevertheless, the general property issues, as in all cases, are:
C. What are the property interests of the parties and what is their value?
D. Is it just and equitable to alter those interests?
E. If it is just and equitable, what were the parties’ contributions to the property?
F. Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
G. In light of the above findings, what Orders should be made to effect a just and equitable division of property between the parties?
These general issues naturally encompass many of the further, more specific issues named by the parties at the beginning of the trial.
Those disputed issues not so easily encompassed in the general issues set out above can be described thus:
C(i) Should the wife’s credit card debt be included in the pool of property to be divided between the parties?
C(ii) Should debts owed to Mr I (“Mr I”) and Mr R (“Mr R”) be considered as joint debts of the parties?
E(i) What were the post-separation contributions of the parties?
E(ii) How was the income from the (omitted) business operated at the parties’ property at Property L (“the Property L property”) applied?
E(iii) Has the wife paid personal debts from joint business funds?
G(i) Should be an Order be made for a superannuation split in relation to the husband’s superannuation interests?
Background
The parties met when Ms Nicholson was about 22 years old and Mr Paget was about 19. They cohabited from (omitted) 1992 and were married on (omitted) 1996.
The parties remained together for about 20 years, having separated for a period of about 9 months and then reconciling before separating on a final basis in August 2012.
X is the only child of the marriage.
During the relationship and marriage the parties acquired and sold several properties and after separation, operated a (omitted) business, as well as working in employment outside the marriage.
Mr Paget is currently aged forty-three years old and works full time as a (occupation omitted) at (employer omitted) in Adelaide.
Ms Nicholson is currently aged forty-six years old and she is self-employed full time as a (occupation omitted).
Since separation, conflict levels have been very high and communication between the parties has been difficult.
In February of 2013, Mr Paget moved to Adelaide.
There is an Intervention Order in place which names Ms Nicholson as the Protected Person and Mr Paget as the Respondent. That Intervention Order was made on 13 December 2013 and will expire on 12 December 2018. It was made in Mr Paget’s absence.
X is currently aged 13 (although he was 12 at the time of trial) and began his first year of High School in 2015. The parties have agreed that while X is living in (omitted) he will attend (omitted) College where at time of writing it is assumed he is in Year 8.
Procedural History
These proceedings were initiated by Mr Paget filing an Initiating Application on 22 February 2013 in the Family Court of Australia, and initially he was seeking only a property settlement.
Ms Nicholson filed a Response on 7 May 2013 and an Amended Response on 5 July 2013, the latter including Orders in relation to X’s care.
The proceedings were transferred to the Federal Circuit Court by Registrar Riddiford on 19 July 2013.
Mr Paget filed a further Amended Initiation Application on 30 September 2013 including an application for parenting Orders.
The matter first came before me on 30 September 2013, when interim Orders were made by consent in relation to both property and parenting issues. I ordered that the parties attend a Conciliation Conference and that a Family Report be prepared.
At the Conciliation Conference the parties were able to settle their property dispute in principle and when they returned at Court before me on 25 February 2014, I gave them leave to have the property matters finalised in Chambers, although I note that no Minute of Consent Orders was ever received. I also set the matter down for Trial on 10 November 2014 and ordered an updated Family Report.
The parenting dispute at that time involved Mr Paget's Application for Orders that X live with him in Adelaide, while Ms Nicholson sought Orders that X remain living with her in (omitted).
The Trial was not able to proceed on 10 November 2014. However, interim Orders were made by consent on that day providing for X to live in (omitted) with his mother and spend time and communicate with his father. An updated Family Report was ordered from Ms J (“Ms J”) and the matter was again set down for Trial on 12 October 2015.
On 30 September 2015, Mr Paget filed a Further Amended Initiating Application further particularising the property and parenting Orders he seeks.
By the time the matter reached trial, the mother’s case had also been substantially amended so that she now seeks an Order that X live with her and that she be permitted to relocate with him to (omitted), where she intends to pursue her relationship of some three years’ standing with Mr S.
Mr Paget’s case remains that he seeks Orders that X live with him in Adelaide.
The trial ran for three days from 12 October 2015, witnesses being Mr Paget, Ms Nicholson, Ms J, and Mr S. Both parties were represented by counsel, with all witnesses being cross-examined and oral submissions made.
On 14 October 2015, I made interim property Orders in relation to the sale of a property and a motor vehicle, and the payment of school fees, and otherwise reserved my decision.
The Issues and the Evidence
Parenting Issues
The parties agree that they should share parental responsibility for X and the only parenting issues in dispute are where X will live and how much time and in what circumstances he should spend time with the other parent.
A.Will X live with his mother in (omitted) or (omitted), or with his father in Adelaide?
It is not in contention that X has lived in his mother’s primary care since his father moved to Adelaide in early 2013.
The parties separated in August 2012 while they were engaged in what had been intended to be a six-month road journey around Australia, with Ms Nicholson returning home to Victoria and X remaining with his father for the remainder of the trip which was concluded a few months later.
Ms Nicholson makes allegations of considerable verbal and emotional abuse perpetrated by Mr Paget during that trip and at trial, Mr Paget conceded that those allegations were almost all true.
When the parties had both returned to Victoria they then arranged a shared care regime whereby X lived and spent time with each parent until his father moved to Adelaide. There is dispute between the parties about exactly how much time he spent with each of them until early 2013.
Since the husband moved to Adelaide in early 2013, X has lived with his mother in (omitted) and has spent time with his father either in Victoria or in Adelaide pursuant first to an informal agreement and since the commencement of these proceedings, in accordance with Court Orders made by consent.
As already stated, after the commencement of the proceedings, Ms Nicholson changed her Response to Mr Paget's Application to include Orders that X be permitted to relocate with her to (omitted).
Initially she had wanted X to remain living with her in (omitted) and much was made early in the proceedings about his need for stability.
A family report was prepared by Dr M (“Dr M”) in late 2013. That report recommended that X remain living with his mother in (omitted) because the existing regime was working for him, he had “a great relationship with his mother”, and a move to Adelaide would be likely to cause him “a great deal of anxiety and distress” and “put lots of pressure on X”. That pressure was described as arising from X’s need to adjust to:
…a new school, a new environment, new peers, a new stepmother, new stepsiblings, a new house and different parenting styles and expectations; and he will also have to deal with the further sadness, grief, and loss associated with effectively losing the mother as the primary person in his life, and also his friendship circle; when it seems he is still reeling from dealing with his parents separation, and the loss of his father who exited from his life to reside in Adelaide, and the sadness this produced, and still produces according to the school.
X, then aged almost 11 and at primary school, reported being considerably distressed at the conflict he witnessed between his parents but it was clear that he dearly loved both parents. He did not want to choose where he lived but told Dr M that he “would probably find it difficult to change schools and make new friends, and he also reported that he would miss his mother”.
Dr M recommended that X remain living with his mother in (omitted) at that time and Mr Paget consented to interim Orders being made in those terms.
As has already been stated, at the Conciliation Conference in January 2014, Heads of Agreement were reached which were based on Ms Nicholson having the primary care of X.
It was only after Ms Nicholson filed her Amended Response in November 2014 seeking that she be permitted to relocate to (omitted) with X that Mr Paget persisted with his application for Orders that X live with him in Adelaide. As a result of that circumstance, the Heads of Agreement were never filed with the Court as a Minute of Proposed Consent Orders.
In each of his three interviews with two separate family consultants, X has expressed a strong desire to remain living with his mother in (omitted) and to spend time with his father in Adelaide. Both family consultants have seen that situation as being in X’s best interests.
However, despite filing a Trial Affidavit two weeks prior to trial and an Outline Of Case Document two days prior to trial saying that if she were not permitted to relocate to (omitted) with X she would remain in (omitted), it was Ms Nicholson’s clear evidence at trial that she would be moving to (omitted) whether or not X were permitted to move with her.
However, because of the family consultants’ recommendations and because of what appeared to be the last minute determination of Ms Nicholson to relinquish X’s care should she not be permitted to take him to (omitted), I feel bound to consider whether it would be in X’s best interests to remain living with his mother in (omitted) as a third option in these proceedings.
The situation I am seeking to avoid in making that decision is one where I make Orders for X to live with his father in Adelaide on the basis that Ms Nicholson is determined to move to (omitted) and then Ms Nicholson changes her mind again and makes a further application for X to live with her in (omitted) or elsewhere in Victoria. That situation, which would bring the parties back to Court to begin litigation all over again, would, in my view, be the worst possible outcome for X.
In other words, as a result of these proceedings, X will either be moving states: to Queensland with his mother; or to South Australia to live with his father; or, depending on his mother’s choice, he will remain in (omitted) with his mother.
Evidence of the husband
The husband relied on three Affidavits filed during the proceedings and on his oral evidence given during the trial.
In his first Affidavit, sworn 12 and filed 23 September 2013, Mr Paget sets out the history of the relationship and deposes that until he moved to Adelaide in January 2013, he had been X’s primary carer.
It is his evidence that after X’s birth, he had been a “stay-at-home Dad” who cared for X full time for the first three years of his life before returning to full-time employment as a (occupation omitted). He deposes further that he “did everything for X” during that period and that even after he returned to full-time work, he was his son’s primary carer. This was made possible by the flexibility of his working hours.
He deposes that:
The wife would on average only be home for dinner once or twice per week and rarely spent time with X and myself. The wife’s absence from the family was one of the main reasons for the breakdown of the marriage.
He was very critical of Ms Nicholson and her care of X, alleging that she was more interested in operating her business and her social life than in caring for her son.
He complained that X was often left with one of his grandmothers or “other persons” while Ms Nicholson travelled interstate and set out more than 20 instances where X had been either left alone at home or cared for by third parties.
At the time of swearing his first Affidavit, X had met Mr Paget’s new partner, Ms S and her two daughters and he deposes that “they all get on extremely well together and have spent extended times together”. He said that X had his own bedroom at his home, which had “two large living areas, a swimming pool with safety fence and is adjacent to a family friendly park which is a terrific environment for the children to play in”.
In his second Affidavit sworn 1 October 2014, Mr Paget complains that although he has seen X “for one half of school term holidays, for two weeks during the summer school holidays, at Christmas time and on three or four other weekends per year”, telephone communication with X had been extremely difficult because the majority of the calls (made to the wife’s phone) were either unanswered or went immediately to message bank.
He sets out circumstances where he received a telephone call from Mr S on 5 March 2014 informing him that the wife intended to move to (omitted) to live with him and that she wished to take X with her. Mr Paget says that was the first time he was aware of Ms Nicholson’s intention to move to Queensland and he notes that that issue was not raised with Dr M in late 2013.
Mr Paget deposes that he had spoken to X about that possibility and that X had told him that he did not like (omitted) because it is too hot, he does not like cyclones, he did not know anyone there, and it would be too far away from his grandparents who live in Victoria.
He says that X told him that if staying in (omitted) were not an option for him he would prefer to live with his father in Adelaide.
In his Trial Affidavit, sworn 30 September and filed 1 October 2015, Mr Paget says that it had been a difficult decision for him to move to Adelaide in early 2013, but that “my personal well-being was being affected remaining on the (omitted) and my employment prospects were grim. I also have friends and family in Adelaide who provided me with much-needed support”.
He states that since he moved to Adelaide, “X has spent time with me during all school holidays and on other special occasions. On my observations X has enjoyed this time and I still retain a very close and loving relationship with him.” He again complains that Ms Nicholson has made regular telephone contact with X difficult.
Mr Paget deposes that since swearing his previous affidavit he and Ms S had moved to a rented property in (omitted) which had four bedrooms and “a nice backyard”. He says that the property is close to the children’s school and that X has his own room there. It is Mr Paget’s intention that should X come to live with him, he would attend (omitted) High School with Ms S’s children.
Mr Paget expresses concerns that the wife’s work obligations mean that “X is often spending weekends staying with school friends whilst the wife is away”. He says that as he does not have to travel for work, X’s life in Adelaide would be more stable and that he would be able to facilitate any sport or extracurricular activities X might be involved in.
Regarding X’s relationship with Mr Paget’s new family, Mr Paget says the following:
21. On the occasions X has stayed with us he has fitted into our combined family and household seamlessly. X enjoys being around his stepsiblings and the outdoor activities we engage in during our spare time. Education and homework is a focus for our family during the week and we ensure the children have sufficient time, resources and encouragement to complete what is required of them by their teachers.
22. Y and Z participate in (hobbies omitted). Should X come to live with me in Adelaide there are great opportunities with (hobbies omitted) which I will actively encourage and participate in as a parent should X wish to do so (sic).
Despite his continuing wish for X to live with him in Adelaide, Mr Paget states that if Ms Nicholson were to remain in (omitted) he would have “the benefit of close connections with family and friends and stability of remaining in a school where he is established”.
At trial, Mr Paget’s dismissive and somewhat contemptuous attitude towards Ms Nicholson was obvious from the beginning of his evidence.
In evidence given under cross-examination, Mr Paget admitted that the language he is alleged to have used in multiple text messages and emails to Ms Nicholson and in conversation with her following separation, was correct. Those messages and conversations can only be regarded as sarcastic, immature, highly critical and offensive in both tone and substance. If they are in any way typical of the way in which Mr Paget communicates with Ms Nicholson, it is not surprising that Ms Nicholson sought an Intervention Order against him.
Mr Paget was insistent that X had never heard him speak to Ms Nicholson in that way other than during the incident in December 2012 which led to Ms Nicholson seeking an Intervention Order against him, although it is difficult to believe that X has never heard him use such language or express such contempt about his mother.
When he was taken through the incident in late 2012 which led to the application for the Intervention Order, he accepted that X would have found that incident distressing but denied using some of the more “colourful” language alleged by Ms Nicholson.
Mr Paget, while conceding that there was no excuse for speaking to Ms Nicholson in the ways in which she alleged and which he did admit, denied that his very critical and negative attitude to Ms Nicholson would mean that he would not promote the relationship between X and his mother if X were to live with him in Adelaide.
He further conceded that Ms S is also very critical of Ms Nicholson’s role as X’s mother but said that he thought that Ms S had been justified in sending text messages to Ms Nicholson, the content of those text messages also being highly critical and their tone sarcastic.
Mr Paget was unable to concede in oral evidence that Ms Nicholson had played any role in ensuring that his current relationship with X was close. He maintained that stance even under quite vigorous cross-examination.
He further denied, in the face of X having told Dr M that he did not think that his father thought that his mother was a good mother, that X would know of his low opinion of Ms Nicholson. He said that he had never “put down” Ms Nicholson in X’s presence and that while X might know that the relationship between his parents was strained, that was not the result of any action on his part.
It is difficult to believe that Mr Paget was genuine in giving that evidence, although it is possible that he simply lacks insight into the effect of his behaviour on his son.
Mr Paget was forced to concede under cross-examination that he had not told X that he was moving to Adelaide until after Ms Nicholson had told him, but denied that that meant that he had left that important conversation to Ms Nicholson when he would have been the appropriate parent to speak to X about his intentions.
Overall, Mr Paget impressed as a man who held his former wife and the mother of his son in sheer contempt. He denied in oral evidence that his attitude to her was “fairly poor”, but was then forced to acknowledge that he did not “hold her in high regard”.
The only time he appears to have said anything positive about Ms Nicholson was in acknowledging to Dr M and Ms J that she was a good mother to X, although those statements stand in stark contradiction to almost all of his other evidence about that issue.
At very least, Mr Paget’s evidence that he had never criticised Ms Nicholson in X’s presence and that therefore X did not know of his attitude to her, shows a naiveté and lack of insight that is quite concerning.
There is no clearer indication of the conflict and lack of respect and flexibility between the parties than the negotiations that took place between their solicitors in the lead up to a holiday to (country omitted) that Ms Nicholson proposed to take with X during the third term school holidays in 2015 (“the (country omitted) holiday”), only weeks before trial.
Orders made by consent on 10 November 2014 provide for X to spend time and communicate with Mr Paget for “one half of each school term holiday period in 2015 as agreed between the parties and failing agreement the second half”. There is no further detail provided in those orders as to changeover times or other arrangements.
In the negotiations between the parties’ solicitors in the weeks before the (country omitted) holiday, Mr Paget insisted that X should arrive in Adelaide either at 11:00 a.m. on Saturday 26 September or 9:00 a.m. on Sunday 27 September 2015.
Ms Nicholson advised that she was able to arrange for X to be in Adelaide on the evening of Saturday 26 September after his return from (country omitted) earlier in the day. Mr Paget refused that offer, insisting that X be provided either at 11:00 a.m. on that day or at 9:00 a.m. on the following day. Otherwise, Mr Paget threatened, he would not consent to X going to (country omitted) with Ms Nicholson. No reason was given for that insistence.
It was not until trial when he was under cross-examination that Mr Paget gave evidence that he had been required to begin work at noon or 12:30p.m. on 26 September, which would have prevented him from collecting X from the airport in the evening. He conceded that he could have asked Ms S to collect X but that he had chosen not to ask her to do so. He also conceded that he had not provided the information about his work commitments to Ms Nicholson at the time of the negotiations.
The impression he gave was of a rigid and somewhat bullying man who simply could not bring himself to adjust his plans for what he saw as the convenience of Ms Nicholson, when in fact he was being asked to be flexible for X’s sake.
When it was pointed out to him that he had been able to be flexible about times when it suited him, such as during the long summer holidays of 2015/2016, he became quite defensive and denied that he was a man who “likes to get his own way”. Nevertheless, that is how he presents.
It is pertinent to mention here that Ms S had filed an affidavit in support of Mr Paget but that she was not made available for cross-examination at trial and Mr Paget’s counsel indicated to the Court that in circumstances where Ms Nicholson’s counsel would be seeking to cross-examine her, he would not be relying on that affidavit.
Evidence of the wife
The wife’s evidence is found in three substantial affidavits sworn on 7 November 2014, 31 July 2015, and 28 September 2015, and in her oral evidence given at trial.
At the time of swearing her first affidavit on 7 November 2014, Ms Nicholson deposes that X was spending time with his father, by agreement, for half of the school term holidays and for two weeks during the long summer holidays. There had also been other ad hoc times when X had spent time with his father in Melbourne.
In that affidavit Ms Nicholson sets out the circumstances under which the parties embarked on their road journey around Australia in 2012, saying that they were considering moving to a warmer climate on the coast in northern Australia because both love the beach, swimming and boating.
She says that the trip was not a happy one, with her and Mr Paget arguing almost every day and X being distressed by those arguments. She particularises several times when Mr Paget verbally abused her and/or spoke to her in a particularly disrespectful way, on one occasion storming off and leaving her X alone in the middle of the bush.
Ms Nicholson says that after she left Mr Paget and X in Darwin in mid-August 2012, Mr Paget made it very difficult for her to keep contact with X by telephone. She deposes that he would not provide X to meet with her at various places along the way and that he told her that “Australia is a big country” and threatened to “hide away so that you can never find your son”.
It is Ms Nicholson’s evidence that when X and Mr Paget returned to (omitted) in November 2012 she was not informed and only discovered their return when perusing joint credit card transactions.
Ms Nicholson describes in some detail the incident on the day when she attended at Mr Paget’s mother’s home hoping to see X. She says, at paragraph 37:
An argument broke out and the husband yelled and abused me (sic) he told me “you have no right to be here”, “you are not allowed to see X”, “X does not want to see you” and “until I’ve seen my solicitor, I am the main carer and the status quo is to remain”. He constantly pushed me on my upper torso, alternating between my left and right shoulder, as I tried to protect my body. As I placed my hands in front on my torso he tried to rip my car keys and phone out of my hand. X came out and witnessed the husband pushing me and screamed at his father to leave me alone.
She further deposes that X told her later that he had hidden under his bed and cried after the incident. She said X had been very angry with his father about the way he had treated her.
Ms Nicholson attended her general practitioner the next day and obtained a medical report which she then took to the local police station where she made a statement about the incident.
Over the next couple of months Mr Paget sent her multiple text messages and emails which can only be described as intimidating, highly disrespectful and offensive. They are full of vitriol and scorn for Ms Nicholson and say much about Mr Paget’s attitude to her and by extension, to women in general.
As a result of the incident and the subsequent text messages, Ms Nicholson made an application for an Intervention Order against Mr Paget on 18 February 2013. That application was withdrawn after Mr Paget gave an undertaking on 12 March 2013 at the Frankston Magistrates Court.
However over the ensuing months Mr Paget continued to send Ms Nicholson emails and text messages which can only be described as abusive and designed to cause distress and after Ms Nicholson reinstated her application for an Intervention Order an interim Order was made in August 2013.
The final hearing of that application was listed on 13 December 2013, when Mr Paget failed to attend the hearing and a final Intervention Order was made, that order to last for five years.
After setting out in full the significant time that X had spent with his father since he returned to (omitted) in November 2012, Ms Nicholson turns to her application to relocate X’s place of residence to (omitted).
It was her evidence at the time of deposing her first affidavit that she and X lived in a spacious four-bedroom rented unit in (omitted).
She deposed that her working situation was flexible enough “to fit in with X’s schedule”, and that he was involved in extracurricular activities like (hobbies omitted).
Ms Nicholson then sets out her evidence about the beginning of her relationship with Mr S, saying that they met on 31 October 2012 and that their relationship was ongoing.
She describes at that time five occasions on which X had accompanied her to (omitted) to stay with Mr S and a further seven occasions when Mr S had travelled to Victoria and stayed with her and X. She describes a happy and developing relationship between X and Mr S.
Ms Nicholson deposed that she wished to enrol X at (omitted) School (“(omitted) School”), which her research had shown to be a school of strong academic standing with “a good sporting program”. She says that she had also spoken to local (hobbies omitted) organisations.
It was (and remains) Ms Nicholson’s proposal that, as there are apparently no direct flights between (omitted) and Adelaide, she would drive X to (omitted) in order to catch a direct flight so that he could spend holiday time with his father. I note that (omitted) is about 350 kilometres from (omitted) and Ms Nicholson deposes that it involves a drive of over four hours. She said she would accompany X on the first two or three such flights so that he would become used to the process.
I note that if Ms Nicholson moves to (omitted), then no matter with whom X lives he will need to travel considerable distance to visit the other parent, either flying to or from (omitted) on a direct flight, or flying between (omitted) and Adelaide via another city.
In support of her application to relocate to (omitted) with X, Ms Nicholson says the following:
The area is very family orientated and encourage living outdoors (sic), which is something as a family we all enjoyed, hence our trip around Australia. There are plenty of opportunities for X to play sports locally, the beach that we love is only minutes away and there are many children that live within the area of where I plan to live (sic). There are plenty of places we can go camping, within only a few hours drive, and we would be surrounded by beautiful rainforests and waterfalls. We have already visited some of them, and X cannot wait to return with our noodles and tubes and float down the river.
However, Ms Nicholson was clear at that time that if the Court were to determine that it was not in X’s best interests to move to (omitted), she would remain living in (omitted) with him and she proposed that the current parenting arrangements for half school holidays and other time when Mr Paget travels to Melbourne would continue.
Ms Nicholson deposed that X had told her he did not want to move to Adelaide or (omitted) and that it was his preference to remain in (omitted).
She said further that she had told him that if they moved to (omitted) they would return to (omitted) at least once every two months in order to visit family and friends. She also deposed that she would encourage the maintenance of X’s relationships with his (omitted) friends by inviting them to come to (omitted) at her expense (as she had done once before), and by ensuring that X has regular telephone and Skype contact with friends and family in Victoria.
In her second affidavit, sworn 31 July 2015, Ms Nicholson deposes that X has been enrolled at (omitted) College in (omitted) but complains that Mr Paget has not complied with orders made by consent on 10 November 2014 in that he had not signed the necessary enrolment forms nor contributed to X’s school fees, which at that time remained outstanding.
Ms Nicholson swore her trial affidavit on 28 September 2015.
In that affidavit Ms Nicholson complains that Mr Paget had not complied with the orders made by consent on 10 November 2014 during the previous long summer holidays.
Those orders provide for X to spend time and communicate with his father “for one half of the long summer vacation in 2014/2015 at times to be agreed and failing agreement from 11:00 a.m. on 10 January 2015 until 11:00 a.m. on 25 January 2015”.
It is Ms Nicholson’s evidence that, without any consultation with her, Mr Paget made flight reservations for X to leave Melbourne at 9:05 a.m. on 10 January 2015, which meant he would arrive in Adelaide at 9:55 a.m. that day, and for him to return on 25 January 2015 on a flight that left Adelaide at 5:25 p.m. and arrived in Melbourne at 7:15 p.m.
There was some conflict between the parties about this arrangement although Ms Nicholson ultimately provided X for time with his father pursuant to his father’s flight reservations.
Ms Nicholson further complains that Mr Paget refused to inform her where X would be spending the 2015 first term school holidays with him, that she had been unable to speak to X during those holidays for almost a week, that Mr Paget had moved house without informing her of his new address, and that X had been left alone at home when he was ill and vomiting during that time.
In the second term school holidays, Ms Nicholson deposes that Mr Paget arranged to come to Melbourne to spend the period 6 July to 12 July 2015 with X. However, it is her evidence that X called her from his paternal grandmother’s house late on the evening of 9 July to tell her that Mr Paget had returned to Adelaide at lunchtime on that day, and that she had picked him up on that evening.
Ms Nicholson then sets out in great detail her experience of the dispute between the parties about the (country omitted) holiday. I have already set out earlier in these reasons my views about Mr Paget’s behaviour at that time and will not repeat them here.
In relation to her proposed move to (omitted), Ms Nicholson says the following:
44. While I am aware that X has said he does not want to relocate to (omitted), I do not believe he has given the matter proper consideration. X’s reasons for not moving include that it is “too hot”, that there are cyclones and mosquitoes. When I took X to (omitted) for two days to attend orientation at (omitted) School on 24 and 25 November 2014, I asked him if he enjoyed the days and he said “yes”.
45. I have told X that if we moved to (omitted) and he is still not happy after 12 months, I would reconsider moving back to (omitted).
She deposes that if permitted to relocate with X she would travel to Melbourne regularly so that X could spend time with his maternal grandparents, his paternal grandmother, and his school friends.
Ms Nicholson then deposes that she is concerned about the impact on her relationship with X if the Court were to make orders preventing X from relocating to (omitted).
Her first concern in that regard is that X has told her that he and his father would fight any move to have X relocate to (omitted), and she says that if the court were to prevent him from relocating, “he will think he has “had a win” over me and can dictate or demand other aspects of our lives”.
The second concern is that she will not be able to contact him regularly if he lives in Adelaide, as it has been her experience that she has always had difficulty in doing so. Ms Nicholson does not trust Mr Paget to facilitate a relationship with X and she sets out the contents of an email where he says “when X comes to reside in Adelaide at the end of the year … travel arrangements will need to be negotiated by you and the shoe will certainly be on the other foot”. The tone of that email is consistent with the court’s view of Mr Paget.
Ms Nicholson also deposes to being concerned about the impact on her relationship with Mr S if she is unable to move to (omitted) with X. She says that while she and Mr S have been able to maintain a long-distance relationship over a period of three years, she is concerned that that situation is not sustainable in the long term. She then says that Mr S has told her that “he cannot move to Melbourne because of his work commitments”.
Ms Nicholson then sets out the text of correspondence sent by her lawyers to Mr Paget’s lawyers on 10 September 2015 in which she seeks an amended family report so that Ms J could consider her alternative proposal that if Ms J were to recommend that X not move to (omitted), he should remain with her in (omitted).
As already stated, the Outline of Case Document filed on her behalf on 9 October 2015 also proposed that X should remain living with her in (omitted) should she not be permitted to relocate with him to (omitted).
However, by the time of trial, only two days after that document had been filed, Ms Nicholson’s position in relation to X’s place of residence had changed dramatically in that she was no longer pursuing the alternative proposal that X remain living with her in (omitted) if the Court were to decide that he should not relocate with her to (omitted).
Her only proposal at trial was that X should live with her in (omitted).
Under cross-examination she said that while she was “terrified of losing” X, she intended to move to (omitted) either with or without him. Under further questioning it was her evidence that that position was genuine, that she had changed her mind and that if the Court were to make an order that X live with his father in Adelaide, she would relocate to (omitted) anyway, although she acknowledged that she would have to have a very difficult conversation with X in that event.
Ms Nicholson conceded that X has a strong relationship with both his maternal grandparents and his paternal grandmother, all of whom live relatively close to her and X in Victoria. However she was unable to accept that a move to (omitted) would cause any disruption or damage to those relationships for X as she said she and X would return to Melbourne regularly to see them.
Ms Nicholson accepted that travel between Melbourne and Adelaide was much less onerous for X than travel between Adelaide and (omitted), although it was her evidence that she had not made any enquiries as to the comparative cost of that travel.
In late 2014, after these proceedings had been adjourned to October 2015, Ms Nicholson took X to a two day orientation program at (omitted) School while she and X were visiting Mr S.
She acknowledged at trial that she had not told Mr Paget about X’s attendance at that program and said that she had not thought to do so. She further acknowledged that she knew at that time that X would not be attending (omitted) School in 2015 but would be attending (omitted) College in (omitted). However, it was her evidence that she did not think that X would have been confused by attending the orientation program at (omitted) School in late 2014 and said that he had enjoyed the program.
When it was pointed out to her that X had told Ms J that he did not think that (omitted) School was “his kind of school”, Ms Nicholson simply said there was no indication of that when X was at the school. When pressed further on that point, Ms Nicholson said that while she accepted that that was what X had told Ms J, she did not accept that that was his genuine belief, and that he simply did not want move from (omitted).
She accepted that she had tried to create the situation where X would like to move to (omitted) but would not accept that she had failed in that endeavour.
When it was put to her that moving to (omitted) was her wish and not X’s, Ms Nicholson simply said that she thought it would be “good for both of us”.
In giving this evidence, Ms Nicholson impressed as being less concerned with X’s well-being than with her own plans and appeared unable to understand that her plans might have any detrimental effect on X at all.
She agreed that her main motive for wishing to relocate to (omitted) is her ongoing relationship with Mr S. However, she said that that had not always been the case and that she had met Mr S on a plane on the way to (omitted). It was her evidence that she had been going to (omitted) for a conference because she wished to move to Queensland and she saw the conference as an opportunity to develop contacts in (omitted).
When it was put to her that she had given Ms J a list of reasons for wanting to relocate, none of which was to pursue the relationship with Mr S, she said that she assumed that that reason was “self-explanatory”. Ms Nicholson then conceded that she had denied to Ms J that the relationship was the major reason for her desire to relocate and it was then her evidence that she wished to relocate to (omitted) whether or not her relationship with Mr S were to continue.
I found her evidence in that regard confusing and unsatisfactory.
In relation to her affidavit evidence that she had told X that if he did not like it in (omitted) they would return to (omitted), Ms Nicholson said that she had meant what she said at the time and that she still meant it now. She did not accept that that scenario placed pressure on X and might be detrimental to him.
In relation to her employment, Ms Nicholson confirmed that she has operated her (omitted) business from (omitted) for about 14 years. She said however, that not all her customers were in Melbourne. When pressed she said that 5 per cent to 10 per cent of her customers were located elsewhere.
It was her evidence that while she had never worked in (omitted), she works remotely every time she visits Mr S there. It was her further evidence that she had had at least one firm offer of employment in (omitted), that her potential employer knew that she wished to work part-time and that she could work in her own business remotely when not otherwise employed.
In relation to X’s schooling, Ms Nicholson said it had always been the parties’ intention to send X to a private school for his secondary education. It was her evidence that X has told her that he does not wish to attend a public high school as he does not want to go to “a pov school”[1]. Only when pressed by counsel did Ms Nicholson suggest that it was not acceptable for X to refer to government schools as “pov schools” and that she had admonished him for doing so. It certainly appeared to the Court until that time that Ms Nicholson shared X’s view of government schools.
[1] I take “pov school” to mean that the school is impoverished and I interpret this term as referring to the belief that public schools are not as well-resourced as private schools.
Ms Nicholson’s evidence was that she would pay X’s fees for (omitted) School in the sum of just over $11,000 per year from her own earnings. However, when it was put to her that X’s school fees at (omitted) College were overdue and that she had paid only the amount of $200 towards them for the 2015 year, she was forced to admit that she did not know how she would be able to afford (omitted) School’s fees if she could not afford to pay those of (omitted) College.
She then said, rather reluctantly, that she was in fact choosing not to pay X's (omitted) College fees because she believed that Mr Paget should be paying half of them. She acknowledged that there was no Court order that he do so and that Mr Paget pays regular child support pursuant to a Child Support Assessment.
Just as Mr Paget’s evidence was replete with examples of his contempt for Ms Nicholson, so Ms Nicholson’s evidence at trial exposed her very low opinion of Mr Paget.
For instance, she was not prepared to concede that Mr Paget is X’s primary male role model, saying that he is “an abuser”. She said that Mr S, her own father and Mr Paget would all be male role models for X. Her evidence appeared to deny that Mr Paget had a special role in X’s life as his father and that she was saying that all the adults in X’s life had an equal role.
Under cross-examination, Ms Nicholson was not prepared to concede that X enjoyed his time with Mr Paget in Adelaide, but that X had told her that Mr Paget is at work until 1:00am or 2:00 a.m. and that he wanted to spend more time with his father. That evidence is simply contradictory.
It was her evidence that after Ms J had recommended that X attend counselling, Mr Paget would not allow her to engage X in that process, and that he had said that “it would be shit”.
Ms Nicholson conceded that she had put her phone on speaker mode during an argument with Mr Paget while X was in the house, but said she did not believe that X had heard the argument. It is difficult to believe that evidence.
Even after giving all that evidence and some particular evidence in relation to an email exchange between Ms S and her and Mr Paget, Ms Nicholson denied that she had a generally low opinion of Mr Paget or that she had a negative attitude to Ms S.
I do not accept that denial. It is clear from her evidence that she holds Mr Paget in similar contempt and mistrust to that in which he holds her.
That cannot be anything but detrimental to their son’s emotional development.
Mr S
Mr S swore an affidavit on 6 October 2015 and also gave evidence at trial, having travelled down from (omitted) for that purpose.
Mr S’s evidence was that he has two adult children from a previous relationship who live in (omitted) and who he sees approximately 4 times per year in person and with whom he speaks two or three times a week via Skype or Facetime.
He said that since he met Ms Nicholson while flying to (omitted) in 2012, he and Ms Nicholson “have maintained a long distance relationship since then, and spend time with each other both in Melbourne and (omitted). We Skype every second day, and usually talk once or twice each day on the phone”.
In his affidavit material Mr S then sets out the following paragraph:
I work as the (occupation omitted) for (employer omitted). I moved to (omitted) from (omitted), Victoria over four years ago for this role. While the head office for (employer omitted) is based in (omitted), Victoria, I am unable to relocate back to Melbourne. My work commitments require me to live in northern Queensland.
I note that that evidence was not questioned or even put to Mr S at trial, which is unfortunate, as it means that the possibility of him moving back to Melbourne to pursue his relationship with Ms Nicholson was never interrogated.
Mr S says that he works from home, a situation which would allow him to assist Ms Nicholson with “school drop-off and collection, and also take X to his extracurricular activities”.
He says that since November 2012 when he first met X, he has spent time with him and Ms Nicholson in both Melbourne and (omitted) and that he has developed a close relationship with X over that time. He says that he treats X as his son and that he values that relationship.
He then sets out in some detail the activities which he, Ms Nicholson and X had engaged in during the 15 occasions they had spent together in Melbourne, (omitted) and various rural locations between November 2012 and August 2015.
At trial Mr S confirmed that it was his expectation that when Ms Nicholson moved to (omitted) they would eventually live together as a couple.
He said that he was aware that Ms Nicholson intended to send X to (omitted) School and said that both he and Ms Nicholson would be paying X’s school fees, although they had not discussed that issue at the time of his giving evidence. It is surprising that he and Ms Nicholson had not discussed this important financial issue before the trial and perhaps indicates a lack of planning on their part.
Mr S was questioned about a text message he had sent to Ms Nicholson in 2014 which contained sexually explicit material which would be inappropriate for a child to see. He acknowledged that X had accidentally seen that material and that he had been distressed by it. It was his further evidence that he and X had repaired their relationship following that incident although they had never discussed it. He said that it was “out of character” for him to have sent the text containing that inappropriate material to Ms Nicholson.
Under cross-examination Mr S said that X had been left in his sole care on several occasions, the longest time being for between two and four hours. Nevertheless, he said, if X moved to Queensland he would be available to care for him on his own for two to three days at a time should Ms Nicholson have to travel for work. He did not believe that that situation would cause any distress to X.
He acknowledged that he and Ms Nicholson had made every effort to put the proposed move to (omitted) in an attractive light to X but that X had been unconvinced because he did not wish to leave (omitted).
Mr S was confident that Ms Nicholson would be able to find work in (omitted) and that she would also be able to transfer and grow her own business while living there.
It was Mr S’s evidence that he did not really know Mr Paget and Ms S and indeed had never met Ms S and that he was not antagonistic towards them although he was well aware of the antagonism between Ms Nicholson and Mr Paget.
However, when the contents of an email that he had sent to Ms Nicholson in early 2014 were read to him, he conceded that there was a degree of antagonism towards Ms S in that email and that Ms Nicholson had held a similar antagonism which had been long standing. He clarified in re-examination that the email had been sent only to Ms Nicholson and that he had never sent anything to Ms S.
Overall, the evidence of Ms Nicholson and Mr S revealed a considerable lack of thought about the effect on X of moving from the area he has known as home all his life and away from friends and family, to an essentially unknown city. Their lack of specific planning about X’s education costs is also of concern in that regard. While it is understandable that Ms Nicholson and Mr S wish to live together after a relationship lasting more than 3 years, the overarching impression was of two people who have put that wish ahead of the needs of Ms Nicholson’s now 13-year-old son.
The Family Consultants’ Evidence
As already stated, three family reports were prepared in this matter: the first by Dr M in December 2013 (“Dr M’s report”); the second by Ms J in October 2014 (“Ms J’s first report”); and the third by Ms J in September 2015 (“Ms J’s updated report”).
Dr M’s report was prepared in circumstances where the dispute between the parties was whether X would remain in (omitted) with his mother or move to Adelaide to live with his father.
Despite the fact that Ms Nicholson had met Mr S over 12 months prior to the preparation of that report, there was no suggestion at that time that she intended to move to (omitted) and Dr M’s report refers to Ms Nicholson as being “currently single, although she has a friend she occasionally sees in Queensland”.
In those circumstances, Dr M’s recommendation was clearly that X’s best interests were to be served by him remaining in his mother’s care in (omitted).
To his credit, Mr Paget accepted that recommendation at that time.
By the time Ms J prepared her first report in October 2014, Ms Nicholson had decided to move to (omitted) and was seeking Orders that X be permitted to relocate with her.
At that time Mr Paget’s proposal was that X should live with his mother in (omitted) and that if his mother were to move to (omitted) then X should come to live with him in Adelaide.
When asked by Ms J how he would be affected if X were permitted to relocate to (omitted), Mr Paget said that he would have concerns about X catching two planes to visit him, that he would be “shattered” if X went and that he was concerned that X’s relationship with his paternal grandparents would be damaged.
He told Ms J that he was concerned about the mother’s proposal to have X board at (omitted) School if she needed to travel for work and that he did not know who would be supervising X if he were to relocate to (omitted). He was also concerned that X had no family or friends in (omitted).
Ms J then records that Mr Paget had told her that Ms Nicholson was “a good loving mother and he has never had an issue with that”.
However, Mr Paget had then gone on to recite a litany of criticisms of Ms Nicholson’s parenting ability.
On the totality of the evidence before the Court, it is difficult to believe that Mr Paget was genuine in his statement to Ms J about Ms Nicholson being “a good and loving mother” in October 2014.
Ms Nicholson had told Ms J that if X could not relocate with her to (omitted) then she would remain in (omitted). However if the Court decided that X should live with his father in Adelaide, she would move to (omitted).
When asked how she would be affected if X were not permitted to relocate with her to (omitted), Ms J reports Ms Nicholson as saying that she “would be an emotional wreck and they would just have to stay where they are”.
Like Mr Paget, Ms Nicholson told Ms J at that time that Mr Paget was “a good dad, he is very strict and firm, and there is no messing around”.
However, again like Mr Paget, she then went on to criticise his lack of involvement in X’s sporting and other extracurricular activities and the fact that his weekend working commitments meant that he would not be available to take X to those activities. She was also critical of Mr Paget for not attending X’s confirmation and for not flying to Melbourne to see X on Father’s Day. She was concerned that she did not know what school X would attend in Adelaide or how Mr Paget would facilitate X’s attendance at school. She expressed particular concern that Mr Paget did not facilitate communication between her and X when X was visiting his father, and she worried about that issue should X be living full time with his father.
Ms Nicholson’s proposal in relation to X’s travel between (omitted) and Adelaide was the same as it is now – she would drive X to (omitted) and he would travel to Adelaide by direct flight from there. She told Ms J that cheap fares were available if one booked in advance.
Ms Nicholson told Ms J that she now had contacts in (omitted) and was confident that she could continue her business “given the technology of today”.
X’s views in the interviews held for the purposes of Ms J’s first report were unequivocal. He did not want to move to (omitted) giving his reasons as “it’s too hot. I can’t play my sports. I have to be around Mr S. I don’t like him much. I have to move and I can’t see my grandpa and grandma much”. When asked, he also said that he would miss his school friends and would be sad to leave his school.
X told Ms J that Ms Nicholson had told him that if he didn’t like (omitted) after moving there, they would return to Melbourne.
When asked what it would be like living in Adelaide with two stepsiblings when he had been an only child all his life X said “I guess I would be happy because then I’ll have siblings and I won’t get bored”.
Ms J observed a “relaxed and comfortable” relationship between X and both parents, with both Mr Paget and Ms Nicholson being “appropriate, caring and attentive”.
In her evaluation of the family situation at that time, Ms J said the following:
66. X does not want to relocate to (omitted) but he would feel happy relocating to Adelaide. In my view X would manage relocation to Adelaide as he is familiar with this life. It is my view that if X is permitted to relocate to Adelaide, his relationship with Ms Paget would not suffer damage as X is old enough to have memory skills and language skills which ensures that he would be able to communicate with Ms Paget. In addition, X is reaching the age where he will be looking more and more for direction from Mr Paget being the male role model he identifies with. For X relocation to Adelaide to live with Mr Paget would bring many benefits providing Mr Paget continued to facilitate X to maintain his relationship with Ms Paget. It is my view that Mr Paget would do this. In addition, while X would have to adjust to being one of three children he seemed to feel this would be a positive experience having siblings (sic).
67. It is my view that relocation to (omitted) with Ms Paget may be damaging to X’s relationship with Ms Paget. It would not be damaging to X’s relationship with Mr Paget as X would be able to maintain this through communication and memory skills. In addition it is my view that Ms Paget would facilitate X to maintain his relationship with Mr Paget. One of the concerns is that Ms Paget appeared to be uncertain about whether she and Mr S (sic) would live together as this could be quite an issue for X given that X feels uncomfortable with Mr S (sic). In my view there are too many unknown factors about Ms Paget’s intended relocation. What is known is that Ms Paget has enrolled X into a local grammar school and that she has discovered that X could board there if she goes away. In my view this means that there are no supports in place in (omitted) which becomes a concern that Ms Paget would be prepared to leave X in a place so far away from his support network. Relocation for X to (omitted) may be quite traumatic under the circumstances of too little being known about this relocation.
68. It is my view that given the circumstances, X would adjust well to Adelaide to live with Mr Paget whereas X may find it difficult to adjust to relocation to (omitted) away from all of his supports and family.
It was Ms J’s recommendation at that time that X should be permitted to relocate to live with Mr Paget in Adelaide. She also recommended that X be referred to a counsellor and that Mr Paget and Ms Nicholson attend mediation to “assist them to set out some rules and guidelines for communicating about X.”
Ms J’s first report was prepared in anticipation of a trial beginning on 10 November 2014. However, the trial was unable to proceed on that day and Ms J was required to prepare an updated report for the trial beginning on 12 October 2015.
Ms J’s second report is dated 2 September 2015.
In the introduction to her second report, Ms J notes that “the issues for this update report have not changed since the previous report. Mr Paget is requesting X live with him in Adelaide while Ms Nicholson is requesting that X live with her in (omitted), Queensland.”
Ms J noted, as she had in her first report, that the paternal grandmother and the maternal grandparents, all of whom live in Melbourne, continued to be involved in X’s life.
She also noted that the relationship between Mr Paget and Ms Nicholson had not improved and remained one of high conflict.
In addition to the reasons given to Ms J in interviews for her first report, Mr Paget raised concerns about (omitted) School not having casual boarding facilities, as well as the significant increase in costs for travel between (omitted) and Adelaide as opposed to between Melbourne and Adelaide.
Mr Paget was again critical of Ms Nicholson’s parenting style and said that while he had attended a post-separation parenting course, Ms Nicholson had not.
Ms Nicholson gave Ms J a long list of reasons why she wishes to relocate to (omitted) with X, saying that X was already enrolled at (omitted) School for the 2016 year, that (omitted) provided opportunities for a family-based outdoor life because of the weather, that “the airport in (omitted) is easy to commute”, that she had plenty of opportunity for work in the area, that X’s love of (hobbies omitted) was able to be met in (omitted) and that X would like to (studies omitted) and there is a course in that subject at (omitted) University in (omitted).
Ms Nicholson acknowledged that X continued to resist the idea that he might move to (omitted) and said that she would encourage X’s friends to visit him there and to continue the social media connections they already have in (omitted).
Ms Nicholson confirmed that she intended to live with Mr S and that they would look for a house with four bedrooms so that X would have his own room.
When Ms J asked Ms Nicholson how she would feel if the Court rejected her proposal to move to (omitted) with X, she said that she would feel devastated and that “the justice system is wrong”.
When asked whether the “basic reason” for her wish to relocate to (omitted) was her relationship with Mr S, Ms Nicholson specifically denied that suggestion, saying that she loved the climate in (omitted) and would want to relocate whether or not her relationship with Mr S continued. I note that she confirmed that position in evidence at trial.
Mr S accompanied Ms Nicholson to the interviews for Ms J’s second report, having flown down from (omitted) for that purpose.
Ms J interviewed Mr S, who said that he had moved to (omitted) for work purposes in 2011, that he and Ms Nicholson planned to stay together, that he believed Ms Nicholson would be able to find work in (omitted) and that he has a support network of friends in that city.
In addition, Mr S told Ms J that he thought that X was feeling more comfortable with him and that he understood how X might have felt on seeing the sexually inappropriate text Mr S had sent to Ms Nicholson.
When X, by then 12½ years old, was interviewed for the purposes of Ms J’s second report he described positive relationships with both his parents and with both Mr S and Ms S. He was also positive about his relationship with Y and Z.
He was adamant that he wished to remain living in (omitted) and said that he would “probably run away” if it were decided that he should live in (omitted). However he also said he would run away if orders were made that he live in Adelaide. He said he would be “the happiest kid alive” if he were able to remain in (omitted).
Again, the observation of X with each of his parents (and with Mr S) was described as positive, relaxed, and comfortable.
Ms J notes that X’s view had changed somewhat since her first report as he was now saying that he would not want to move to Adelaide.
She says the following in relation to X’s views:
67. Much to the shock of Mr Paget and Ms Nicholson, X has his own strong view of where he wants to live and it is not Adelaide, which is changed since the previous report, and it is not (omitted). Ms Nicholson was also of the view that X liked the school in (omitted) she has enrolled him in but X has a very opposed view to this. No doubt X’s feelings will come as quite a shock to both Mr Paget and Ms Nicholson and may create a dilemma particularly for Ms Nicholson. X is a 12-year-old child who is mature enough for his age and should have his view listened to but X’s view is not consistent with what Mr Paget or Ms Nicholson is requesting.
68. The difficulties with what X is requesting would mean that Ms Nicholson would have to sacrifice her relationship with Mr S and resign herself to a long-distance relationship with Mr S which they have now had for three years. It is doubtful that Mr Paget would sacrifice his work, home and relationship to relocate back to (omitted). It is unknown as to whether Mr S would be prepared to also make such sacrifices to relocate to (omitted) but all three adults expect X to sacrifice his settled life in (omitted) so that they can live their life how they had chosen. It is a sticky situation as Ms Nicholson should be entitled to have opportunities and her relationship as does Mr Paget and Ms S.
It was Ms J’s view that while she had no concerns about X’s ability to maintain a long distance relationship with both parents if X were forced to relocate to either (omitted) or Adelaide, she also said “he may carry some anger toward both Mr Paget and Ms Nicholson with a risk to his relationships with each of them for placing him in such a position, so in the future Mr Paget and Ms Nicholson will have some hard work to do with X in healing their relationships with him”.
Ms J’s conclusion was that X would manage better in Adelaide than he would in (omitted) as he had spent many holidays there and had developed relationships with Ms S, Z and Y. It was also her view that as X is entering adolescence he would particularly identify with Mr Paget as his male role model.
It was therefore her recommendation that if X were not to remain in (omitted), he should live in Adelaide with Mr Paget and should spend at least half school holidays with Ms Nicholson, as well as keeping in contact with her on a regular and frequent basis by telephone, Skype, text and email.
At trial, when Ms J was told that Ms Nicholson’s position had now changed and that she would be going to (omitted) whether or not X was with her, Ms J said that she had understood that Ms Nicholson was determined to go to (omitted) and that it did not surprise her that she was no longer seeking alternative Orders that X live with her in (omitted).
Under questioning from Mr Paget’s counsel about whether X’s father would be the best male role model for him, Ms J said that Mr Paget is both X’s biological father and the father figure he has grown up with, and that Mr Paget would continue to be important as a role model to X into his adulthood.
The net worth of the parties’ property for the purpose of these proceedings is thus uncertain because either the parties did not provide or agree upon valuations or because the Court is unaware of the actual sale proceeds from the sale of two properties and a motor vehicle. There is no excuse for the first of those situations arising although I cannot say whether it is the result of “lazy lawyering” or the unwillingness of the parties to address that issue.
The uncertainty of the value of the pool will, of course, make the crafting of orders more difficult.
D.Is it just and equitable to alter those interests?
Section 79(2) of the Act states that a Court may not make an order altering the property interests of parties to a marriage unless it is satisfied that it is just and equitable to do so.
In Stanford v Stanford[2], the High Court said the following at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.
[2] Stanford v Stanford [2012] HCA 52
In Bevan & Bevan[3] the Full Court said that the circumstances described in the above passage of the Stanford judgment “encapsulate the vast majority of cases”[4] .
[4] Bevan &Bevan [2013] FamCAFC 116 paragraph 70
In this case the parties were in a relationship and then married for about 20 years. They acquired property together and are now separated. Therefore there is not and will not be common use of their property in the future.
As there is nothing in this case to distinguish it from “the vast majority of cases”, I find that it is just and equitable in all the circumstances to consider an alteration to these parties’ property interests.
E.If it is just and equitable, what were the parties’ contributions to the property?
At the time of cohabitation, it is the wife’s evidence that she owned a property at (omitted), but she conceded at trial that that property had been sold within a year of cohabitation and its proceeds had been used to buy a car and to pay debts. In other words, its value did not flow into the real property jointly purchased by the parties.
During the relationship and marriage, the wife worked full time except for her period of maternity leave and the husband worked intermittently, staying home and, he says, looking after X when he was unable to find work.
On the evidence before the Court then, the contributions of the parties during the relationship and marriage can be said to have been equal as they were either working and contributing their earnings to family expenses, or they were looking after X and contributing to the welfare of the family.
However, the wife claims that she made considerable and significant post-separation contributions to the parties’ property in that she managed the (omitted) business at Property L, paying the Property L and Property A mortgages and reducing the shareholder loans from the proceeds.
E(i) What were the post-separation contributions of the parties?
The parties separated in August 2012. Until that time, it appears that they had lived at Property L.
From about mid-2013, Property L has been let out as a fully furnished holiday house and the evidence is that the income from that enterprise has covered the mortgage payments on that property.
It is not in contention between the parties that the management of that enterprise has been conducted solely by the wife, who has been responsible, inter alia, for liaising with the letting agent and guests, ensuring that the property has been maintained inside and out and ensuring that the mortgage has been paid.
It was her evidence at trial that the management of that enterprise has been time-consuming and onerous and that she would not have been able to conduct it without the assistance of her father in the form of gardening and lawn mowing.
Ms Nicholson has been in control of all income received from the (omitted) enterprise.
There is little doubt that it is she who has made virtually all of the non-financial post-separation contributions to that enterprise.
As a result of that enterprise, the mortgages over Property L has been paid and the property maintained in good order.
As a result of those contributions, Ms Nicholson claims post separation financial contributions to the maintenance and improvement of the property itself, but as she received all income from the enterprise, the question of how those contributions are to be assessed is at least partly dependent on how that income was applied.
E(ii) How was the income from the parties’ property at Property L (“the Property L property”) applied?
It does not seem to be in contention that some of the income from the Property L (business omitted) enterprise was applied to mortgage payments in relation to that property.
Further amounts were applied to the Property A mortgage and it would appear that both mortgages were covered by the income from that enterprise.
In addition, the day-to-day costs of the enterprise, in the form of things like linen laundry expenses, grounds and pool maintenance expenses, agents fees, utilities and the preparation of the property for new guests, were also paid from the income received by way of rental.
However, the husband claims that in addition to the payment of those costs, the wife has paid personal expenses from the funds received by way of rental income the enterprise. He says that the wife should account for the receipt of those monies as part of these proceedings as he considers the income from the Property L enterprise to have been joint income.
E(iii) Has the wife paid personal debts from joint business funds?
The evidence before the Court, and particularly that adduced at trial, shows that Ms Nicholson did pay some personal expenses from the account into which the Property L enterprise income was deposited.
On 30 September 2013, Orders were made by consent in the following terms:
1 (a) That all rental monies obtained for the property at Property L to be paid (sic) into a bank account in joint names (“the Property L account”).
(b) That the wife be permitted to make the following payments from the Property L account:
i.the Property L mortgage payments in full, currently $4,626 per month;
ii.cleaning expenses (including linen) and gardening expenses;
iii. commissions, fees and advertising;
iv. repairs, maintenance and replacements;
v. council rates and utilities;
vi. insurance;
vii. guest amenities; and
viii. livestock feed.
(c) The parties are not to make any payments, withdrawals or transfers from the Property L account other than those referred to in paragraph 1(b) hereof without the written consent of both parties’ solicitors.
(d) The payment of any unanticipated or extraordinary expenses for the Property L property shall not unreasonably be refused by the parties.
It was the wife’s evidence that she had opened the account mentioned in the 30 September 2013 orders and that she had a sent an email to the husband to advise him about that, but had received no response.
Until then, income and expenses from the Property L (omitted) business were transacted through her own personal (omitted) Bank account.
The wife conceded under cross-examination that she had actually disregarded the Orders of 30 September 2013 in that after that date, she was still using her personal account to receive income and pay expenses for the (omitted) business. Her explanation for that was that she had been struggling financially at the time.
However, bank statements tendered by the husband showed that there had been income from the (omitted) business deposited to her personal account in October 2013 and in May 2014. Most of the expenses set out in those statements were personal in nature, although some of the monies were used to pay the Property L mortgage.
Pertinently, Ms Nicholson agreed with Mr Paget’s counsel that only she and not Mr Paget, had received any benefit from the operation of the (omitted) business at Property L.
Clearly Ms Nicholson did not comply with the Orders made by consent on 30 September 2013 and I do not accept her explanation for the non-compliance.
Nevertheless, it was she who conducted the entire enterprise in relation to the letting of the Property L property as a (business omitted) and there is no evidence before the Court that there was any arrangement between her and the husband for her to be recompensed for that considerable amount of work.
In those circumstances, provided that the sums used for her personal expenses from the Property L income were not manifestly excessive in relation to a sum that might be reasonable recompense for her services in that regard, I do not think that the wife ought to be held accountable in these proceedings for those sums.
At trial, the husband tendered bank statements from Ms Nicholson’s personal (omitted) Bank account for the months of October 2013 and May 2014.
Those documents show income from the Property L enterprise of at least $3047.57 in October 2013 and $4781.53 in May 2014[5]. They show withdrawals which are clearly not associated with the expenses of that enterprise of approximately $1000 in October 2013 and $1140 in May 2014.
[5] These are deposits made from "(omitted)" but there are other deposits by way of direct credit from individuals in sums ranging from $350 to $1282.50 and totalling $2020 in October 2013 and $3132.50 in May 2014, which are likely to be income from the Property L enterprise.
For those two months then, the wife spent a maximum of between 25% and 30% of the income from the enterprise on her personal expenses. If other direct deposits shown in the bank statements tendered are indeed for (business omitted) of the Property L property, that percentage drops dramatically.
I do not consider those amounts to be manifestly excessive if they are considered to be payment to Ms Nicholson for her services in managing the Property L (omitted) enterprise.
Of course, that being the case, Ms Nicholson having been paid for those services from the income of the enterprise, she cannot be said to have made post separation contributions in the form of those services, save perhaps for the fact that she has ensured that the Property L and Property A mortgages and rates were paid.
That she has done so for the two years and two months between the date of separation and trial means that she ought to be given some credit for those contributions.
When all the above evidence is considered, I find that the contribution-based entitlements of the parties to the acquisition, maintenance and improvement of their properties should be apportioned 52% to the wife and 48% to the husband on the basis that the wife made some significant post separation contributions by ensuring that the mortgages and rates on the Property L and Property A properties were paid.
F.Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
Section 75(2) of the Act sets out the factors the Court must consider when deciding whether to make an Order for one of the parties to pay spousal maintenance to the other. Those factors are:
Section 75 (2)(a) the age and \ of health of each of the parties
(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
(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
(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
(2) (e) the responsibilities of either party to support any other person
(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
(2) (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
(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
(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
(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
(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
(2) (l) the need to protect a party who wishes to continue that party's role as a parent
(2) (m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation
(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; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto 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 of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii)
(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
(2) (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
The husband is 43 years old and works full-time as a (occupation omitted), earning about $75,000 a year.
The wife is 46 years old and works in her own business as a (occupation omitted) earning at least $60,000 a year.
There is no evidence that either suffers from any particular health problems and no reason to suppose that they do not each have the capacity to keep working until retirement age.
One of them will have the primary care of X until he is 18 and probably beyond. Even with child support paid by the other that will be an expensive obligation, especially as X is involved in a considerable number of extra-curricular activities.
In taking that consideration into account, I will need to craft alternative property Orders, depending on who X will live with.
Both parties have repartnered, although Ms Nicholson does not yet live with Mr S, and the Court has little information about the financial circumstances of either him or Ms S, other than that both are employed full time.
In all the circumstances and considering the matters set out in Section 75(2) of the Act, I find that it is appropriate to make an adjustment to the contribution-based entitlements of the parties such that there is a 2.5% adjustment in favour of Ms Nicholson because her financial position is less favourable than Mr Paget’s and a 7.5% adjustment in favour of the party with whom X lives. That is, if X remains living with Ms Nicholson in Melbourne, there will be an adjustment to her of 10%. on the contribution-based entitlements of 52%/48%. If X lives in Adelaide with his father, there will be an adjustment to Mr Paget of 7.5%.
That is, in the former situation, Ms Nicholson will receive 62 % of the parties’ property and Mr Paget 38%.
In the latter situation, Ms Nicholson will receive 54.5 % and Mr Paget 45.5 %.
G.In light of the above findings, what orders should be made to effect a just and equitable division of property between the parties?
I made Orders at the end of trial, with the consent of the parties, for the sale of the Property L and Property B properties and for their net proceeds to be held in trust by the wife’s solicitors pending final orders. The Court is unaware whether those properties have been sold, or, if so, what their sale proceeds amounted to.
However, Orders were made for those sale proceeds to be placed in the trust account of the wife’s solicitor, so while I cannot make Orders about specific sums of money, I can make Orders about proportions in relation to the whole property pool.
That is, I will make Orders that the parties will each retain certain assets whose value is known, and that when those values, the value of their interest in the Property A property and the precise sum from the sales of the Property L and Property B properties and the Nissan motor vehicle are certain, then the wife will receive either 62% or 54.5% of the total value of the non-superannuation assets and the husband will receive either 38% or 44.5% of that total value, depending on where X lives.
I will make orders that provide for Ms Nicholson to retain the following assets whose value is to be considered in the total value of the assets:
·her business valued at $122,600.00
·the caravan valued at $21,000.00
Mr Paget will retain the following on the same terms:
·The proceeds of sale from the sale of the parties’ boat in the sum of $2,500.00
·The parties’ two-thirds interest in the Property A property
G(i) Should there be an order be made for a superannuation split in relation to the husband’s superannuation interests?
According to their sworn Financial Statements and Outline of Case Documents, the wife has superannuation entitlements of $26,791.00, with $13,313.00 having accumulated since separation, and the husband has entitlements worth $120,193.00, with $43,908.00 having accumulated since the commencement of these proceedings. That is, the wife’s accumulation during the relationship and marriage can be said to have been about $13,478.00 ($26,791.00 minus $13,313.00), while the husband’s was about $76,285.00 ($120,193.00 minus $43,908.00). They cohabited for about 20 years and each can be said to have contributed to the other’s superannuation equally during that time.
Their total accumulations during that period are about $89,763.00 ($13,517.00 plus $76,285.00).
Because the contributions to the joint superannuation accumulations were equal, each ought to retain half of entitlements worth $89,763.00 – that is, $44,881.50.
Ms Nicholson has current entitlements of $26,791.00, so in order for her to obtain a half share in the joint accumulation entitlements, there would need to be a superannuation split from the husband’s superannuation entitlements to hers of $18,090.50.
There is no mention of a superannuation splitting order being sought in the husband’s Outline of Case Document, although the wife states in her Outline of Case Document that the husband is seeking such an order.
I can find no mention of a proposed superannuation split in the evidence given by the parties at trial.
Nevertheless, despite those facts, the entitlement to be transferred is sufficiently significant that I do not believe it would be just and equitable for the husband to have to account for it in cash or by way of a lesser interest in other property. Therefore, I will make an order that a superannuation split be made from the husband’s entitlements to the wife’s using a base amount of $18,090.50.
As it appears that neither party has notified the husband’s superannuation fund trustee of any proposed superannuation splitting order, I will order the parties to provide a copy of the relevant orders to the trustee and will allow for the superannuation splitting order to come into effect upon one or both parties providing evidence to the other and to the Court, that the trustee has been afforded procedural fairness.
Conclusion
When all the minutiae and complexity of this matter are removed, it relates, at its core, to the decision Ms Nicholson must now make.
The Court considers that her decision to remove the option of her remaining in (omitted) with X from the proceedings on the first day of trial was an attempt to abdicate responsibility for that decision and to force the Court to make it for her.
Being conscious of the Court’s resources and of the potential for further proceedings if that option were not considered, I have found that it is in X’s best interests to remain living in (omitted) with his mother.
His mother must now decide whether to do so, or whether to relinquish the major part of X’s care to his father and move to (omitted) to pursue a different life with Mr S.
That decision will have consequences not only for X’s care but for the division of property between the parties and no one can envy the task which now confronts Ms Nicholson.
I certify that the preceding five hundred and four (504) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 3 May 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Procedural Fairness
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