PASCOE & PASCOE
[2016] FCCA 1401
•16 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PASCOE & PASCOE | [2016] FCCA 1401 |
| Catchwords: FAMILY LAW – Child Maintenance – husband resides in (country omitted) – duty of parents to maintain children – published research in relation to costs of children. FAMILY LAW – Children – whether children should be permitted to travel to (country omitted) – Hague Convention not applicable. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 66C, 66J, 66K, 75, 79, 90MZD Evidence Act 1995, s.140 |
| Cases cited: Beck & Sliwka (1992) FLC 92-296 |
| Applicant: | MS PASCOE |
| Respondent: | MR PASCOE |
| File Number: | LNC 207 of 2012 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 2 & 3 February 2016 |
| Date of Last Submission: | 3 February 2016 |
| Delivered at: | Launceston |
| Delivered on: | 16 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Higgins |
| Solicitors for the Applicant: | Bishops |
| Counsel for the Respondent: | Ms A Higgs |
| Solicitors for the Respondent: | Dobson Mitchell & Allport |
ORDERS
Property orders
That within 60 days of today MR PASCOE (“the husband”) must pay the sum of twenty thousand dollars ($20,000) to MS PASCOE (“the wife”).
That the parties’ interest in timeshare accommodation at the (omitted) in (country omitted) (“the timeshare”) be sold and all net proceeds after payment of any reasonable costs associated with the sale are to be paid to the wife.
That the timeshare be sold in such manner and upon such terms as the wife may decide and for such purpose the husband must comply with any reasonable request by the wife in relation to the sale.
That the husband and the wife do all things and execute all such documents as may be reasonably necessary to ensure that the timeshare is sold in accordance with these Orders.
That notwithstanding the provisions of Orders No. 3 and 4 hereof, the wife has liberty to apply in relation to the administration of the sale of the timeshare.
That whenever a splittable payment is payable in respect of any superannuation interest of MR PASCOE (“the husband”) held with the (omitted) Superannuation Fund in Tasmania (“(omitted)” Fund), Member number (omitted) (“the superannuation account”):
(a)MS PASCOE (“the wife”) is entitled to be paid the amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 by reference to a figure of one hundred per cent (100%); and
(b)there is a corresponding reduction in the entitlement of the husband as a consequence of this Order.
That the Court notes the correspondence between the wife’s solicitors and the trustee of the husband’s superannuation account (“the Trustee”) on 25 January, 19 February and 25 February 2016 AND THE COURT DECLARES that the Trustee has been accorded procedural fairness in relation to the making of the order in accordance with subsection 90MZD(1) of the Family Law Act 1975.
That these Orders bind the Trustee.
That the wife’s solicitors serve a sealed copy of these Orders upon the Trustee within twenty eight (28) days of the date hereof.
That for the purpose of these Orders the operative time shall be four business days from service of these Orders upon the Trustee.
That until the Trustee has effected the splittable payment in favour of the wife pursuant to these Orders the husband, his personal representatives and any person or persons acting on his or their behalf be and are hereby restrained from disposing of all or any amount payable to the husband and/or his personal representatives, received by or held in trust, or for the benefit of him or them.
That the parties and the Trustee each have liberty to apply in relation to the administration of these Orders
Child maintenance orders
That MR PASCOE (“the husband”) must pay to MS PASCOE (“the wife”) the sum of two hundred dollars ($200) per week per child for X born (omitted) 1999, Y born (omitted) 2001 and Z born (omitted) 2008 (being a total of $2,600 per month).
That such maintenance is to be paid monthly on the first day of each calendar month into a bank account to be nominated by the wife and the first monthly payment of $2,600 is due and payable on 1 July 2016.
That the maintenance to be paid pursuant to Orders No. 13 and 14 hereof be varied on 1 January in each year (“the review date”) commencing on 1 January 2017 to such sum as shall be determined by multiplying the maintenance being paid on the review date by the fraction N/B where “B” is the Consumer Price Index for Hobart (All Groups) published by the Australian Bureau of Statistics (“the CPI”) in respect of the quarter year ended on the day 12 months prior to the review date, namely 31 December; and “N” is the CPI in respect of the quarter year ending on the day immediately preceding the review date.
Parenting orders
That subject to Order No. 17 hereof the husband and the wife (“the parties”) have equal shared parental responsibility for X born (omitted) 1999, Y born (omitted) 2001 and Z born (omitted) 2008 (“the children”).
That the wife have sole parental responsibility for the children in relation to medical emergencies which may occur when the children are in her care and the wife must notify the husband of any such emergency within 24 hours of it occurring.
That the parent with whom the children are living at the relevant time will have responsibility for making day to day decisions concerning the children without reference to the other parent.
That the children live with the wife.
That the husband be and is hereby restrained from removing any of the children from Australia without first obtaining the written consent of the wife or an Order to that effect from a Court of competent jurisdiction.
That the husband spend time with the children in Australia for two 14 day block periods each year and one 21 day block period each alternate year when the children’s school holidays coincide with the husband’s holidays.
That the husband’s 21 day block period referred to in Order No. 21 hereof occur in the summer school holidays in 2016 and each alternate year thereafter with such to commence prior to 24 December on a date to be agreed between the parties but failing agreement on 23 December.
That the husband spend time with the children at Easter in 2018 and each alternate year thereafter as follows:
(a)In the event that the husband’s school holidays coincide with the children’s school holidays, the husband’s Easter time with the children will be included in one of the 14 day block periods referred to in Order No. 21 hereof; and
(b)In the event that the husband cannot exercise the full 14 day block period referred to in Order No. 21 hereof, the husband is to spend time with the children from 5.00 pm on Easter Thursday until 5.00 pm on Easter Monday with this time to be in addition to the 14 day block periods referred to in Order No. 19 hereof.
That the husband must provide the wife with at least 28 days’ notice in writing of his intention to exercise his time with the children in accordance with these Orders.
That in addition to the block periods referred to in Order No. 21 hereof, the husband spend time with the children on weekends if he is visiting Australia at times to be agreed between the husband and the wife but failing agreement from Friday at 4.00 pm until Sunday at 4.00 pm each weekend during his visit but if the husband is in Australia for more than one month, the time he spends with the children shall be fortnightly from Friday at 4.00 pm until Sunday at 4.00 pm.
That in the event that the husband is taking the children interstate during the block periods referred to in Order No. 21 hereof, the husband must provide in advance to the wife copies of flight itineraries, tickets and contact details for any accommodation where the children will be staying.
That unless otherwise agreed between the parties, handovers of the children from the care of one parent to the other are to occur at the children’s schools when that is appropriate or at the mother’s home when it is not appropriate.
That the husband communicate with the children:
(a)via Skype each Sunday between 5.00 pm and 7.00 pm Tasmanian Time and at other times to be agreed between the parties;
(b)via their mobile telephones at reasonable times; and
(c)via telephone calls to the wife’s home telephone or the wife’s mobile telephone at days and times to be agreed between the parties or failing agreement, every three days between 5.00 pm and 7.00 pm Tasmanian Time.
That when the children are spending time with the husband, the wife is to be able to communicate with the children at least as frequently as provided for in Order No. 25 hereof:
(a)by use of the husband’s mobile phone and the husband must facilitate communication between the children and in particular if the children request to communicate with the wife;
(b)by using a free chatting application on the children’s iPods or via text message on the children’s mobile phones at the children’s discretion; and
(c)via Skype in the event that the husband and the children are interstate.
That the parties each be and are restrained from denigrating the other in the presence or within the hearing of the children.
That the parties each be and are restrained from denigrating the other during communication with that other party.
IT IS NOTED that publication of this judgment under the pseudonym Pascoe & Pascoe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 207 of 2012
| MS PASCOE |
Applicant
And
| MR PASCOE |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties in these proceedings are seeking orders in relation to their children and their property.
The Applicant is MS PASCOE (“the wife”) and the Respondent is MR PASCOE (“the husband”). They have three children:
·X born (omitted) 1999;
·Y born (omitted) 2001; and
·Z born (omitted) 2008.
They were married in Australia in (omitted) 1996 and had not lived together prior to their marriage. They were living in (country omitted) when they separated in December 2010 and they continued to live in (country omitted) for approximately 18 months after they separated. However, the wife and the children returned to live in Australia in June 2012.
The parties’ divorce became effective in July 2012
The children now all live with their mother in Tasmania and the husband continues to live in (country omitted).
The parties’ agreements and disputes
It became clear from the Case Outline filed on behalf of each party and from concessions made during the hearing that arrangements for the children were very largely agreed. Those agreements included the following:
·That the parties will have equal shared parental responsibility for the children, save in relation to medical emergencies occurring when the children are in the care of the wife (but she must notify the husband within 24 hours).
·That the children will live with the wife.
·That the children will spend time with the husband in Australia for two 14 day block periods each year and one 21 day block period each alternate year when the children’s school holidays coincide with the husband’s holidays.
·That the 21 day block period referred to above will occur in the summer school holidays in 2016 and in each alternate years thereafter, commencing prior to the Christmas period on a date to be agreed but failing agreement on 23 of December.
·That the husband will spend time with the children at Easter in even numbered years.
·That the husband must provide the wife with at least 28 days’ notice in writing of his intention to exercise time with the children.
·That the husband can spend additional time with the children on weekends if he is visiting Australia, with times to be agreed but failing agreement from Friday at 4.00 pm until Sunday at 4.00 pm.
·That in the event that the husband takes the children interstate during any of his block periods, he must provide the wife with copies of flight itineraries, tickets and relevant contact details.
·That the husband can communicate with the children via Skype each Sunday (but the time of that was not agreed) and via their mobile telephones.
·That the parties must not denigrate the other in the presence or hearing of the children.
·That the parties must not abuse or denigrate the other during any communication with that other party.
There are three main questions that the Court must decide because the parties cannot agree. They are as follows:
i)Should the children be permitted to visit the husband in (country omitted)? This is a significant issue to the wife because the Hague Convention on the Civil Aspects of International Child Abduction is not in force between Australia and (country omitted) and she is concerned about the risk of terrorist events in (country omitted).
ii)How much child maintenance should the husband pay to the wife?
iii)What property settlement orders are appropriate?
It is not surprising that the third question was of great significance during the proceedings. Although the parties agree that they had effectively invested their life savings in a home in (country omitted) before they separated, they do not agree about the circumstances in which that home was sold after the wife and children returned to Australia.
In my view, that third question should be dealt with first, because:
·the resolution of that depends very much upon the husband’s credibility; and
·if he is found not to be a credible witness, that could have a significant bearing on how other questions are resolved.
Relevant Law – property
Prior to the High Court decision in Stanford v Stanford,[1] the general approach to the determination of a property settlement application appeared to have been well established by authority as a multi-step process.[2] The steps were said to involve:
a)Firstly, an identification and valuation of the property, liabilities and financial resources of the parties;
b)Secondly, an evaluation of the contributions made by the parties as defined in section 79(4) of the Act;
c)Thirdly, a consideration of any relevant matters under subsection 75(2) of the Act; and
d)Fourthly, before making an order adjusting property interests, being satisfied in all the circumstances that it is just and equitable to do so under subsection 79(2).[3]
[1] Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70
[2] See Lee Steere (1985) FLC 91-626; Ferraro (1993) FLC 92-335; Clauson (1995) FLC 92-595, Hickey (2003) FLC 93-143 and C & C (2005) FLC 93-220
[3] Also see Russell v Russell (1999) FLC 92-877
However, in Stanford, at paragraph 37, their Honours French CJ, Hayne, Kiefel and Bell JJ said:
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
In paragraph 40 of Stanford, their Honours went on to say:
40. Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.[4] To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[4] R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257
Subsection 79(2) provides that the “court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”
Subsection 79(4) sets out the matters to be taken into account when the Court considers what orders (if any) should be made in property settlement proceedings.
It is important to note that their Honours said this in paragraph 42 of Stanford:
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 wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In my view, this is one of those cases where it will be just and equitable to make a property settlement order because there is not and will no longer be the common use of property by the parties.
Since the end of 2002, courts have been required to treat any superannuation interest as “property” for the purposes of property settlements and in appropriate cases courts may “split” superannuation interests.
Background
As mentioned above, the parties were married in (omitted) 1996. They were both university students at the time and were also working for a well-known Australian (employer omitted). At the end of their second year at university, the husband obtained a scholarship to travel to (country omitted) to study for approximately six weeks. (It was during that time that he met an (nationality omitted) couple who became the legal owners of a property that the parties subsequently paid for in (country omitted). I will refer to that purchase further below.)
Following their graduations from university, the parties moved from Tasmania to New South Wales and purchased their first home together by borrowing approximately 90% of the purchase price. They subsequently decided to return to Tasmania at the end of 2002.
The wife had been involved in a serious motor accident in early 1990 (i.e. prior to their cohabitation and marriage) and in 2003 she received a payment of approximately $120,000 from the Motor Accidents Insurance Board of Tasmania (“MAIB”). After paying various costs she was left with approximately $100,000.
At about that time the parties sold their New South Wales property but cleared very little from that sale because the parties had not owned it for very long. They then purchased a property in Property E, Tasmania for $239,000, by using the wife’s MAIB payment of $100,000 and borrowing the balance.
In 2004 the parties moved into a farmhouse on the wife’s parent’s property and lived there rent-free. They let their Property E property to tenants.
In July 2005 they moved with their two older children to work overseas. They initially lived and worked in (country omitted). In August 2006 they moved to (country omitted) in (country omitted) where they both obtained employment as (occupation omitted).
In 2006 the parties purchased a timeshare interest in a resort in (country omitted).
Their youngest child was born in (country omitted) in 2008.
In October 2010 the parties sold their Property E property, clearing more than $340,000 after expenses. They used some of those funds to purchase a property in (country omitted) (“the (country omitted) property”). However, because they were not (nationality omitted) citizens it was necessary for the (country omitted) property to be registered in the names of (nationality omitted) nominees. The (nationality omitted) couple mentioned at paragraph 18 above became those nominees (“the (nationality omitted) nominees”). The wife describes that in her first affidavit as follows:[5]
Due to law in (country omitted), Mr Pascoe and I could not have the property registered in our names. Therefore we had to find a nominee who was (nationality omitted) to purchase the property on our behalf. Mr Pascoe was very close to the family he had lived with in (country omitted) when he was there on a scholarship during University. … They became the nominees and therefore the property we purchased in (country omitted) is registered in their name. The nominees will not speak to me about the property.
Mr Pascoe and I then spent 12 months or so funding renovation work to this property. Whilst the renovation work was being carried out we moved into a very small house paying minimal rent so as to continue to save money to fund the renovations. During this period, we separated. On completion of the renovation work, the children and I, along with our domestic staff moved into the new house. This is a very large three-storey property on 60 squares with a double garage, two kitchens and a pool. ….
[5] See paragraphs 95 and 96 of her affidavit filed 12 June 2013
In his trial affidavit filed 1 February 2016, the husband said this:
40. In Ms Pascoe’s initiating affidavit, she attempted to make the former matrimonial property sound better than it was. It is a far more modest property than she made out, and is not dissimilar from most other (country omitted) houses of its size and character. The house had two kitchens, however the second kitchen is traditionally called the “dirty kitchen” and is for the use of the domestic staff. It has a very basic set-up with a second hand sink and a portable second hand oven. There are 2 cupboards. There was a single car garage. The house was two storeys, not three (as Ms Pascoe had asserted). It has attic quarters for the domestic staff. Houses higher than two storeys are illegal in the area where the house is.
44. Ms Pascoe and I purchased the matrimonial property outright for $170,000.00 in 2010 using funds from a house in Property E, Tasmania which we had sold. Because we were not (nationality omitted) citizens, we could not have the matrimonial property registered in our names, and instead had to purchase it on a nominee scheme. The nominees are Mr A and Ms B (“the nominees’”), a husband and wife who hosted me as an exchange student when I spent a semester in (country omitted) during my university studies. The nominees were the registered owners of the property, but Ms Pascoe and I contributed the whole of the purchase price.[6]
[6] Paragraph 44 repeated what he had said in paragraph 40 of an affidavit filed on 20 November 2013.
The wife and children continued to reside in the (country omitted) property after the parties separated. She returned to Australia with the children in June 2012, after which the husband occupied the (country omitted) property.
The parties agree that the nominees have sold the (country omitted) property but they do not agree about how that occurred or what has happened to the sale proceeds. However, it is clear from the evidence that the wife has received none of those proceeds.
The husband’s credibility
In his first affidavit filed 20 November 2013, the husband said this at paragraph 42:
I am highly concerned about the strength of the nominee agreement between me and Ms Pascoe and the nominees. In the past few years my relationship with the nominees has deteriorated significantly. The nominees requested the papers of the house in order for them to pay the annual tax. The agreement was that they would pay the tax and I would reimburse them. When I reimbursed them and asked for the house papers back there was no reply. I became suspicious and made enquiries about the situation. I discovered that the nominees have separated and gone through an acrimonious divorce. Recently, I received a phone call from someone on behalf of the registered owners of our house threatening me to vacate the property. I am very worried about this situation. Legally the property is owned by the nominees and the law in (country omitted) does not consider a nominee structured ownership to be legal. As such, the nominees have the power to take the house from Ms Pascoe’s and my ownership, which would result in devastating financial loss to us both.[7]
[7] Highlighting added by me
In his trial affidavit filed more than two years later on 1 February 2016, he said this:
47. Mine and Ms Pascoe’s relationship with the nominees deteriorated significantly in the last few years, and I became very worried about the strength of the nominee agreement. The nominees requested the papers of the house in order for them to pay the annual tax. The agreement was that they would pay the tax and I would reimburse them. When I reimbursed them and asked for the house papers back there was no reply. I became suspicious and made enquiries about the situation. I discovered that the nominees have separated and gone through an acrimonious divorce. Recently, I received a phone call from someone on behalf of the registered owners of our house threatening me to vacate the property. I am very worried about this situation. Legally the property is owned by the nominees and the law in (country omitted) does not consider a nominee structured ownership to be legal. As such, the nominees have the power to take the house from Ms Pascoe’s and my ownership, which would result in devastating financial loss to us both.[8]
[8] Highlighting also added by me
In that same trial affidavit he said this:
50. On 27 October 2015 I made the decision to leave the former matrimonial property. The nominees had been trying to have people come and inspect the house while I was there. They had become aggressive towards me and I feared for my safety. One day when I was at work, my maid answered a phone call which she described to me as being very sharp and cold. I felt that the phone call was threatening in nature. The person who called said words to the effect of “tell Mr Pascoe that the house is not his and that he is illegally living in the house and that if he doesn’t move out they will involve the police.” My maid said that the caller did not identify themselves, but it was a male.[10]
[10] Highlighting added by me
It only became apparent during cross-examination of the husband that the telephone call that he twice claimed to have received was in fact a single telephone call that had been answered by the maid while he was at work at least twelve months before he moved out of the (country omitted) property. This exchange took place between the wife’s counsel (Ms Higgins) and the husband during cross-examination:[11]
[11] See page 76 of the transcript for Day 2
All right. You then give evidence – still in the same paragraph 47 – that: “Recently I received a phone call from someone on behalf of the registered owners of our house threatening me to vacate the property.” So when did that telephone call take place?‑‑‑Again, I don’t know the exact date. I didn’t actually take the call myself.
So is that the call that your maid took?‑‑‑Yes.
Yes because there was only one call, wasn’t there?‑‑‑Yes.
And is it your evidence it was that call that led you in October 2014 to move out of the house quite quickly?‑‑‑No.
No it wasn’t that call at all?‑‑‑No.
No because that call occurred – well, because you recall swearing an affidavit in 2013 when you filed your response?‑‑‑Yes.
Yes and you gave evidence in that affidavit about the telephone call in 2013?‑‑‑Yes.
Yes. So it was at least 12 months before you moved out, this alleged call to your maid took place, wasn’t it?‑‑‑Yes.
Earlier in his cross-examination the husband could not recall the year in which the nominees had requested the title documents for the property and he conceded that he had not informed the wife that he had handed those title documents to the nominees.
It was the husband’s evidence that he moved all his possessions out and locked up the (country omitted) property in a single day, being 27 October 2014. He had not told the wife about his plan to move out and he claimed that he did not know how keys to the (country omitted) property were obtained by the real estate agents who subsequently sold it. In relation to that, this exchange took place during the husband’s cross-examination by Ms Higgins:[12]
[12] Commencing at the foot of page 84 of the transcript for Day 2
Well, how did (omitted) Real Estate get the keys to the house?‑‑‑I don’t know.
Don’t know?‑‑‑I assume from the nominees.
But the nominees didn’t have keys?‑‑‑Someone had a key. Obviously someone had a key.
So you just left this house that you have – you and Ms Pascoe injected your life savings into this house and you just packed up and left it ‑ ‑ ‑?‑‑‑Mm.
‑ ‑ ‑ and just – didn’t go back to check on it?‑‑‑Prior to moving also I had to do renovations. It cost thousands of dollars.
Absolutely?‑‑‑Yes.
So you put lots of money into it after you separated and you just left and didn’t go back and check on it?‑‑‑I was scared.
Scared of what?‑‑‑I’ve explained the information from the (country omitted) lawyer was that I was in a very, very dangerous situation. I’ve been in a situation in (country omitted) where I’ve had a little bump on my shoulder on a motorbike and been surrounded by 20 people trying to protect the (country omitted) in the situation. We don’t have authority or rights in this country. This – this was my number one concern that I could potentially be in a – a bad situation and lose my job, my (omitted), which is the authority to stay in the country. I had had a friend prior to this also – or during this time coming through Customs in (country omitted), she cursed at somebody, used a profanity and was put into a holding room to be deported back to her country. Small things can have big consequences. Our then – our then (employer omitted) had to convince the authorities, “Don’t” – to not deport her. She – she said one word to an immigration official.
But you could have got your driver to drive past the house with you in the car to check on it. You could have done that and you wouldn’t have been ‑ ‑ ‑?‑‑‑Yes, I – I did drive past. Yes.
You did?‑‑‑But where I moved was about two or three ks away and I had no need to go in that direction, but I did drive past.
So it’s your evidence the nominees have then gone and sold the house. Is that what your evidence is?‑‑‑Yes.
How did they find out you had moved out?‑‑‑I have no idea, but people were coming to the house before I moved out.
They were coming to your house?‑‑‑Yes.
Who?‑‑‑I – I assume they were real estate agents.
What, you let them in your house?‑‑‑No, I didn’t. I asked ‑ ‑ ‑
Well, how did they get in your house?‑‑‑They didn’t come in the house; they came to the house.
So they’ve come to the house on the outside?‑‑‑One – I think there was one people (sic) who – I was still in bed – who was let in by my maid.
It was also the husband’s evidence that after the sale of the (country omitted) property he made no physical effort to contact the nominees other than to send a letter. He did not take the relatively short flight to (omitted) to negotiate with either of the nominees.[13]
[13] See pages 88 and 89 of the transcript for Day 2
Somewhat unusually, the husband appears to have still been a “friend” of both nominees on Facebook in late February 2015 (i.e. four months after he vacated the (country omitted) property). Screen shots on a page numbered 6 of Exhibit “W5” appear to show a photo of the husband and the children in the “Friends” sections of the Facebook walls of both nominees and each is clearly identified with the husband’s names, Mr Pascoe. Despite that, when it was put to him that he had ways of contacting the nominees in December 2014, his response was:
No, I – I was not aware that they were my friend on Facebook and I wasn’t aware that they have a photo of my children.[14]
[14] See the top of page 89 of the transcript for Day 2
That response clearly related back to his earlier evidence in cross-examination when this exchange had taken place:[15]
[15] See page 22 of the transcript for Day 2
And when you went to collect [the children] in December 2014, you took some lovely photos at the school of them in their uniforms?‑‑‑Yes.
And you sent them to the nominees, didn’t you, on Facebook?‑‑‑No.
I suggest the nominees were so proud that they had those photos from December 2014 up on their Facebook page?‑‑‑Not to my knowledge.
I do not profess to be an expert in relation to the workings of Facebook but I am aware of an “Issues Paper” prepared by Dr Marilyn Krawitz[16] for a recent Symposium,[17] which states:
Facebook … enables ‘users to identify, contact, and befriend other members’. Each Facebook user can post photographs, comments and videos on their profile page, called a ‘wall’. Other people who use Facebook can press a button underneath any post on a Facebook ‘wall’ to indicate that they ‘like’ a post or that the post makes them feel ‘sad’, ‘angry’, etc. A Facebook user can send a ‘friend’ request to another Facebook user. Assuming that the other user accepts the ‘friend’ request, the two Facebook users can see each other’s Facebook ‘wall’ (depending on their privacy settings). The Facebook users can also send each other private messages.
[16] Dr Marilyn Krawitz is a Senior Lecturer at the Law School of the University of Notre Dame Australia (Fremantle campus) and is a practising lawyer.
[17] Symposium: “Challenges of Social Media for Courts & Tribunals” held in Melbourne on 26 and 27 May 2016 by the Australian Institute of Judicial Administration and the Judicial Conference of Australia.
That accords with how I understand Facebook works, so I have little difficulty in concluding that the husband had a photograph taken of himself and the children when he visited Tasmania in December 2014 and that he used that photograph to identify himself on Facebook as a “friend” to both of the nominees. It must therefore follow on the balance of probabilities that his evidence about being unable to contact the nominees is false.
It is significant that his Facebook friendship with the nominees was still continuing at some time after a photograph was taken of him and the children in December 2014, because it is logical to conclude that he provided that photograph to them. It is also significant that both nominees were happy to show “Mr Pascoe” as their friend on Facebook in late February 2015.
The husband claimed that he vacated the (country omitted) property hastily because he felt threatened and because he might lose his right to live and work in (country omitted). However, that evidence does not sit well with other evidence he gave in a different context early on the second day of the hearing. When I asked him questions about how long it took him to get from the (country omitted) property to (country omitted) airport on the occasion when he took the children for a holiday just prior to them leaving (country omitted) in June 2012, he said:
I had at that time (employment omitted) the owner of (omitted) – she’s now a (occupation omitted) in (country omitted) – I (employment omitted), and they had organised the tickets and an aeroplane for us, and it was at (omitted) Airport …[18]
[18] See page 27 of the transcript for Day 2
From that evidence I conclude that through his employment he has connections with influential people in industry and government. Given that I have no evidence that the nominees have any such influence, I find it highly unlikely the husband was scared enough to vacate the (country omitted) property in the manner he described (as set out in part at paragraph 35 above).
I also have some concerns about the husband’s dealing with motor vehicles at around the time that the (country omitted) property was sold. He described those dealings as follows in his trial affidavit:
87. At the time of separation, I owned a Honda (omitted) vehicle. I sold this is (sic) mid-late 2014 to Ms R (“Ms R”), a friend and colleague of mine. Ms R had once driven the Honda vehicle and liked it so much that she offered to buy it from me. I initially declined, but she persisted and made me the hard-to-refuse offer of $40,000.00. I agreed, but on the condition that Ms R would lend me an additional $20,000.00 so that I could purchase a BMW vehicle, which she agreed to. This presented a very good opportunity to me as it meant that I could keep the interest-free vehicle loan which I had through my employer (usually, the loan must be paid out in full when the sale of the vehicle occurs). A copy of the transfer and sale papers are included in Annexure F of this affidavit.
88. One week before Christmas, Ms R took compassionate leave from school and flew back to (country omitted) to tend to her sick mother. While there she submitted her resignation to the (employer omitted), stating she would move back to (country omitted) after the (employment omitted) concluded in June. Before Ms R left for (country omitted) we spoke at length about her options and possibilities. I knew that it was a very high possibility that she would move. I knew that this would mean I’d have to pay my debt to her. I then approached my friend Mr G with the idea that he buy the car from me and I rent it back off him (renting a vehicle long term a very common and usual arrangement for expatriates here in (country omitted)). This arrangement would allow me to pay Ms R as well as pay my debt to Mr G. Mr G agreed. I sold the BMW to Mr G for $50,000.00, however he kept $30,000.00 in repayment for the money which I had borrowed from him for renovations and repairs to the former matrimonial home. With the remaining $20,000, I paid my debt to Ms R. I now rent the BMW from Mr G for $820 per month.
I note from Annexure “F” to the husband’s trial affidavit that Ms R appears to have purchased the husband’s Honda motor vehicle in September 2014.[19] However, Ms R did not provide an affidavit for these proceedings, notwithstanding that both parties’ lawyers were made aware on 4 May 2015 that this matter would be given a hearing in 2016.[20] Instead Ms R completed a statement before a Notary Public in (country omitted) only two working days before the start of the hearing. That statement reads as follows:
I, Ms R purchased a Honda (omitted) from Mr Pascoe for the sum of $40,000 and lent him a further $20,000 to purchase a new car.
As Mr Pascoe, a few friends and I were attending a function one weekend, I drove Mr Pascoe's Honda (omitted). I commented to Mr Pascoe and others that I would like to buy it. At first I was half joking, however, after contemplating the idea and speaking to my children I decided to make an offer to Mr Pascoe. He agreed but on the condition that I lend $20,000 to him to purchase a replacement car.
Our transactions were carried out using cash, apart from a small sum which I transferred from (country omitted). This money was sent to the wrong account, sent back to (country omitted) and then finally transferred to the correct account. As this took several weeks, I paid Mr Pascoe in cash and he later turned the amount transferred to him.
Since my recent decision to return to England at the end of this academic year Mr Pascoe has completed his loan with me.
[19] At page 39
[20] See Orders made on 4 May 2015
When the husband was cross-examined about his claimed sale of the BMW and its subsequent leasing back, this exchange took place:[21]
[21] Commencing at the foot of page 37 of the transcript for Day 2
Now, it’s your evidence that you’re now leasing your BMW?‑‑‑Yes.
Yes. Who do you lease it from?‑‑‑Mr G.
Yes, and what are the repayments?‑‑‑Monthly repayments are 815 or 820.
Are you not sure the exact amount?‑‑‑The exact amount, yes. I think I’ve recorded that also in my ‑ ‑ ‑
Well, I’ve got to put to you there’s no record of those payments coming out of your bank account, so how do you pay him?‑‑‑Most of my life is actually on cash. But actually, with – with the BMW, it has only just been sold because my friend, who is returning to the (country omitted), has only just informed me that she’s going to be returning.
But you’ve sworn in your affidavit on 1 February saying you’re leasing this BMW. So have you made any payments for it?‑‑‑One payment.
For the lease?‑‑‑Yes.
When did you make that payment?‑‑‑I don’t know the exact date, but ‑ ‑ ‑
But ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ within the ‑ ‑ ‑
Is it your evidence you take all of your salary out with cash, and you’re paying this person in cash?‑‑‑Yes.
Well, did you meet him with your cash?‑‑‑Yes.
When?‑‑‑When – when it’s due.
Well, when’s it due?‑‑‑1st – every 1st of every month.
So – well, you ‑ ‑ ‑?‑‑‑But that’s how Ms Pascoe and I lived for most of our life ‑ ‑ ‑
No, but ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ is using cash.
I want to focus on the payment for your lease for your BMW. So when did the first – you made one payment?‑‑‑Yes.
When did that first payment occur?‑‑‑I think it was 1 January.
1 January. So when did you leave Queensland?‑‑‑I can’t – I’m not sure.
Because you were in Queensland holidaying with your family over Christmas?‑‑‑Yes.
Yes?‑‑‑Most of my bills – and Ms Pascoe and I structured our life like this too – we would set aside budgets for each of our bills, and then our domestic staff would then pay those, and that’s the way – excuse me – all my bills are paid.
All right. Well, I’m still focusing on this first payment for the BMW. The person you lease it from is a male?‑‑‑Yes.
Yes. So what happened with the first payment? How did the transaction take place?‑‑‑All – all my bills, while I was away over Christmas, were paid by my domestic staff ‑ ‑ ‑ my water, my internet, electricity, everything.
Okay. Well, what did you set up, if you’re going to be away. Tell me about the arrangement?‑‑‑I leave the cash with my driver and my other domestic staff, and they take care of it. They ‑ ‑ ‑
You have to give them instructions, so what instructions did you give the driver or other member of your domestic staff for this lease payment?‑‑‑He – he knows all my bills that I have to pay.
Tell me. I don’t know, so you tell me where did they meet; how did it take place?‑‑‑I’m not sure what you’re asking.
Well what instructions did you leave for your driver? He’s not going to drive around with cash in the car. He has to go somewhere, doesn’t he?‑‑‑He does have cash. He has all the cash needed to pay all my bills, and he communicates with Mr G and – and pays it as he will do every month.
What did you tell the driver to do?‑‑‑ To pay it.
Yes. Did you have to say, “Ring him. Arrange to meet him”? What did you tell him?‑‑‑I’m not sure. I asked him to pay the bills like he pays all my other bills.
But this is the first payment. It’s the first payment of a new bill. What, your driver just knew. He just knows, does he?‑‑‑No. He was involved with the paperwork and everything as well for the car, so he – he knows, as he does my motorbike and has done the car. He goes to the police station. He renews the registration. He was involved with Mr G to organise the sale and the transfer paperwork …
Significantly, the husband produced no “sale and transfer paperwork” in relation to the alleged sale of the BMW to Mr G (nor did he produce any documents to substantiate a $30,000 loan he said he had earlier obtained from the mysterious Mr G).
I found the husband’s evidence in relation to his motor vehicle dealings to be thoroughly unconvincing. Indeed, I am of the view that I can only be satisfied about the following:
a)The husband sold his Honda (omitted) to Ms R in September 2014;[22] and
b)He purchased a BMW (omitted) for (country omitted money) (being a little less than $60,000 Australian) at about that time.[23]
[22] See page 39 of his trial affidavit
[23] See page 36 of his trial affidavit
The husband wants the Court to accept that after the parties cleared $338,500 from the sale of the Property E property,[24] they invested their life-savings in the purchase of the (country omitted) property with the assistance of nominees and even though he did not personally receive any direct threats from any person, he vacated that property in a single day. He appears to be suggesting that he and the wife should simply “cut their losses”, notwithstanding that those losses are very substantial on either party’s estimate of the value of the property. In this regard, the wife has received information that the property sold for approximately $900,000[25] and the husband estimates that the property was worth $459,000.[26]
[24] See paragraph 68(a) of his first affidavit
[25] Paragraph 119 of her trial affidavit
[26] Annexure “A” to the husband’s trial affidavit
In her closing submissions, Ms Higgins stated: [27]
It makes no sense whatsoever that the husband, when he says he found out for sure in February last year this property was sold, that he sat back and he did nothing. He was the one in (country omitted), not the wife. He was over there. His evidence as to whether or not he has made contact with the nominees was very vague and unclear. One would have thought if you found out the house that you’ve invested most of your life savings in has been sold, you would do everything under your power to try and retrieve those funds.
[27] See page 111 of the transcript for Day 2
Ms Higgins also submitted that I could reject the husband’s evidence about the sale of the (country omitted) property and make a finding that he had been involved in that process.
Proceedings under the Family Law Act 1975 are civil proceedings. Sub-section 140(1) of the Evidence Act 1995 states that the standard of proof in civil proceedings is that the Court must be satisfied on the balance of probabilities. Sub-section (2) specifically incorporates dicta in cases such as Reifek v McElroy,[28] Helton v Allen[29] and Briginshaw v Briginshaw,[30] all of which state that the degree of satisfaction which the civil standard of proof calls for may vary, having regard to the gravity of the facts of the particular matter. A passage of Dixon J’s judgment in Briginshaw reads as follows: [31]
The truth is, that when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality.
[28] Reifek v McElroy (1965) 112 CLR 517
[29] Helton v Allen (1940) 63 CLR 691
[30] Briginshaw v Briginshaw (1938) 60 CLR 336
[31] Briginshaw at p.361
In view of what I have set above about the husband’s credibility, I find that I do “feel an actual persuasion” that he came to an arrangement with the nominees to sell the (country omitted) property and share the proceeds of sale with them. In my view, it logically follows that their “deal” would have substantially benefited both the nominees and the husband.
The asset pool
I am of the opinion that it is reasonable to assume that the husband would have retained approximately half of the sale proceeds, so he should have received something in the vicinity of $450,000.
That would have enabled him to purchase a BMW outright (without the fiction of somewhat unusual loans from Ms R or Mr G).
The husband would also have received the proceeds of sale of the Honda motor vehicle that he owned before he transferred it to Ms R. He says it was sold for $40,000.
I therefore conclude that a notional non-superannuation asset pool to be taken into account should be as follows:
Asset $AUD (country omitted) property proceeds 450,000 (country omitted) timeshare (wife’s estimate) 24,000 Wife’s Mazda (her estimate) 12,500 Husband’s motor scooters (his estimates) 1,450 Wife’s furniture (her estimate) 4,021 Husband’s furniture (his estimate) 2,000 Total assets 493,971 Liabilities Husband’s loan from employer for car 10,525 Wife’s HECS debt 9,776 Husband’s HECS debt 4,512 Total liabilities 28,813 Net value of non-superannuation assets $469,158
I have not included:
·the BMW, because that would have been purchased from the proceeds of sale of the (country omitted) property that are included;
·the wife’s bank account because she has a credit card debt of similar value; or
·the husband’s claimed debt to his parents because he said that he used that money to pay legal fees and given what I have said above, I have concluded that he has not needed to borrow any money.
I am mindful that the concept of “notional property” is not usually appropriate. For example, in Mayne & Mayne Faulks DCJ said:[32]
By definition it would seem that property which has been spent when the matter is before Court is no longer there and is not property.
[32] Mayne & Mayne (2011) FLC 93-479 at paragraph 81. Emphasis in the original.
However, in Bevan & Bevan[33] the majority of the Full Court of the Family Court considered Stanford and made these comments:[34]
We observe that ‘notional property’, which is sometimes ‘added back’ to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute ‘property of the parties to the marriage or either of them’, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage - and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
[33] Bevan & Bevan (2013) FLC 93-545
[34] At paragraph 79
I also note that in Weir v Weir,[35]where the Full Court was dealing with an appeal against the refusal by a trial Judge to make orders in relation to unascertained property because it could not be quantified, the Court said:[36]
It seems to us that once it has been established that there has been a deliberate non-disclosure …… then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
[35] Weir v Weir (1993) FLC 92-338
[36] Nicholson CJ, Strauss and Nygh JJ at page 79-593
In financial matters, the obligation to make full disclosure is absolute. K & K is reported in an edited version only [37] (in relation to the issue of the removal of a next friend). However, in the unedited version of the decision of Nicholson CJ, Buckley and Kay JJ delivered on 24 December 2002, their Honours re-stated a long held principle as follows:[38]
Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour. This is the course the trial Judge adopted. It was a course clearly open to him and one that does not merit appellate interference.
[37] K & K (2003) FLC 93-135
[38] At paragraph 51 – emphasis added by me
Given the peculiar facts of this case, I consider that it is appropriate to include notional property in the non-superannuation asset pool set out above.
The parties’ sworn Financial Statements reveal that the wife has superannuation with RBF worth $35,405, and the husband’s superannuation with RBF has a value of $48,444.
Contributions
I do not propose to analyse in minute detail the parties’ individual contributions from employment or as homemakers and parents because it is not difficult to conclude that those respective contributions should be given equal weight. Certainly, the husband earned more than the wife when they lived in New South Wales but the mother was a full-time parent and giving (employment omitted). It is clear that the contributions “made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent”[39] should not merely be recognised in a token manner but rather they should be recognised in a substantial way.[40] That was reinforced in Ferraro, [41] when the Full Court said:
The task of evaluating and comparing the parties’ respective contributions where one party has exclusively been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a “level playing field”. Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and cannot be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role.[42]
[39] See section 79(4)(c)
[40] See Rolfe and Rolfe (1979) FLC 90-62 and Mallet v Mallet (1984) FLC 91-507
[41] Ferraro (1993) FLC 92-335
[42] Per Fogarty, Murray and Baker JJ at page 79,572
Similarly, in Bigelow & Reuter, [43] Kay J (sitting as the Full Court of the Family Court of Australia) said:
What was the relevant finding is that the wife, whatever she was doing in the course of the relationship, was not able to earn money at the same rate that the husband was able to earn, but there is nothing to indicate that she was not pulling her weight in terms of effort and endeavour.
[43] Bigelow & Reuter [2006] FamCA 1455
Having said that, there are two areas in which the wife’s greater contributions are very significant.
Firstly, the wife contributed $100,000 from her MAIB payment towards the purchase of the Property E property and as stated above, that resulted from a motor vehicle accident that she suffered prior to the parties’ marriage and cohabitation. Clearly, the husband cannot claim any contribution towards that $100,000. Further, that was the only contribution made by the parties towards the purchase of the Property E property other than funds provided by the mortgagee.
I note that in Pierce v Pierce the Full Court of the family Court of Australia said:[44]
In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home ...
[44] Pierce v Pierce (1999) FLC 92-844 at paragraph 28
In this matter, the wife’s contribution towards the Property E property enabled them to make a reasonable profit when that property was sold and in turn those funds enabled them to invest in the (country omitted) property. Clearly, wife’s contribution of $100,000 from her MAIB payment was the “springboard” that enabled them to invest their life savings in the (country omitted) property.
The other significant contribution on the part of the wife is that she has been almost entirely responsible for the financial support of the children since she left (country omitted) approximately 4 years ago. In that regard, it was clear from the evidence that the husband paid the wife no maintenance at all between her departure from (country omitted) in June 2012 and September 2014. This exchange took place during his cross-examination in relation to that issue:
So you didn’t provide financial support for your children between June 2012 until September 2014, when they were living back here in Australia, because of something you considered to be unfair of what had occurred back in (country omitted)?‑‑‑I felt that Ms Pascoe had excess money.[45]
[45] See page 65 of the transcript for Day 2
The husband conceded earlier in his cross-examination that he had the financial capacity to pay more than $250 a month for his children but he was “waiting for things to be put in place to work out what is the appropriate amount”.[46]
[46] Also at page 65 of the transcript for Day 2
I note that $250 per month amounts to less than $20 per week per child and for more than two years the husband was contributing nothing towards the financial costs of the children.
Based upon what I have set out above, I would have little hesitation in concluding that on the basis of contributions alone the wife should receive 70% of the non-superannuation asset pool. However, these matters are not decided on contributions alone (and, of course, there are complications in relation to the non-superannuation asset pool which I will refer to in greater detail below).
Subsection 75(2) factors
The husband is aged 41 years and the wife is 43 years old.
The husband is employed in (country omitted) and his Financial Statement reveals that, inclusive of a “gratuity” in lieu of superannuation and a living allowance, he receives his income of approximately $2,127 per week (depending on the exchange rate from US dollars). That is tax-free in his hands because his employer pays his (country omitted) tax.
The wife is employed as a (occupation omitted) and she receives a gross income of $1,907 per week. Her financial statement reveals that she pays tax at the rate of the $780 per week (which I assume includes some repayment of her HECS debt).
The husband is currently paying $250 per month ($57.70 per week) by way of maintenance for the children.
Neither party has a duty to support any other person other than the children.
Clearly, the subsection 75(2) factors would normally result in a further adjustment in favour of the wife.
Conclusions about property adjustment
Taking into account what I have set out above in relation to contributions and the subsection 75(2) factors, I would normally consider it appropriate to make orders that would provide for the wife to receive 75% of the value of the asset pool. Consequently, when I take into account the values of the wife’s furniture, car and HECS debt, I would have considered it appropriate to require her to receive property or cash worth an additional $345,000. However, that would have been in circumstances where those assets were in Australia and readily available for division. Clearly, that is not the case in this matter and I do not have jurisdiction in relation to funds that the husband has in (country omitted). Consequently, I must make orders that will enable the wife to receive the maximum value available notwithstanding that I consider such to be an inadequate settlement.
In those circumstances, I am of the opinion that the following should occur:
a)That the husband should pay to the wife the sum of $20,000 within 60 days;
b)That there be a splitting order in relation to the husband’s superannuation to provide a split of 100% of its value in favour of the wife;
c)That the timeshare accommodation in (country omitted) be sold and the wife should receive 100% of the net proceeds
In relation to the payment of $20,000 to the wife within 60 days, I note that the husband indicated that he would have no difficulty raising that sum when it was discussed in relation to the payment of a surety.[47] It is therefore appropriate that he pay such a sum to her within a reasonable period of time.
[47] See page 24 of the transcript for Day 2
I now turn to the other financial aspect of this matter; that being the question of what child maintenance orders should be made.
Relevant Law – child maintenance
The parties accept the reality that the Child Support (Assessment) Act 1989 (“the Assessment Act”) is not applicable to their children because the father is not residing in Australia and he is not liable to pay income tax in Australia.[48] In that regard, sections 10 and 12(3) of the Assessment Act are relevant.
[48] His (country omitted) income tax is paid by his employer.
Section 66C of the Family Law Act 1975 provides that both parents have a “primary duty” to maintain their children. That duty:
·is not of lower priority than the duty of the parent to maintain any other child or another person;
·has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself or any other child or another person that the parent has a duty to maintain; and
·is not affected by the duty of any other person to maintain the child or any entitlement of the child to an income-tested pension, allowance or benefit.
Section 66K of the Family Law Act sets out the matters that the Court must take into account in determining the respective financial contributions of the parents towards the financial support necessary for the maintenance of the children. However, the child support assessment regime can be of assistance at times when determining what child maintenance orders should be made in certain circumstances.[49]
[49] See Beck & Sliwka (1992) FLC 92-296 and Carr & Vincent (No.2) [2009] FMCAfam 648
Discussion – child maintenance
At Part N of her Financial Statement, the wife lists the children’s expenses at $840 per week.
Section 66J(2)(b) enables the court to have regard to relevant findings of published research in relation to the maintenance of children “to the extent to which the court considers appropriate in the circumstances of the case”. In that regard, the well-known “Lovering tables” (updated to June 2015) would suggest that the costs for two teenagers and a seven year old would be in the vicinity of $534. However, the calculations in those tables do not include expenses for housing, transport, school fees and uniforms, or medical and dental expenses. It is therefore not surprising that over the years Courts have tended to prefer the approach adopted in the equally well-known “Lee tables”.[50] The Lee tables show the costs for two teenagers and a seven year old to be in excess of $1,000 per week.
[50] See Streets & Streets (1994) FLC 92-509
The parties’ eldest child earns an income working part-time in his uncle’s (omitted) business. It is in the vicinity of $60 per week. However, I note that he is saving that money in order to put it towards the expense of a voluntary overseas mission associated with his church after he turns 18. I therefore propose to exclude his meagre income from my consideration of the children’s maintenance needs, particularly as the husband showed some reluctance to contribute towards the eldest child’s expenses for that overseas volunteer work. When I put it to him that he had not properly answered a question in cross examination, his response was that the eldest child “would be encouraged to pay for his own mission himself”.[51]
[51] See page 12 of the transcript for Day 2
As mentioned above, the husband earns $2,127 per week tax-free. His Financial Statement reveals that, excluding the BMW loan payments (which I have concluded he is not paying) and child maintenance, his total expenses per week are $1,562. However, I have found on the balance of probabilities that the husband has significant additional resources available to him, so it must follow that I find he has a greater capacity to pay child maintenance than his Financial Statement reveals.
The wife’s affidavit reveals that she has an income of $1,907 per week (excluding Family Tax Benefits[52] and child maintenance paid by the husband). Her expenses are $780 for income tax, $22 for car insurance, $11 for car registration and $235 for other living expenses for herself. The total is $1,048, so she appears to have “spare capacity” of $859 per week. However, that is clearly deceptive because that income was based upon her working five days per week and that was only available to her until the end of Term 2 in July 2016. She was hopeful of renegotiating additional days per week but she is only guaranteed three days per week.[53]
[52] See subsection 66J(3) of the Family Law Act 1975
[53] See paragraphs 25 and 26 of her affidavit
In addition, the wife is not paying any expenses for rent or mortgage. That is because she and the children have been living with the wife’s parents since their return to Australia. The wife’s unchallenged evidence is that she and her daughter share a bedroom and her two sons share another bedroom. Clearly, that is an unsatisfactory housing arrangement (when compared with that of the husband) and I note that the wife states that she hopes to receive a settlement that would enable her to obtain her own accommodation in the same area.[54] The husband lives in a three-bedroom house and does not appear to have any other person living with him.
[54] See paragraph 23 of her affidavit
The wife obtained information in relation to administrative assessment of Child Support from the website of the Department of Human Services.[55] The results were that, if the Child Support (Assessment) Act 1989 applied, the husband would pay:
·$507 per week for three children;
·$412 per week for two children; and
·$239 per week for one child.
[55] See Exhibit “W2”
When I take the matters set out above into account, I am of the view that it is appropriate for the husband to pay maintenance for the children at the rate of $200 per week per child. That will ensure that that the children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of their parents and that the parents share equitably in their support.[56]
[56] See section 66B of the Family Law Act 1975
I also conclude that the maintenance should be adjusted annually in line with movements in the Consumer Price Index (“CPI”) in order to obviate the need for the wife to seek future adjustments that may arise from cost of living increases.
In the first instance, the child maintenance will be payable monthly at the rate of $2,600 commencing on 1 July 2016. It will continue to be payable at that rate until varied because of a number of factors, including:
a)a CPI adjustment;
b)a child no longer being eligible for such maintenance (e.g. by turning 18); or
c)the Child Support (Assessment) Act becoming applicable (e.g. by the husband returning to live in Australia).
Relevant Law – parenting orders
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[57] In determining what is in a child’s best interests the court must consider the matters set out in section 60CC. That section refers to “primary considerations” and “additional considerations”.
[57] Section 60CA
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. [58]
[58] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[59].
Discussion – parenting orders
[59] Subsection 60CC(3)
Should the children travel to (country omitted)?
As mentioned above, the main parenting dispute between the parties is whether or not the children should be permitted to travel to (country omitted) to spend time with the husband. The wife’s position in relation to that is set out in the last four paragraphs of her affidavit as follows:
126. I am opposed to the children spending time with Mr Pascoe in (country omitted). The older children have indicated to me that they are not interested in returning to (country omitted). I had considered accompanying the children to (country omitted) but if Mr Pascoe was to withhold the children I have no legal options available to me while there.
127. I do not trust Mr Pascoe and I am fearful that I could not recover the children if he withheld them as (country omitted) is not a Hague Convention Country.
128. X will turn 18 in 2017 and Y in 2020 so I accept that in a couple of years’ time that they each may make the decision to travel to (country omitted).
129. I am also generally concerned for the children’s safety if they were to travel over to (country omitted) due to a possible terrorist attack.
Given what I have said above about the husband’s credibility, I am not surprised that the wife does not trust him. In those circumstances, I consider the wife’s fears to be well founded in the light of the fact that the Hague Convention on the Civil Aspects of International Child Abduction is not in force between Australia and (country omitted). Consequently, I can see no good reason to permit the children to travel to (country omitted).
In the circumstances, I do not see the need to seriously consider the question of any risk from terrorism. However, that risk would be very slight if it was to be considered simply on a statistical basis, given the very large population of (country omitted).
Handover location
The parties also had a minor dispute in relation to the location for handover of the children when the husband spends time with them in Australia. In essence, it was the wife’s primary position that the husband should collect the children from their schools, whereas the father wants the children to be driven to (omitted). A number of other scenarios were discussed during cross-examination of the parties, which included the wife driving the children to (omitted) if the husband is up-to-date with his maintenance payments and the husband flying into Launceston (rather than Hobart) on occasions. Neither party was strongly wedded to the handover being at only one location. It is therefore clear to me that they have been able to be flexible in the past and are likely to continue that flexibility in the future. In those circumstances, I consider it to be appropriate for the handover to be at such a location as may be agreed between the parties from time to time but in default of such agreement, the handover should be at the children’s schools or at the mother’s home.
The designated time for electronic communication
Another minor area of disagreement between the parties was whether the children’s communication with the father by Skype each Sunday should be at 1.00 pm (the husband’s preference) or between 5.00 pm and 7.00 pm (the wife’s preference). It became clear to me that the husband’s preference was based solely upon what he would like, rather than what is convenient for the children. In those circumstances, I find that the wife’s preferred time is more appropriate.
Orders
The Orders that I make are set out at the start of these Reasons. Many of the parenting Orders are by agreement between the parties but I have made some changes to suit my drafting style.
I certify that the preceding one-hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Date: 16 June 2016
[9] It was conceded by his counsel that 2015 was a typographical error which should have been 2014.
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