Pereira & Pereira

Case [2021] FCCA 1435

FEDERAL CIRCUIT COURT OF AUSTRALIA

Pereira & Pereira [2021] FCCA 1435

File number(s): PAC 336 of 2015
Judgment of: JUDGE MORLEY
Date of judgment: 16 July 2021
Catchwords:

 FAMILY LAW – PARENTING – final parenting orders – best interests of the children – where orders are made for the parties minor children to live with their mother – where there is evidence that the father has lacked engagement and shows a disinterest in the children – consideration of children’s views.

FAMILY LAW – PROPERTY – final property orders – two-pool approach – where both parties seek the sale of the former matrimonial – assessment of contributions – where the wife claims that her contributions were made more arduous or onerous by reason of family violence – where the Court finds that this is not a matter that falls within the criteria expressed in Kennon & Kennon (1997) FLC 92-757 – where the parties contributions during the relationship were equal – where the wife made greater contributions post-separation – whether funds expended on legal fees should be added back to the property pool.

Legislation:

 Family Law Act 1975 (Cth), ss 60B; 60CA; 60CC; 61C; 61DA; 65D; 62G; 65D; 65DAA; 65DAB; 65Y; 75; 78; 79; 92; 117.

Federal Circuit Court Rules 2001 (Cth), rr 21.04.
Cases cited:

A & A & The Child Representative (1998) 22 FamLR 756

Benson & Drury [2020] FamCAFC 303

Britt & Britt (2017) 93-764

Colan Products Pty Ltd v Luxon Pty Ltd (No. 2) [2002] FMC 90

Darley & Darley (No. 4) [2021] FamCAFC 54

Deiter & Deiter [2011] FamCAFC 82

Dickons & Dickons (2012) 50 Fam LR 244

Eaby & Speelman [2015] FLC 93-654

Fields & Smith (2015) FLC 93-638

Fontana & Fontana [2018] FamCAFC 63

Goode & Goode (2006) FLC 93-286

Grella & Jamieson [2017] FamCAFC 21

Grier & Malphas (2017) 55 Fam LR 107

Hickey & Hickey & Attorney – General for the Commonwealth of Australia (intervener) (2003) FLC 93-143

In the Marriage of Harris (1991) 104 FLR 458

Jabour & Jabour (2019) FLC 93-898

Johnson & Page (2007) FLC 93-344

Keating v Keating [2019] FamCAFC 46

Kennon v Kennon (1997) FLC 92-757

M & M (1988) FLC 91-973

Marando & Marando (1997) FLC 92-754

Minterly & Minterly [2013] FamCA 418

Napier & Hepburn (2006) FLC 93-303

S & S [2003] FamCA 905

Sadasivam & Seshan (2019) FLC 93-899

Stanford & Stanford (2012) 247 CLR 108

Trevi & Trevi (2018) FLC 93-858
Number of paragraphs: 304
Date of last submission/s: 11 February 2020
Date of hearing: 21 August 2019, 22 August 2019, 10 February 2020, and 11 February 2020
Place: Sydney
Counsel for the Applicant: Mr Shaw
Counsel for the Respondent: Mr Stapleton
Counsel for the Independent Children's Lawyer: Ms Reynolds
Solicitor for the Applicant: Gounder & Associates
Solicitor for the Respondent: D’Agostino Solicitors
Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates

ORDERS

PAC 336 of 2015
BETWEEN:

MS PEREIRA

Applicant
AND:

MR PEREIRA

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF…

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Pereira & Pereira [2021] FCCA 1435
Case
[2021] FCCA 1435
Decision Date

CaseChat Overview and Summary

The case of Pereira & Pereira involved a dispute between Ms. Pereira (the applicant wife) and Mr. Pereira (the respondent husband) concerning property settlement and parenting arrangements for their children. The matter was heard by Morley J in the Federal Circuit Court of Australia.

The court was required to determine how the parties' matrimonial assets, including a property, vehicles, savings, and household contents, should be divided. Additionally, the court needed to make orders regarding the division of the husband's superannuation interests and establish parenting arrangements for the children, X and Y, considering their best interests.

Morley J applied section 79 of the Family Law Act 1975 (Cth) to divide the property. The court allocated specific assets to each party, ordered the sale of their jointly owned property, and stipulated how the proceeds of sale should be distributed. A significant aspect of the property division involved allocating 65% of the net proceeds to the wife and 35% to the husband, taking into account the value of other assets already assigned. The court also addressed the husband's superannuation, allocating a base amount to the wife from his D Super Fund interest. In relation to parenting, the court ordered equal shared parental responsibility and detailed specific time arrangements for the children with their father, considering the wishes of the older child, X, and setting out a schedule for the younger child, Y, until she reaches 14 years of age. The court also made orders concerning travel, communication, and the protection of the children from discussions about the proceedings.

Orders

Orders of the court

PAC 336 of 2015

BETWEEN:

MS PEREIRA

Applicant

AND:

MR PEREIRA

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS THAT:

1. That pursuant to Section 79 of the Family Law Act 1975 (Cth):

(a) That the husband is the sole owner in law and in equity as between himself and the wife of the Motor Vehicle 1 registration … valued at $2500, the moneys withdrawn by him on about 19 December 2013 from the parties’ joint home loan account and retained by him in the sum of $50,000, his savings in the sum of $4133 and his household contents valued at $3000, being a total value of $59,633.

(b) That the wife is the sole owner in law and in equity as between herself and the husband of the Motor Vehicle 2 registration number … valued at $2000, the wife’s jewellery valued at $500, her savings in the sum of $470 and her household contents valued at $5000, being a total value of $7970.

(c) That the parties shall forthwith sign all documents and instruments and do all things necessary to list for sale the property at B Street, Suburb C in the State of New South Wales (“the property”) at a listing price agreed upon between them with a real estate agent agreed upon between them and shall proceed to a sale of the property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:

(i) In adjustment of rates on settlement;

(ii) In payment of agent’s commission (if any) on sale;

(iii) In payment of legal and all other proper costs of sale;

(iv) In payment to the Australia and New Zealand Banking Group Limited of a sum sufficient to discharge the first registered mortgage over the property;

(v) In division of the balance of the proceeds of sale between the parties so that taking into account the values referred to in (a) and (b) in this order the wife shall have received 65% and the husband shall have received 35% of the matrimonial asset pool represented by the property referred to in (a) and (b) and those net proceeds of sale, the husband not to receive his share until there has been compliance by him with order 3 herein.

(d) That in the event that the property does not sell by private sale within four months from the date of this order then the parties shall sign all documents and instruments and do all things necessary to list the property for sale by public auction with an auction agent agreed upon between them at a reserve price agreed upon between them and shall proceed to a sale at a sale price agreed upon between them and the parties shall be equally responsible for all costs and expenses of the auction payable prior to the auction sale and following such sale the proceeds of sale be applied as provided in order 1(c).

(e) That in the event that order 1(d) operates and the property does not sell by public auction in accordance with order 1(d) then the property shall be resubmitted for sale by private treaty in accordance with the provisions of order 1(c) hereof and the property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in order 1(c).

(f) That in the event that the parties are unable to reach agreement in relation to an auction agent, a real estate agent, a listing price, a reserve price or a sale price whether a sale by public auction or by private treaty then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of New South Wales or his nominee or the President for the time being of the Australian Property Institute NSW Branch to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be equally responsible for the costs and expenses of the President or his nominee in making such determination.

(g) That the Court allocate, pursuant to Section 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $13,465.00 to the Wife out of the Husband’s interest in the D Super Fund (member number …).

(h) That, pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of the husband Mr Pereira, in the D Super Fund (member number …), the wife, Ms Pereira will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount of $13,465.00 and that there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.

(i) That order 1(g) and 1(h) bind the Trustee of the D Super Fund (member number …) and take effect from the operative time being the fourth business day after the date of service of a sealed copy of this order on the Trustee.

(j) That the husband is the sole owner in law and in equity as between himself and the wife of all items of real property, personal property, and financial assets currently in his power, possession or control other than as specifically dealt with elsewhere in this order.

(k) That the wife is the sole owner in law and in equity as between herself and the husband of all items of real property, personal property, and financial assets currently in his power, possession or control other than as specifically dealt with elsewhere in this order.

2. That in the event that either party refuses or neglects to comply with any part of this order in relation to the execution of any deed, instrument or document the Court appoints and authorises the Registrars of the Federal Circuit Court of Australia to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.

3. That from the husband’s share of the net proceeds of sale of the property pursuant to order 1(c) the husband shall pay to the intervenor, Ms E trading as E Law, the sum of $7000 in satisfaction of order 1 of the orders made in these proceedings on 16 August 2019 and forthwith upon such payment the equitable charge in favour of the Intervener pursuant to order 2 of those orders is discharged.

4. That order 3 of the orders made in these proceedings on 16 August 2019 reserving the wife’s costs is discharged and in relation to the costs of the wife relating to the intervention of the intervener in these proceedings the wife shall pay her own costs.

5. That the parties have equal shared parental responsibility for the children X born in 2007 and Y born in 2010 (“the children”).

6. That the child X spend time with his father in accordance with X’s wishes and that such time coincide as far as possible with the time that the father spends with the child Y.

7. That until the child Y reaches 14 years of age she shall spend time with her father as follows:

(a) Each alternate weekend from 10 AM on Saturday until 6 PM on Sunday;

(b) On Father’s Day from 12 noon until 6 PM;

(c) On Y’s birthday, the father’s birthday and Easter Sunday for a period of four hours at times as agreed between the parties;

(d) At such other times as may be agreed between the parties from time to time.

8. That upon the child Y reaching 14 years of age, she shall spend time with her father in accordance with her wishes.

9. The mother is to provide the father with the children’s telephone numbers within 7 days.

10. The mother is authorised to apply for and receive passports for the children without the consent of the father.

11. The children’s names are to be removed from the Airport Watchlist.

12. The mother is to retain the children’s passports in her possession.

13. The children may travel outside Australia provided the mother advises the father 6 weeks before such travel and provides the father with a full itinerary including dates of travel, details of plane tickets, and addresses and dates where the children will be staying.

14. For the purposes of changeovers the father is to collect the child or children from the street end of the driveway at the mother’s home at the commencement of his time with the child or children and the mother is to collect the child or children from the street end of the driveway at the father’s home at the completion of his time with the child or children.

15. The parties shall keep each other informed of their current residential address and contact telephone number, and should there be any change in such details, the parties shall provide each other with updated information within 24 hours of such change.

16. For the purposes of these orders, text messages shall suffice as written notice and communication between the parties.

17. The parties are restrained from discussing these proceedings or any part of these proceedings directly with the children or either of them or in the presence of the children or either of them or allowing either of the children to be exposed to any part of the proceedings.

18. The parents are restrained from denigrating the other parent in the presence or hearing of either of the children and shall use their best endeavours to prevent any other person from doing so.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These reasons, in relation to both the financial future of the parties in their property settlement and in relation to their future parenting arrangements for Y and X, have been too long delayed and I apologise to the parties, their legal representatives and the children for that delay. BACKGROUND The wife was born in 1971 and was 48 years of age at the time of the final hearing. The husband was born in 1968 and was 51 years of age at the time of the final hearing. The mother, together with the children, including the adult child Mr F, live in Suburb G and the father lives at Suburb C, both being suburbs in the Greater Sydney Metropolitan Area. An Independent Children’s Lawyer was appointed to represent the interests of the children in the matter by an order made on 31 August 2015. Mr Brian Samuel, solicitor, was appointed to that role by the Legal Aid Commission in New South Wales. On final hearing, the wife was represented by Mr Shaw of counsel, the husband by Mr Stapleton of counsel and the Independent Children’s Lawyer by Ms Reynolds of counsel.THE PROCEEDINGS The proceedings were commenced by initiating application filed by the wife on 10 April 2015 seeking both parenting and property settlement orders. The husband filed his response on 14 May 2015 and the matter had its first return before Henderson J (as her Honour then was) on 18 May 2015. The parties had the advantage of attending a Child Dispute Conference with a Family Consultant. On that day, and as a result, Family Consultant Ms H provided a Memorandum that ultimately became an exhibit during the hearing. Henderson J also allocated the parties a Conciliation Conference to be held on 27 July 2015 and her Honour adjourned the proceedings for further mention to 17 August 2015. The parties entered into interim orders by consent, providing that the children live with their mother and spend time with their father each alternate weekend from 5 pm on Friday until the commencement of school on Monday or on Tuesday in the event of a long weekend. The changeovers occurred by the father collecting the children, at the commencement of his time, from a Church at Suburb G and returning them to their respective schools at the end of his time. Usual orders were made in relation to the parties keeping each other advised in relation of any illness or accident affecting the children whilst in a parent’s care; the mother keeping the father informed of information relating to the children’s education and enabling the father and the mother to attend any functions at the children’s schools to which parents are invited. The parties attended the Conciliation Conference on 27 July 2015, but the matter was not settled. The adjourned date of 17 August 2015 was administratively adjourned to 31 August 2015 and on that date, an order was made for the children’s interests to be represented by an Independent Children’s Lawyer. The order made on 18 May 2015 in relation to the time to be spent by the father with the children was suspended and an order was made that the children spend time with their father from 10 am until 6 pm on two out of each three Sundays, and the matter was set down for an interim hearing on 9 December 2015.

Evidence

Evidence Before The Court

The proceedings relate to both parenting issues for the parties three minor children, Z, X and Y, and a property settlement between the parties pursuant to section 79 of the Act. As the parties’ respective responsibilities for the ongoing care and control of the children is a factor relevant in determining any adjustment between the parties pursuant to section 79(4)(e) and the consideration of the relevant matters in section 75(2) of the Act, the determination of the parenting orders to be made for Z, X, and Y with each child’s best interests as the paramount consideration, should be determined before the consideration of matters under section 79 of the Act, including whether it is just and equitable to proceed with a property settlement (section 79(2)). THE EVIDENCE In these reasons, uncontested evidence is stated as part of the narrative and any contested evidence where a finding is necessary will be examined on the basis of the competing factual assertions of the parties. The husband was born in 1968 in India and was 51 years of age at the date of the hearing. The wife was born in 1971 in India and was 48 years of age at the date of hearing. The parties were married in 2000 in India and migrated permanently to Australia on either 2006 (the husband’s assertion) or 2006 (the wife’s assertion). The parties have four children from their relationship, Mr F, born in 2001, Z, born in 2003, X, born in 2007 and Y, born in 2010. At the time of hearing, Mr F was 18 years of age (now 20 years), Z was 16 years of age (turning 18 in 2021), X was 13 years of age (now 14 years) and Y was nine years of age (now 11 years of age). The parties separated on 19 December 2013 and were divorced on 18 March 2015, the divorce order becoming final on 19 April 2015. Mr F and Z were born in India. X and Y were born in Australia. At the time of marriage, the wife had attained qualifications and was working as a public servant. At the time of marriage, the husband was employed in the Employer M in India as an office worker. The wife had some time off on maternity leave following the births of both Mr F and Z and she resumed work after the birth of each, with the husband’s extended family and maids caring for the children. In 2003 the wife experienced severe back pain and was taken to hospital where she remained until 2003. In addition to her work as a public servant, the wife conducted work at home privately. After migrating to Australia in 2006, the wife undertook a further tertiary course and obtained her qualifications in health care in 2007. In 2007, the wife obtained employment as a health care worker with Employer N and on-call employment for a period of one month, and then took up employment at Suburb O and Employer P. In 2008, the wife obtained employment on a part-time basis with Employer Q as a part-time customer service officer on afternoon shifts and in 2009 she converted to full-time. The wife took maternity leave in 2010 during her pregnancy with Y and was on paid maternity leave until 2010. From 2010 until 2012, when the wife returned to full-time employment with Employer Q, she was not in specific paid employment, but received Centrelink benefits in relation to the children.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In relation to the parties’ superannuation assets, I find that the contributions of the parties are on a slightly different basis over the whole period from the commencement of cohabitation until the hearing. The husband has remained in full-time and paid employment for a greater period of time than the wife given that the wife had two years away from full-time employment due to some ill health after the parties’ separation. Consequently, the husband’s greater contribution to the accumulation of his superannuation, which is just a little less than twice the value of the wife’s superannuation entitlements, balances with the wife’s greater post-superannuation contributions as homemaker and parent for the children. Accordingly, an appropriate assessment of the contributions of the parties in relation to their superannuation entitlements is on an equal basis. SECTION 79(4)(E) – CONSIDERATIONS OF THE RELEVANT MATTERS IN SECTION 75(2) OF THE ACT At final hearing the wife was 48 years of age and the husband 51 years of age. There is nothing in the evidence to indicate that at the time of the hearing either party was suffering from any health problem that effected their capacity to engage in appropriate gainful employment. The wife’s financial statement, relied upon at final hearing, indicated a weekly income from employment, Centrelink payments and Child Support of $1434. The husband’s financial statement, relied upon at final hearing, indicated a weekly income of $1141. The wife has the ongoing care and control of X who will not turn 18 until 2025 and Y who will not turn 18 until 2028. The final hearing ended on 11 February 2020 and Z does not turn 18 until 2021. Under the orders that I will make pursuant to these reasons in relation to parenting, the father will spend less than substantial and significant time with both X and Y. The assessment in relation to X being based upon his expressed views and the proposed order being that the time he spends with his father be in accordance with his wishes. Accordingly, based on this consideration there should be an adjustment in favour of the wife. The commitments of each of the parties that are necessary to enable the parties to support himself and herself and the children of the marriage are set out in each party’s financial statement which were not the subject of cross-examination of either party. The wife asserts weekly expenses, including those for the children, of $2517 a week which would present a shortfall of income in relation to expenses for her of $1083 per week. In reality, there is some blending in relation to expenses as the wife and the children are members of the same household as Mr K and his children. The husband’s expenses are stated in his financial statement as $1091 a week and were not the subject of any cross-examination. Accordingly, the husband has an excess of income over expenses of $50 a week. As the wife’s expenses include the children’s expenses and present as an excess of expenses over income and the husband has an excess of income over expenses, though extremely modest, I find that there should be an adjustment in favour of the wife.