Pereira & Pereira
[2021] FCCA 1435
•16 July 2021
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 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.
IT IS NOTED that publication of this judgment under the pseudonym Pereira & Pereira is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY
INTRODUCTION
These are reasons for judgment in relation to parenting and property proceedings between Ms Pereira, the applicant (“the mother” or “the wife”) and Mr Pereira, the respondent (“the father” or “the husband”). The final hearing took place on 21 and 22 August 2019 and 10 and 11 February 2020. The parties married in 2000, separated on 19 December 2013 and were divorced on 18 March 2015.
These proceedings relate to a property settlement between the parties, pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) and parenting issues concerning the parties’ minor children Z, born in 2003, X, born in 2007 and Y, born in 2010.
The parties have an adult child, Mr F, born in 2001. At the conclusion of the final hearing, Mr F was 18 years of age, Z was 16 years of age, X was 13 years of age and Y was 9 years of age. Shortly after the time of making final parenting orders and the publication of these reasons, Z will turn 18 years of age in 2021.
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.
On 9 December 2015 the parties reached an agreement and orders were made by the Court in accordance with terms of settlement, providing, in summary:
(a)That the parents have equal shared responsibility for the children.
(b)That the children live with their mother.
(c)That the children spend time with their father each alternate weekend from 10 am on Saturday until 5 pm on Sunday and then, from the commencement of term 1 in 2016, each alternate weekend from the conclusion of school on Friday until 5 pm on Sunday and at other times as agreed.
(d)That if Mr F, X or Z were not willing to attend to spend time with their father, that they were not compelled to do so, but that the mother must use her best endeavours to encourage them to attend.
(e)That unless otherwise agreed, all changeovers will occur at the J Library.
(f)A Watchlist order relating to all four children.
(g)An order under section 62G for the preparation of a Family Report.
(h)Usual orders in relation to the exchange of information between the parties.
The matter was further adjourned to 20 October 2016 for a mention following the release of a Family Report.
The Family Report was released by order on 21 September 2016, and on 20 October 2016 the matter was placed in a Call-Over on 25 September 2017 for the allocation of hearing dates. That date was later administratively adjourned until the Call-Over on 6 March 2018.
On 1 May 2018, the matter was before Judge McGuire for a “super call over” and orders were made by his Honour for the children to spend time with the father each Saturday from 10 am until 1 pm, or such other time on each Saturday that may be agreed and for the parties to attend a Legal Aid Mediation. The matter was adjourned for “super call over” mention to 27 June 2018 before Chief Judge Alstergren.
The matter was mentioned before the Chief Judge on 27 June 2018. It was adjourned to 9 August 2018 for further mention but it was then later administratively adjourned to 10 September 2018 to enable the parties to attend a Legal Aid Mediation on 29 August 2018. The matter was again before the Chief Judge on 10 September 2018 at which time it was set down for a final hearing before Henderson J on 11 and 12 March 2019. That listing for final hearing was later vacated consequent upon her Honour’s elevation to the Family Court of Australia and changes to the judicial calendar, and the matter was placed in a Call-Over before me on 3 May 2019.
On 3 May 2019 the matter was called over and set down for a final hearing on 21 and 22 August 2019 and trial directions were made.
On 9 July 2019, E Law, the firm that had previously acted for the husband in the matter, filed an Application in a Case seeking to intervene in the proceedings pursuant to section 92 of the Act and seeking an order that the husband pay that law practice the sum of $20,775 for unpaid legal fees plus interest at 8 per cent and seeking that the husband pay the costs of that application.
That application came before me on 16 August 2019 at which time an order was made adding E Law as an intervener in the proceedings. By consent, confirming that the husband owed the sum of $14,000 to the intervener and noting that he had already paid $7,000, orders were made that the balance of $7,000 owed by the husband to the law practice was to be paid by the husband upon either, the making of orders under section 79 between the husband and the wife; or forthwith upon the sale of the parties Suburb C rural property; or upon a refinance of the loan secured over that property by mortgage, and granting to the principal solicitor of the law practice, Ms E an equitable charge in the sum of $7,000 overall and any moneys due and payable to the husband in consequence of final orders in the proceedings under section 79 of the Act.
On Application by the wife, an order was made reserving the wife’s costs in relation to the intervener’s Application in a Case, including in relation to the appearance of Counsel on behalf of the wife of 16 August 2019. I will deal with that application at the end of these Reasons for judgment.
The matter proceeded to final hearing on 21 and 22 August 2019 and at the end of the second day the matter was part heard. The matter was put over to 10 and 11 February 2020 for further hearing and orders are made by consent between the parties summarised as follows:
(a)Order 1 of 1 May 2018 in relation to the time the father was to spend with X and Y.
(b)The father was to spend time with X and Y each alternative Sunday from 12 pm until 6 pm.
(c)That in the event Y was competing in a sports competition on a Sunday that she would otherwise be spending time with the father then the mother was to give the father notice of the competition no later than 14 days before the due date and the father’s time with X and Y would occur on the Saturday of that weekend from 12 noon until 6 pm.
(d)Changeovers were to occur by the father collecting the children from the street end of the mother’s driveway and the mother collecting the children at the end of the father’s time from the street end of the father’s driveway.
(e)That if the father was unable to spend time with the children he was to notify the mother by 9 am on the due day.
(f)That Mr F and Z were to spend time with the father in compliance with their wishes.
The matter proceeded to a completion of the final hearing on 10 and 11 February 2020 and judgement was reserved.
MATERIALS RELIED ON AT THE HEARING
The wife relied upon the following materials:-
(1)Outline of case document prepared by her Counsel, Mr Shaw;
(2)Amended initiating application filed 17 June 2019;
(3)Notice of risk filed 29 July 2019;
(4)Affidavit of the wife sworn 27 July and filed 29 July 2019;
(5)Affidavit of the wife sworn 4 February 2020 and filed 5 February 2020;
(6)Financial statement of the wife sworn or affirmed 27 July 2019 filed 29 July 2019;
(7)Affidavit of Mr K sworn 27 July 2019 and filed 29 July 2019;
(8)Written submissions as to costs incurred by the wife in relation to the intervention of E Law;
(9)An aide memoire provided for the assistance of the Court by the wife setting out the property settlement outcome contended for by the wife as a balance sheet table.
The husband relied upon the following materials:-
(1)A case outline document prepared by the husband’s Counsel, Mr Stapleton;
(2)Amended response to initiating application filed 9 August 2019;
(3)Notice of risk filed 9 August 2019;
(4)Affidavit of the husband sworn 8 August and filed 9 August 2019;
(5)Affidavit of the husband sworn and filed 7 February 2020;
(6)Financial statement of the husband sworn or affirmed 8 August 2019 and filed 9 August 2019;
(7)The husband’s minute of order submitted at the end of the hearing and marked as exhibit R5;
(8)Husband’s written submissions dated 11 February 2020 prepared by the husband’s Counsel, Mr Stapleton;
(9)An aide memoire provided to the Court on behalf of the husband setting out the property settlement result contended for by the husband of by way of a balance sheet table.
The Independent Children’s Lawyer relied upon the following documents:-
(1)Outline of case document dated and filed 9 August 2019 prepared by Mr Samuel as the Independent Children’s Lawyer;
(2)Minute of the orders proposed by the Independent Children’s Lawyer provided at the ending of the hearing and marked as exhibit ICL3.
The following documents were entered into the evidence as exhibits in the course of the hearing:-
(1)Exhibit ICL1 – Child Dispute Conference Memorandum to Court prepared by family consultant Ms H dated 18 May 2015;
(2)Exhibit ICL2 – Family Report dated 21 September 2016 prepared by Family Consultant, Ms JJ;
(3)Exhibit ICL3 – the Independent Children’s Lawyer’s Minute of Order;
(4)Exhibit A1 – a document entitled “Re: Y. To whom it may concern”, undated, and contained within the material produced to the Court on subpoena by the principal, Suburb G Public School;
(5)Exhibit A2 – letter dated 1 December 2013 from the husband to Mr Pereira;
(6)Exhibit A3 – a letter dated 30 December 2013 from the husband to Mr Pereira;
(7)Exhibit R1 – a hand-drawn floor plan of the wife’s place of residence with Mr K, drawn by the wife during cross-examination;
(8)Exhibit R2 – page 14 of the affidavit of the wife sworn 7 April 2015 and filed 10 April 2015;
(9)Exhibit R3 – a hand-drawn floor plan of the residence of Mr K shared with the wife, drawn by Mr K during cross-examination.
(10)Exhibit R4 – COPS entry in the material produced on subpoena by New South Wales police being a page marked “page 3 of 3” and relating to an incident between the husband and the wife occurring on Thursday 5 July 2012.
(11)Exhibit R5 – the husband’s minute of proposed orders.
THE COMPETING PROPOSALS OF THE PARTIES AND THE ICL IN RELATION TO THE PARENTING ISSUES
At the end of the hearing, counsel for the mother indicated that the mother supported any parenting orders sought by the Independent Children’s Lawyer in the ICLs minute of order marked as exhibit ICL3. Accordingly, the parenting orders sought by the mother and the Independent Children’s Lawyers are as follows:
(1)That all previous parenting orders be discharged.
(2)That the parents have shared parental responsibility for the children.
(3)that the mother notify the father in writing of any decision to be made exercising parental responsibility eight weeks before making such decision, where practical.
(4)That the father is entitled and authorised to receive from the school all newsletters, school reports and all other material normally made available for parents.
(5)That the father may attend all of the children’s school events to which parents are normally invited to attend.
(6)That the parents are to advise each other as soon as practical of any medical emergency involving the children.
(7)That the mother is to provide to the father details of all treating medical professionals treating the children and authorise such professionals to provide the father with information at their discretion.
(8)That the children live with their mother.
(9)That the children, X and Y, spend time with their father as follows:
(a)Each alternate weekend from 12 noon until 6 pm on Sunday commencing the first Sunday after the date of the orders,
(b)After 12 months from the date of orders, the time in order 9(a) to be extended to run from 10 am on Saturday until 6 pm on Sunday on alternate weekends, but to be subject to the child X’s wishes, and otherwise time is to continue as in order 9(a).
(c)From when the child Y reaches 12 years of age, the time in order 9(a) is to be extended to run from 10 am Saturday until 6 pm Sunday on alternate weekends, but to be subject to her wishes and otherwise time is to continue as in order 9(a).
(d)On Father’s Day, from 12 noon until 6 pm.
(e)The father’s time is suspended on Christmas Day and Mother’s Day.
(f)At any other times as agreed in writing between the parties.
(10)The child Z is to spend time with the father in accordance with his wishes.
(11)The mother is to provide the father with the children’s telephone numbers.
(12)The mother is authorised to apply for and receive passports for the children without the consent of the father.
(13)The children’s names are to be removed from the Airport Watch List.
(14)The mother is to retain the children’s passports in her possession.
(15)The children may travel outside Australia provided the mother advises the father six 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.
(16)For the purposes of changeovers, the father is to collect the children from the street end of the driveway at the mother’s home at the commencement of his time with the children and the mother is to collect the children from the street end of the driveway at the father’s home at the completion of his time with the children.
(17)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.
(18)The parties shall keep each other informed of any other person who resides in the household from time to time including details as to the full names of the persons and their relationship with the party.
(19)For the purposes of these orders, text messages shall suffice as written notice and communication between the parties.
(20)Parties are restrained from discussing these proceedings or any part of them directly with the children or in the presence of the children or allowing the children to be exposed to any part of the proceedings.
(21)The parents are restrained from denigrating the other parent in the presence or hearing of the children and shall use their best endeavours to prevent any other person doing so.
(22)The mother is to provide the children’s phone numbers to the father within seven days.
The parenting orders sought by the father are set out in the “Respondent Husband’s Minute of Order” marked as exhibit R5 in the hearing and provide:
(1)That the parents have equal shared parental responsibility for X and Y (hereafter referred to in the father’s orders as “the children”).
(2)That Mr F and Z spend time with the father as they, themselves, determine.
(3)That the children spend time with the father as follows:
(a)From the date of orders, each alternate Saturday or Sunday from 9 am until 6pm.
(b)Commencing 12 months from the date of orders, each alternate weekend from 9 am on Saturday until 6 pm on the Sunday.
(c)Commencing 24 months from the date of orders, each alternate weekend from 3.30 pm on Friday until 6 pm on Sunday.
(4)That order 3 be suspended during school holidays and the children live with the father for the first half of all school holidays in even years commencing 2022, and the second half of all school holidays in odd years commencing 2021, and the children live with the mother for the second half of all school holidays in even years commencing 2022, and for the first half of school holidays in odd years commencing 2021.
(5)That notwithstanding any other orders, the children shall spend time with the father on the following special occasions:
(a)From 12 noon on Good Friday until 12 noon on Easter Monday each alternate year commencing 2022.
(b)From 12 noon on Christmas Eve until 12 noon on Christmas day each alternate year commencing 2021.
(c)From 12 noon on New Year’s Eve until 12 noon on New Year’s Day each alternate year commencing 2022.
(d)From 12 noon on New Year’s Day until 12 noon on 2 January each alternate year commencing 2021.
(6)That the children spend time with the mother on the following special occasions:
(a)From 12 noon on Good Friday until 12 noon on Easter Monday each alternate year commencing 2021.
(b)From 12 noon on Christmas Eve until 12 noon on Christmas day each alternate year commencing 2022.
(c)From 12 noon on New Year’s Eve until 12 noon on New Year’s Day each alternate year commencing 2021.
(d)From 12 noon on New Year’s Day until 12 noon on 2 January each alternate year commencing 2022.
(7)That the parent with whom the children are not living with at the time, spend time with each child on their birthday as follows:
(a)From 9 am until 5 pm on each child’s birthday in the event that each child’s birthday falls on a weekend. That is, the child is otherwise then with the other parent.
(b)From 3.30 pm until 7.30 pm on each child’s birthday in the event that each child’s birthday falls on a weekday.
(8)That the children spend time with the father on Father’s Day each year from 9 am until 6 pm albeit at a time when the children would be living with the mother.
(9)That the children spend time with the mother on Mother’s Day each year from 9 am until 6 pm albeit at a time when the children would be living with the father.
(10)That the children shall communicate with the father each Tuesday and Thursday when the children are living with the mother between 4 pm and 6 pm by telephone and such communication must be initiated by the mother no later than 4 pm when living with the mother or at any other time when the children request to speak to either parent.
(11)That each parent is to notify the other parent when they are unable to care for the children when the children are in their care for any period in excess of eight hours during the day or overnight and that each parent must first afford the other parent the opportunity to care for the children in that circumstance. If neither parent is available to personally care for the children, then each parent is to notify the other parent of the details of any other person caring for the children.
(12)That the mother is to notify the father of the details if and when the children are not in her care or at school.
(13)That each parent must:
(a)Provide the other parent with the names and addresses of the children’s treating doctors and dentists and all necessary consents so as to enable the other parent to obtain information from the treating practitioner concerning the children.
(b)Ensure the other parent is advised of any specialist appointments or medical appointments involving the children so as to enable both parents’ attendance within seven days of such appointment being made when possible.
(c)Notify the other parent of any medical treatment or healthcare received by the children whilst living with the other parent no less than 24 hours after such treatment was provided.
(d)Immediately notify the other parent if the children are seriously ill or to be admitted into hospital at such times as the children are living with their parent and include sufficient details to enable the other parent to be consulted with respect to and receive full advice regarding such illness and condition and any treatment recommended or provided and to visit the child if hospitalised.
(e)That each parent do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the children, including the need for hospitalisation.
(14)That whenever necessary and/or requested by either parent, each shall do all things and sign all documents necessary to cause a new Australia passport or renewed Australia passport to issue and for this purpose:
(a)The father shall complete any relevant application forms and provide them to the mother for completion.
(b)The mother shall return such completed applications to the father within seven days of receiving the application together with one half of the costs of such new passport fee or renewal fee.
(c)The father shall forthwith lodge the application with the relevant authority.
(d)The father shall retain the children’s passports when not in use and must release the passports to the mother within 14 days of receiving notification of order 15 below.
(e)The mother return the children’s passports to the father upon changeover following the children’s return to the Commonwealth of Australia.
(15)That in the event that the children’s passports are lost, destroyed or misplaced by either parent, the parent responsible for such shall meet the costs of replacement.
(16)That neither parent shall unreasonably withhold consent to overseas travel for the children for a period of four weeks each year.
(17)That in the event either parent seeks to take the children overseas, they shall give:
(a)No less than eight weeks notice prior to any planned travel of their intention to travel and an itinerary, and the other parent shall then advise the notifying parent of any reasonable objection to such travel within seven days of such notice being given.
(b)No less than six weeks prior to travel, the travelling parent shall provide with the other parent a photocopy of the children’s return tickets for travel.
(c)That each parent shall cause the children to telephone the other parent no less than twice a week or at any other time when the children request to speak to either parent when the children are on interstate and/or overseas travel.
(18)That the father shall be entitled to attend the children’s extracurricular activities for the purpose of being present at any function or activity that the parents are additionally invited to be present at.
THE PROPERTY SETTLEMENT ORDERS SOUGHT BY THE PARTIES
The property settlement orders sought by the wife are summarised as follows:
(1)That the matrimonial home at B Street, Suburb C NSW be sold and following its sale, the proceeds be applied to costs and expenses of sale including agent’s commission, discharge of the loan account secured by way of mortgage on the property with ANZ Bank Limited, and a division of the net proceeds of sale, 80 percent to the wife and 20 percent to the husband.
(2)That the wife retain her motor vehicle, her savings, her home contents and her jewellery.
(3)That there be a splitting order affecting the husband’s D Super Fund in favour of the wife with the base amount of $35,000.
(4)That the wife retain the whole of her superannuation entitlements and, subject to the splitting order, the husband retain the balance of his superannuation entitlements.
It was submitted for the wife that the orders she proposed for property settlement would affect a one pool division between the parties on the basis of a 70 per cent split to the wife and 30 per cent split to the husband. However, on the basis of the agreed values for the matrimonial assets and each parties’ superannuation entitlements, the wife’s proposals reflected a division between the parties on a one pool approach of 27 per cent to the husband and 73 per cent to the wife or on a two pool approach, being the available assets in one pool and the parties’ superannuation entitlements in the other pool, of 26.7 per cent to the husband and 73.3 per cent to the wife on the available assets, and 28 per cent to the husband and 72 per cent to the wife of the superannuation entitlements.
The property settlement orders sought by the husband began with the following order:
(1)That the overall property adjustment in the proceedings be in the ratio of 50:50 after adjusting the joint liability of the parties secured against the former matrimonial home to reflect:
(a)The $50,000 withdrawn from the joint home loan by the husband in December 2013 as a distribution already received by him; and
(b)The amount of $22,000 being a liability of the wife’s, her having received the exclusive benefit of that money by it being used to purchase the Motor Vehicle 1.
The balance of the orders sought by the husband for property settlement sought, in summary:
(1)That the former matrimonial home at B Street, Suburb C NSW be sold and after payment of all costs of sale and payment of sufficient moneys to fully discharge the loan account secured by way of mortgage over the property, the net proceeds of sale be divided between the parties so as to achieve an equal division of all property between them on a one pool basis (one pool inclusive of available assets and superannuation entitlements) taking into account the value of the assets and superannuation entitlements retained by each of the parties, exclusive of the matrimonial home, pursuant to final orders.
(2)That pursuant to section 78 of the Act, the applicant and respondent shall each be declared the sole and absolute owners at law and in equity of savings, motor vehicles, contents, and jewellery in each parties’ respective possession.
As was pointed out by the Full Court of the Family Court of Australia in Hickey & Hickey & Attorney – General for the Commonwealth of Australia (intervener) (2003) FLC 93-143, especially at [38], section 78 of the Act “…empowers the court to declare existing interests in property according to the general principles of law and equity, and to make consequential orders to give effect to the declaration.” Such power is to make a declaration only with respect to existing title or rights in respect of property but does not enable the court to alter existing rights – that power is contained in section 79 of the Act. As the Full Court made clear, it is preferable that in proceedings under section 79, the court’s orders be made pursuant to section 79 and not contain declarations under section 78.
THE COURT’S APPROACH
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.
In 2011, the wife undertook a course in “English” in the hope of obtaining a job in that regard, but was not successful in obtaining the employment, which led to her return to her full-time Employer Q employment in 2012.
The husband was employed with the Employer M as an office worker whilst the parties continued to reside in India following their marriage. On migrating to Australia, the husband obtained employment at Employer R from 2007 and remained in that employment for three years. From 2008, the husband was mainly on the morning shift at the employer, whilst the wife was on the afternoon shift in her employment with Employer Q.
In 2010, the husband obtained employment with Employer S at Suburb R as a health care worker and he has remained in that employment up until the time of the hearing.
Following the parties’ marriage, they spent five years residing as a family in the husband’s brother’s home in Mumbai, without payment of rent to the husband’s brother. In 2005, they moved into their own rented premises until 2006 when they migrated to Australia.
After coming to Australia, the parties resided in the home of Ms T for a short period of time before obtaining their own rental accommodation in a unit in U Street, Suburb R, moving thereafter to another larger unit in U Street, Suburb R, opposite Employer R, a position of great convenience to the husband for his employment.
It was the wife’s evidence that while the parties lived in India, the children Mr F and Z were cared for by the wife or by the husband’s extended family and by maids, without assistance from the husband. The wife is not contradicted in that evidence by either the husband’s evidence-in-chief or in cross-examination of the wife. However, once the family was residing in Australia and each of the parties was in employment, one parent looked after the children while the other parent was at work, the wife while the husband was on the morning shift, and the husband while the wife was on the afternoon shift. The wife had the sole care of the children for three weeks while the husband was on vacation in India in 2011 and the husband had sole care of the children for 23 days while the wife was on vacation in India in 2013.
In relation to the homemaker role, the wife asserted in paragraph 205 of her affidavit that she “did all the house chores”, however, on the whole of the evidence I find that there was a sharing of the homemaker role between the parties, with the husband undertaking that role once the parties were in Australia whilst the wife was at work, and the wife undertaking that role once the parties were in Australia while the husband was at work. In cross-examination, the wife agreed that when both parties were working shifts they shared the parenting and “care of the home”, and agreed that bringing up the family was a joint enterprise between them.
In 2010, the husband undertook a health care course through TAFE. The wife asserts in evidence that she did his assignments for him.
The husband asserted that at the time of the parties’ marriage he had $12,000 that he had received from the sale of an apartment he owned in India, though he gives no evidence as to when that property was purchased or sold. The wife does not assert that she had any assets at the time of the parties’ marriage. However, when the parties migrated to Australia the husband asserts that he brought $35,000 from India which he deposited into V Bank in 2006. During cross-examination, the wife asserted that the sum brought out from India was $25,000. There is no evidence as to how the sum, whether it is $25,000 or $35,000, was composed or as to whether it contained any of the $12,000 the husband asserted he had at the time of the parties’ marriage from the sale of his apartment in India.
When the husband deposited the sum brought from India into the V Bank, he arranged for the opening of two joint accounts and for Centrelink family tax benefit payments to be made in his name into one of the joint accounts.
The wife asserts that in 2008, Ms T asked to borrow a sum of $20,000 from the parties, which the parties had in their bank accounts, but due to the husband’s opposition to such a loan being made it did not eventuate. In cross-examination, the husband denied that such a request was ever made.
In 2009, the parties purchased the former matrimonial home unit at W Street, Suburb C and they moved into that property from their rental accommodation in U Street, Suburb R. The wife organised the move of the parties’ home contents from Suburb R to Suburb C. The property was purchased in the joint names of the parties at a purchase price of about $220,000. The parties applied their accumulated savings for the purchase and obtained a loan advance in a sum of about $178,000 for the balance. The unit was sold in 2012 for $280,000 and the net proceeds, which the husband asserted in paragraph 24 of his trial affidavit was $275,000, was paid into the loan account secured against the parties’ property. The parties had already purchased the property at B Street, Suburb C to reduce the amount owing.
The parties bought B Street, Suburb C, in 2012 and they went into occupation at the end of March or early April of 2012. The purchase price was $408,000 and the parties initially obtained a loan in the sum of $412,500 from the ANZ Bank to fund the purchase and some renovations, the purchase being cross-secured on the B Street, Suburb C property and the W Street, Suburb C property until the sale of the latter property. The net proceeds of sale of the W Street, Suburb C property were paid in reduction of the ANZ Bank loan account relating to the purchase of the B Street, Suburb C property in about June 2012.
In about 2006, the parties developed a close friendship with Mr K and Ms AA (no relation to the parties), and then tragically, Ms AA died in 2009. Mr K was left with the care of his children, BB and CC, and an arrangement was entered into between Mr K and the husband that the wife would assist Mr K with the care of his two children by caring for them in the parties’ home at all times when Mr K was at work, and they were not attending school. In 2010, Mr K purchased a unit in the same complex as the parties’ W Street, Suburb C property. An arrangement was agreed upon with Mr K in 2010 that Mr K would provide a weekly payment of $275 to the husband and the wife would provide day to day care for Mr K’s children. Once Mr K and his children moved into the unit he had bought in the W Street, Suburb C complex, the wife began providing all care for BB and CC from 2010 until 2011, except for a period from 2011 until 2011, during which time Mr K’s late sister, Ms DD, came to Australia and cared for the children. From about 2011, BB and CC moved in to live full time with the parties in their W Street, Suburb C unit, where they remained living until 2013. In 2012, the arrangement between Mr K and the husband was altered by an increase in the weekly fee for the wife providing care for BB and CC from $275 to $300 per week. The wife conceded that it was not unreasonable for the husband to ask Mr K to pay a contribution of $275, and later $300 per week, towards the weekly costs of the family with whom his children were residing.
It seems that in consequence of the number of people living in the parties’ W Street, Suburb C property, being the husband, the wife, their four children and BB and CC, the parties purchased the larger residence at B Street, Suburb C in 2012, which they began occupying in 2012.
The arrangement came to an end in the early morning of 21 September 2013, when the husband ordered Mr K and his children out of the home. The husband’s version of events in paragraph 33 of his trial affidavit is that at the end of August 2013, a priest from the church, attended by all relevant parties, suggested that Mr K’s children should leave the matrimonial home and Mr K followed that advice.
The wife says that from early March 2012, surely before the parties occupied the B Street, Suburb C home, the relationship between the husband and the wife was “very strained” and that on 3 July 2012, the husband told her that he wanted a divorce.
In either October 2013 (on the husband’s evidence) or on 13 September 2013 (on the wife’s evidence), the wife opened an account in her sole name and directed that her salary from her employment no longer be paid into the parties’ joint account with V Bank, but be paid into her new account. The wife also arranged for Centrelink family tax benefit payments to be paid to her new account. The wife’s evidence during cross-examination was that until her own account was opened on 13 September 2013, 6 days before separation, all of her earnings and the husband’s earnings were paid into the joint account “and the husband handled it”.
In 2011 and 2013, the husband took trips on his own to India. From 2013 to 2013, the wife undertook a trip to India on her own.
On 13 December 2013, the husband withdrew $50,000 from the home loan account secured by way of mortgage on the B Street, Suburb C property and he deposited those moneys into his personal account. This transaction takes on some significance in the matter as it is the subject of an admission by the husband in paragraph 78 of his trial affidavit that in his previous affidavit filed in these proceedings on 14 May 2015 at paragraphs 92 to 95, he “made a statement that was not true”.
In those paragraphs of his previous affidavit, the husband gave sworn evidence that the amount of $50,000 was withdrawn from the ANZ bank home loan account “to pay off outstanding rent due to be paid to my brother from 2000 to 2005”, and that “a further outstanding amount of $62,000 needs to be paid to my brother which is attached as annexure ‘F’”. That annexure “F” referred to being a copy of a letter from Mr EE to the husband dated 1 December 2013, asserting that for the period from 2000 to 2005, when the husband and the wife and, once born, their children Mr F and Z, were residing in Mr EE’s house in India, a sum of $700 Australian per month was payable, forming a debt of $79,100 Australian composed of the principal “plus interest component of $44,100 calculated at 18 per cent up to date”.
The letter also asserted that the husband borrowed a sum of money in 1993 to assist with the purchase of “your City FF house” and made demand for repayment in the sum of $43,000 Australian dollars. The letter ended:
Kindly pay me the sum of AUD 112,100 immediately as I have waited long enough.
Also forming part of the annexure “F” was a purported letter dated 30 December 2013 from Mr EE to the husband with the text:
With reference to my above cited letter, an amount of AUD 50,000 has already been received by me. The balance of AUD 62,000 may kindly be paid at the earliest failing, which necessary action as deemed fit may be initiated against you.
Further copies of those letters were tendered on behalf of the wife and entered into evidence as exhibits A2 (letter of 1 December 2013) and A3 (letter of 30 December 2013).
In the husband’s trial affidavit at paragraph 78, having admitted that he had “made a statement that was not true”, the husband then deposed on oath:
There is no debt owed to my brother for rent for living in his house before we moved to Australia. I made that statement because I was frustrated and hurt that the applicant believed she was entitled to 90 per cent of the pool.
and:
I felt concerned about how that would leave me if she was successful in that application. I now understand that was a mistake, which is why I am correcting that mistake by stating the truth now.
In paragraph 79 of his trial affidavit, the husband deposes:
I confirm I still have control of those funds.
Referring to the $50,000 withdrawn from the ANZ loan account.
In cross-examination, the husband was shown exhibits A2 and A3 and confirmed that they were letters from his brother Mr EE and signed by his brother Mr EE. When asked by Mr Shaw for the wife what he had done with the money, the husband responded, “I sent it to my parents in India.” A short time later, in cross-examination, when it was put to the husband by Mr Shaw that he had never sent any money to his brother Mr EE, the husband responded, “I sent $45,000 and $5000. I paid him when I went over there. $45,000 I transferred to overseas.” When he was asked by Mr Shaw if his brother Mr EE still had the money, the husband replied, “He has still got it.”
I then sought to clarify the husband’s evidence with him and put a serious of questions in relation to what he had done with the sum of $50,000. He responded in evidence that he gave $5000 from that sum to his brother in September 2016, that that was the only money he paid to his brother and that his brother is still holding the $5000 for him. He also confirmed that he had transferred $45,000 to his parents in India and that they were still holding that money for him.
I asked the father why Mr EE had written the two letters, being exhibits A2 and A3, and he responded that they were written by Mr EE at the husband’s request. I then asked the husband, “When the letters were written, was any money owed by you to Mr EE?” The husband responded in words to the effect that no money was so owed.
Further, in cross-examination of the husband, Mr Shaw confirmed that Mr EE still held $5000 for the husband and the husband confirmed that he did. When asked by Mr Shaw if the husband could arrange with his brother to return the money to him, the husband responded, “It can be used against my asset pool.”
Mr Shaw put to the husband that he had, “tried to deceive the wife in relation to the amount being claimed by Mr EE” and the husband responded, “Yes, I did.” Mr Shaw put to the husband, “you told an untruth in the affidavit that annexed those letters” and the husband responded, “I did.” The husband confirmed in cross-examination that he took the sum of $50,000 without the wife’s consent at about the time of separation and that requests had been made during the currency of the proceedings that he return the money to the loan account and that he had not done so. In answers to further questions put by me, the husband asserted that he did not know what his parents had done with the $45,000 he had sent to them and he did not know what his brother had done with the $5000 he gave to him. When asked by Mr Shaw if he could ask for the return of the money, the husband replied, “I can.”
The husband conceded in paragraph 77 of his trial affidavit, and again in response to a question from Mr Shaw in cross-examination, that there was no agreement with his brother to pay his brother rent for occupying his home in India from 2000 to 2005.
Importantly, in relation to the husband’s credit, it was put to him in cross-examination by Mr Shaw that he knew that his affidavit of 14 May 2015, once filed with the Court, was designed to mislead the Court as to the state of his finances and the husband replied, “Yes.” When it was put to the husband that it was a “serious matter”, he responded, “Yes, so I rectified the matter.” The husband was then asked by Mr Shaw if he had “given evidence in your affidavit and in cross-examination that is untrue in the same way that your affidavit was untrue?” The husband replied, “It was untrue, but I do not agree anything else is untrue, only that one instance.”
It was put to the husband that he had “tried to short-change your wife by claiming the $50,000 was a debt”. The husband responded, “Yes, I agree.” It was then put by Mr Shaw that the husband had “asked your parents to keep the money safe so that it would disappear and not be part of the pool for distribution”. The husband responded, “Yes.”
The husband was then referred by Mr Shaw to both his amended response to initiating application and his financial statement, sworn or affirmed 8 August 2019, both filed 9 August 2019. He confirmed that there was no mention of the $50,000 in the property settlement orders sought by him in the amended response and there was no mention of the $50,000 in his said financial statement, despite that financial statement having been sworn or affirmed on the same day as his trial affidavit, being 8 August 2019.
On 19 December 2013, the parties separated when the wife and the children left the former matrimonial home and they resided in a friend’s home until 3 January 2014. On 4 January 2014, the wife and the children commenced residing in a home leased by the wife. In July 2014, Mr K’s children, BB and CC, moved in to stay with the wife and her children and then on 26 January 2015, the wife left her rented property and leased two bedrooms in the home of Mr K that he had purchased in January of 2015 at Suburb G. The wife pays rent for the rooms and contributes towards the cost of food for the household and the electricity and water consumption charges.
The wife gave evidence in cross-examination that in the home, Mr K’s daughter BB has her own room, his son CC shares a room with the child Z, and that Mr F has “his own space” in a family room converted to a bedroom, that X and Y share a room and that Mr K and the wife each have their own separate bedroom. In response to a question from Mr Stapleton for the husband during cross-examination, the wife drew a floorplan of Mr Pereira’s home indicating the rooms occupied by the adults and the children. That hand drawn floorplan is exhibit R1. Similarly, during the cross-examination of Mr K by Mr Stapleton for the husband, he also hand drew a floorplan of his home indicating the rooms occupied by the children and the adults and that document is exhibit R3.
During the wife’s cross-examination, she was asked by Mr Stapleton if she was in a sexual relationship with Mr K and she responded, “No”, and when asked if she had ever been in a sexual relationship with Mr Pereira she again replied, “No”. Similarly, during his cross-examination, Mr K denied that he and the wife were in a sexual relationship or had ever been in a sexual relationship. He gave evidence that a couple of years ago he had asked the wife to marry him, that she had said no as she needed time and he confirmed that the wife was welcome to live in his home as long as she wants and that in 2015 the wife had signed a tenancy agreement, my recollection being, that he would require her to give him four weeks notice if she intends to move out.
After separation, the wife took two years leave without pay from her employment with Employer Q due to ill health and she returned to work on a full time basis in 2018.
Mr F is an adult, having completed his high school education with year 12 in 2019. Mr F is studying health care at University.
Z reached 18 years of age on 27 June 2021. Z has now completed his high school education, having undertaken his Higher School Certificate in 2020.
X was 13 years of age at the time the hearing ended, now 14 years of age, and is in year 9 at GG School.
Y was nine years of age at the time the hearing completed, now 11 years of age and in year 6 at Suburb G Public School.
Between the parties’ separation on 19 December 2013 and October 2014, the father spent no meaningful time with either X or Y. The father asserts at paragraph 43 of his affidavit that the mother refused to let him have time with the children, the mother not addressing that hiatus in her evidence. Between October 2014 and the first set of interim orders in these proceedings made in May 2015, the husband spent time with the children on about each alternate Saturday and then following the making of the interim orders on 18 May 2015 X and Y began spending time with the father, in accordance with those interim orders, each alternate weekend from 5 pm on Friday until the start of school on Monday. On 9 December 2015, the interim orders were changed by consent to provide that Y and X spend time with the father each alternate weekend from 10 am on Saturday until 5 pm on Sunday until the start of term 1 in 2016 and, thereafter, each alternate weekend from the end of school on Friday until 5 pm on Sunday.
Mr F, who at the relevant time was still under 18 years of age, stopped spending any time with the father from 5 August 2016. Z stopped spending any time with the father from 1 April 2016, when he was 12 years and eight months of age. On 14 April 2017, X stopped spending any time with his father and then resumed spending time from 1 May 2018 when further interim orders were made by McGuire J, that being on each Saturday from 10 am until 1 pm, and then he stopped spending time with his father in October 2018.
Y spent time with her father up until 22 December 2017, when her time with her father ceased, then resumed in May 2018 when the interim orders were made by McGuire J, and she ceased spending time with her father altogether in October 2018.
As a result of the interim orders made following the second day of the final hearing on 22 August 2019, with the matter part-heard and going over to February 2020, further interim orders were made by consent providing, amongst other things, for the father to spend time with X and Y each alternate weekend from 12 noon until 6 pm on Sundays or, if the mother gave the father 14 days notice beforehand that Y was engaged in sports on the relevant Sunday, the time was to take place between 12 noon and 6 pm on the Saturday of that weekend. Following the making of those orders, Mr F was still under the age of 18 for a bit over two months and he saw his father on three occasions between 22 August 2019 and the resumption of the hearing on 10 February 2020. Z also spent three occasions with his father between August 2019 and February 2020, while X and Y spent every second weekend on either Saturday or Sunday for the six hours as provided in that interim order.
Following separation, the husband remained residing in the former matrimonial home and the wife asserts that, on occasions, the husband rented out rooms in the former matrimonial home and retained the whole of the rental proceeds for himself. During cross-examination, the husband asserted that he did not receive rent from persons who occupied rooms in the home but that he allowed persons to stay there as he received requests for help and he provided the assistance requested.
At separation, the wife took with her and retained a motor vehicle 3 that had been purchased on about 19 September 2020, utilising $35,000 that had been withdrawn from the ANZ home loan account secured on the matrimonial home. That withdraw increased the amount owing by the parties to the ANZ bank on that home loan account from $117,811.75 to $152,811.75. Following the purchase of the motor vehicle 3 it was registered in Mr K’s name. Over the following few months, Mr K paid a sum of $12,500 to the husband and the husband paid those sums back into the home loan account. The sums were paid by Mr K to the husband by $500 on 10 October 2012, $5000 on 12 October 2012, $5000 on 15 October 2012, $1000 on 22 October 2012, and $1000 on 5 November 2012.
Accordingly, the parties’ contribution to the purchase of the motor vehicle 3 was $22,500 or about 65 per cent and the contribution of Mr K to the purchase was $12,500 or about 35 per cent. Mr K, on the other hand, asserts that in addition to the $12,500 paid by him to the husband, and confirmed in the husband’s evidence, he paid the husband an additional sum of $1500 in cash, bringing his total payment to $14,000 or 40 per cent of the purchase price, the parties paying 60 per cent of the purchase price. Neither the husband nor Mr K were cross-examined about this evidence.
On the basis of the husband’s deliberate false evidence in his affidavit of 14 May 2015 about the alleged debt owed to his brother Mr EE, I find that I prefer the evidence of Mr K in relation to the payments made by him to the husband for the motor vehicle 3. Accordingly, I find that that portion of the value of the motor vehicle 3that forms part of the matrimonial asset pool is 60 per cent. However, the difficulty that then arises is that I have no evidence in relation to the value of the motor vehicle 3. I have agreed values in relation to the motor vehicle 2 retained by the husband at separation and the motor vehicle 2 retained by the wife, but there is no evidence whatsoever in relation to the Motor Vehicle 3 co-owned between Mr K, the husband and the wife. The $21,000 contributed towards its purchase price in September 2012, seven and a half years before the conclusion of the final hearing, remains part of the debt represented by the ANZ bank home loan account secured on the former matrimonial home in the joint names of the parties.
From March 2017, the husband paid interest only payments in relation to the ANZ loan account secured by mortgage on the matrimonial home, having made that arrangement with the bank without consultation with the wife. The husband has had the sole benefit of the occupation of the matrimonial home since separation on 19 December 2013 as between himself and the wife.
For her part, from 3 January 2014 until February 2020, the wife has paid a sum of $83,200 by way of rental payments for her accommodation.
On 13 December 2013 the amount owing on the ANZ home loan account was $88,996.75. The husband then withdrew the sum of $50,000 so that an amount of $138,996.75 was owing. As at 10 January 2020, the amount owing on the home loan account was $129,566.92. Accordingly, over the period from 13 December 2013 to 10 January 2020 the amount owing on the loan account was reduced by $9429.83 or an average of $1570 per year.
The wife gives evidence of occasions of family violence perpetrated by the husband against her, and she seeks to have that family violence considered by the Court as having rendered her contributions during the period of the co-habitation more arduous or onerous than they would have been without her having been victim of the asserted family violence. In this regard, the wife is making out what has come to be known as a Kennon claim in relation to contributions, explored more fully in concept under a heading, “The Law – Property Settlement” below.
In support of her Kennon claim, the wife refers to the following occasions:
(a)During the parties’ honeymoon, following their marriage in India, the husband slapped the wife’s cheek and said to her, “You will obey me whatever I say or you will be treated like that,” on an occasion where she defied him. The wife was not shaken in relation to this evidence in cross-examination. During his cross-examination, the husband denied that the incident occurred.
(b)On 27 October 2017, the husband “pushed me onto the [park] bench and assaulted me”. During cross-examination by counsel for the Independent Children’s Lawyer, the wife asserted that the husband had “pushed me three or four metres onto a concrete bench”. The wife’s evidence was denied by the husband during cross-examination.
(c)The wife gave evidence that throughout the whole of their relationship the husband controlled all of the parties’ finances, including the wife’s earnings in their joint accounts. The husband denied this assertion in cross-examination.
(d)Throughout the relationship, the husband demanded that the wife account to him for her daily movements. The wife complied for a time and part way through the relationship ceased complying. The husband denied this assertion in his cross-examination.
(e)At some time between October and December 2000, the husband subjected the wife to forceful sex, causing enough pain to cause her to pass out. The wife was not shaken on this evidence in cross-examination. The husband denied the evidence in his cross-examination.
(f)Throughout the time the parties resided in India prior to migrating to Australia, the wife had no access to any money except 10 rupee per day for travel expenses for work and the husband purchased all of her clothes and accessories. There was no cross-examination of either party on this assertion.
(g)In March or April 2017, during an argument between the parties during which the husband demanded that the wife work both full-time and do all the caring for the children, “he then assaulted me.” In cross-examination by Ms Reynolds for the ICL, the wife expanded on this evidence when asked what she meant by “he assaulted me” and she gave evidence that on the occasion referred to, she was holding X, who had just been born, and the husband pushed both the wife and X, causing the wife to fall back onto a sofa, the baby X in her arms. She said that the husband pushed her with his hand on her left forearm while she was holding the baby. During the husband’s cross-examination, he gave evidence that “I never assaulted her.”
(h)At about the end of April 2008, the husband hit the wife on the back with a plate. There was no cross-examination of either party in relation to this incident.
(i)In June 2011, the wife asserts the husband said to her, “You are not to go out without my permission. You have to stay home” causing the wife to feel “controlled and worthless”. There was no evidence from the wife as to her compliance, if she complied, or the duration of her compliance. There was no cross-examination of either party in relation to this assertion.
(j)On 10 December 2011, the husband assaulted the wife whilst they were in bed together in that “he thrust his big toe into my vagina” causing the wife pain and, she asserts, causing her within 24 hours to contract a serious Urinary Tract Infection. In cross-examination of the husband by Mr Shaw, the husband denied that the incident had ever occurred. In response to cross-examination by Mr Shaw for the wife, the husband said, “It’s a total lie, a made-up story.” The wife was cross-examined by Mr Stapleton for the husband about the incident and she asserted that the husband had taken this action deliberately to hurt her after trying on “three or four occasions” during the night to have relations with her. In the cross-examination, Mr Stapleton referred the wife to her affidavit of 7 April 2015 that contained no evidence of the incident the wife asserts occurred on 10 December 2011, that evidence first appearing in paragraph 102 of her trial affidavit of 27 July 2019. Mr Stapleton put to the wife that the incident did not appear in her earlier affidavit of 7 April 2015 because it was not true and was made up subsequent to the earlier affidavit, to which the wife responded, “It was not in that affidavit because I didn’t remember it”. The wife was asked by Mr Stapleton if she had remembered the evidence “later” and the wife replied, “Yes. In October 2017”. In cross-examination by Mr Stapleton, the wife confirmed that she did not reveal anything about the alleged incident of 10 December 2011 to Mr K, the police or her doctor. Mr Stapleton again put it to the wife that she had made up the evidence, which the wife denied. Then in cross-examination of the wife by Ms Reynolds for the ICL, the wife was asked why she recalled that incident in October 2017 and the wife explained that she was doing a course in October 2017 for the church about trauma and blanking memory. She screamed out “stop the class” and remembered the incident.
(k)The wife asserts that the husband demanded receipts for all of her expenditure throughout the parties’ cohabitation. This was not put to either party in cross-examination.
(l)The wife asserted that the husband would check the odometer of her car to see how far she had travelled and question any deviation from her usual mileage. This was not put to either party in cross-examination.
(m)The wife asserted that on 24 August 2014, the husband “slapped me on my arm several time very hard”. This was not put to either party in cross-examination.
(n)The wife asserted in her trial affidavit that the husband took all of her cash payments received for work while the parties lived in India. This was denied by the husband in his cross-examination and he asserted that all such payments were deposited into the parties’ joint account. Following on from that assertion by the husband, it would follow that such earnings by the wife formed part of the parties’ savings at the time they migrated to Australia.
(o)In the trial dispute conference memorandum to court (Exhibit ICL1), the wife asserted that the husband “physically abused her (routinely slapped her across the face) and financially abused her during the marriage, however, she did not report it to the police because the father allegedly threatened to take the children away from her.” When being cross-examined about this assertion by Ms Reynolds for the ICL, the mother said, “He used to do that, slap my face”. When asked by Ms Reynolds “how often”, the mother replied, “Many. Slapping on the face was very common, pushing and shoving me in a corner was very common.”
From the evidence contained in the parties’ financial statements, I find that the wife continued, at the time of hearing, her employment with Employer Q as a customer service officer, having been in that employment for 11 years and six months. She receives a salary of $677 a week gross and Centrelink payments of $493 a week, giving her a total income of $1434 per week. At the time of swearing or affirming her financial statement for the hearing on 24 July 2019, the wife was also receiving $264 per week by way of Child Support paid by the husband for Mr F, Z, X and Y. With Mr F having obtained 18 years of age in 2019, that sum would have reduced and with Z obtaining 18 years of age in 2021, the amount changed for child support will further reduce. I find that the wife’s weekly expenses, including for the children, are around the sum of $2517 per week (the wife having completed part N of the financial statement form). The only debt asserted by the wife to be owed by her other than the ANZ loan account secure on the matrimonial home is the debt of $30,000 owed to Mr K, borrowed from him by the wife for payment of legal fees.
I find that the husband is a health care worker in the employment of Employer R, that he has a gross salary of $1041 per week as his only source of income, and that he has weekly expenses of $1091 (the husband did not complete part N in his financial statement, but included a figure at item 32 “total of all other expenditure” in part G of his financial statement). Accordingly, the husband has an excess of expenditure over income on a weekly basis of $49. The husband does not assert any liability other than the ANZ loan account secured on the former matrimonial home.
Subsequent to their marriage, both parties engaged in appropriate gainful employment, the husband continuing as an office worker for the Employer M in India and the wife as a public servant which included private work at home. The parties pooled their earnings and on migrating to Australia in 2006 had savings, inclusive or otherwise of the husband’s initial contribution of $12,000, of between $25,000 and $35,000.
After migrating to Australia, the wife engaged in fulltime employment except for periods of time following the birth of the children, X and Y, in Australia and the husband engaged in fulltime employment some eight months after coming to Australia. Both parties contributed their earnings from their employment towards the acquisition, conservation and improvement of property and toward the living expenses of the family unit.
There is contested evidence between the parties as to who was responsible for the parenting role and the homemaker role whilst they resided in India, from the time of their marriage in 2000 until coming to Australia in 2006. Certainly, once each party was in employment by the middle of 2007, they necessarily shared the parenting role and shared the homemaker role, a circumstance claimed by the husband in his evidence in chief and conceded by the wife in her cross-examination, a necessary circumstance given that when one party was working a morning shift and the other worked an afternoon shift, the party not on shift attended to the homemaker role and caring for the children.
The wife asserts in her evidence that she was mainly responsible for caring for Mr K’s children, BB and CC, whilst they lived with the parties, but once again that care would have necessarily been shared between the parties in consequence of their arrangement in working non-coinciding shifts.
Following the parties’ separation on 19 December 2013, the wife’s contribution in relation to the parenting of the children of the marriage, all of them being minors at the time of that separation, was significant in that no counterbalancing contribution in the nature of parenting for the children and the performance of the homemaker role was performed by the husband.
Post separation, the husband had sole occupation of the matrimonial home. In the period from 19 December 2013 up until the hearing, the husband paid all of the interest payments required on the loan account in the joint names of the parties secured on the matrimonial home property at B Street, Suburb C, reducing the principle thereon over the period from 19 December 2013 through to 10 January 2020, being a period of six years and one month, by $9429.83, or about $1572 per year. During most of that time, from January 2015, the wife and the children were sharing accommodation with Mr K and his children in his home and paying rent under a residential tenancy agreement.
The wife presented evidence of family violence perpetrated by the husband against her, as summarised at paragraphs 94 and 95 above.
The wife relied upon the well-known principle of Kennon v Kennon (1997) FLC 92-757 (“Kennon”) in asserting that the family violence perpetrated by the husband against her met the necessary criteria for a Kennon claim, namely that there was “a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage … or … to have made his or her contributions significantly more arduous than they ought to have been”.[53]
[53] Kennon v Kennon (1997) FLC 92-757, [84]-[294] (Fogarty and Lindenmeyer JJ).
In Minterly & Minterly [2013] FamCA 418 Watts J conveniently summarises the applicable principles relating to what has become known as Kennon claims, at [68]–[73]:
[68] The Full Court in Kennon & Kennon (1997) FLC 92-757 said the following:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, to put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
[69] In S & S [2003] FamCA 905 the Full Court referred to the above passage in Kennon and emphasised the words “which is demonstrated“ saying:
The question is whether a trial judge may infer from the evidence that the result must be that a party’s contributions have been affected.
[70] The Full Court in Kennon went on to say that considerations of this nature only apply in a relatively narrow band of cases and that it was not directed at conduct which does not have that effect and, of necessity, it usually did not encompass conduct proximate to the breakdown of the marriage basically because there would be insufficient time for any impact to be relevant to contributions.
[71] In S & S, the Full Court approved a statement by the trial judge, when the trial judge had commented on the difficulty in that case which arose from the wife’s material, because although it gave evidence about specific acts of violence, it did not expressly refer to the impact of the violence on her contributions. The trial judge went on to say: It cannot, however, be the law that the failure to state such matters expressly is necessarily fatal to such evidence; there must be cases where it is obvious or a very likely inference from the facts, that certain kinds of violence must have adversely affected a person’s contributions.
[72] The Full Court in S & S also commented upon the reference to “exceptional cases“ and “the relatively narrow band of cases“. The Full Court in S & S adopted the trial judge’s comments that: … the references to “exceptional cases“ and “narrow band of cases“ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. My reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are “significant adverse impact” and “discernible impact“. That reading of the passage is, I think, given some additional force by the actual decision in the Doherty case and the judgments of Baker J in both Doherty and Kennon.
[73] The Full Court in S & S at [47] said:
An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
•The incidence of domestic violence;
•The effect of domestic violence; and
•Evidence to enable the court to quantify the effect of that violence upon the parties [sic] capacity to “contribute“ as defined by section 79(4).
I note that the matter of S & S referred to by His Honour is also known as Spagnardi & Spagnardi.[54]
[54] Same reference, apparently not reported.
In relation to the third dot point in S & S the position in relation to the required evidence must now be interpreted in the light of subsequent Full Court authorities. In Keating v Keating [2019] FamCAFC 46, Ainsley-Wallace and Ryan JJ in their joint judgment said:
39. … We struggle to understand what that “quantification” evidence might be beyond that given by the victim spouse as to the incidence and effect of the violence as identified in [S v S] in the first two dot points at [47]. Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in [S v S] said governed the situation. Perhaps the use of the word “quantification” is infelicitous and has unintentionally added a gloss to the ratio in Kennon, when in truth, the court in [S v S] was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse’s contributions, how difficult it might be for the court to draw inferences which would establish the evidentiary nexus (see [S v S] at [42])…
Of recent time the Full Court in Benson & Drury [2020] FamCAFC 303 said at [49]:
[49] Even though S v S might, in the past, have been interpreted as implying the need for something more, it should now be clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties (Maine v Maine (2016) 56 Fam LR 500; Britt v Britt (2017) 56 Fam LR 526; (2017) FLC 93-764; [2017] at [74]–[75]; Keating at [27]–[43], [52]–[67]).
And further at [50] in relation to the nexus being inferred:
[50] Here, the primary judge found the appellant perpetrated family violence upon the respondent and drew an inference that such violence did have an effect upon the respondent’s contributions, making them “all the more arduous” (at [162]). An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H (1994) 181 CLR 387 at 390; 124 ALR 353 at 355; 18 Fam LR 180 at 182). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [80]–[101] per Spigelman CJ; Carr v Baker (1936) 36 SR (NSW) 301 at 306–7 per Jordan CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]–[66]).
The court’s consideration of a party’s argument that the principles referred to in Kennon apply and have an effect on the assessment of the parties’ contributions must be considered together with the court’s consideration of all of the contribution evidence in a holistic manner, as explained by the Full Court in Benson & Drury (supra) at [35] to [37]:
[35] The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under s 79(4)(a)–(c) or s 90SM(4)(a)–(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder (Jabour v Jabour (2019) 59 Fam LR 475; (2019) FLC 93-898; [2019] FamCAFC 78 at [73]–[87] (Jabour); Horrigan and Horrigan [2020] FamCAFC 25 at [42]–[48]).
[36] That principle has its counterpart in the application of factors prescribed by s 75(2) or s 90SF(3) of the Act (In the Marriage of J D and S J Tomasetti (2000) 26 Fam LR 114; (2000) FLC 93-023; [2000] FamCA 314 at [107]–[114]). Any adjustment to the parties’ contribution-based entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustments in respect of each relevant factor.
[37] Although the use of the short-hand descriptor of a “Kennon claim” is not of itself erroneous, it is liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process (Paysen v Laukien (2020) 60 Fam LR 464; (2020) FLC 93-960; [2020] FamCAFC 101 at [48]–[50]). Nor is it helpful to refer to the issue as a “Kennon adjustment” because that epithet invites treatment of the issue as an isolated claim for an additional share of the available property.
I find that taken even at its highest, in that I have found that I accept the evidence of the wife over that of the husband, the family violence perpetrated by the husband against and affecting the wife does not amount to evidence that satisfies me that such family violence had a significant adverse impact upon the wife’s contributions to the marriage or was such to have made her contributions significantly more arduous than they ought to have been. Though the wife gave evidence that some of the coercive and controlling conduct by the husband was throughout the relationship, on the evidence, the wife also had a degree of independence both financially and as to movement outside of the matrimonial home that is inconsistent with the husband’s conduct in that regard having been effectively controlling of the wife for any substantial period of time so as to bring the matter within the criteria expressed in Kennon, being a persistent or continuous course of conduct over the whole or even a significant part of the parties’ co-habitation. Nor does the evidence indicate that the events of physical violence had the effect on the wife’s contributions of having a significant adverse impact on her contributions or of making them significantly more arduous.
On the evidence agreed by both parties, I find that for much of the parties’ co-habitation the wife was free from the husband’s control day to day as when she was at work he was at home and when he was at work, she was at home. Though the wife asserts financial control by the husband, each of the parties’ income from employment was paid into a joint account, not an account in the husband’s sole name.
Accordingly, although I find that the parties’ contributions up until separation were equal, the contributions of the wife post separation, particularly in relation to her contribution as parent and as homemaker for the children, were in excess of the contributions of the husband.
Accordingly, I find that the parties’ contributions based on a holistic consideration of the whole of the period from the commencement of the parties’ cohabitation up until the hearing favour the wife on the basis of 55 per cent by the wife and 45 per cent by the husband in relation to the available assets not including superannuation.
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.
The wife is eligible for and receives an allowance under the law of the Commonwealth being family tax benefit types A and B. The husband does not receive any pension allowance or benefit under the law of the Commonwealth or of a state or territory or of another country or under any superannuation scheme. I find that there is no basis under this consideration for an adjustment between the parties.
The standard of living of each of the parties is different to that enjoyed by the parties during the currency of their cohabitation. On the husband’s part, that will further change in consequence of the making of property settlement orders on whatever basis is finally determined to be appropriate which will, on the application of both parties, involve a sale of the Suburb C property and a relocation by the husband. I find there is no basis under this consideration for an adjustment between the parties.
Each of the parties contributed to the income, earning capacity, property and financial resources of the other party. There is no basis for an adjustment between the parties under this consideration.
I find that despite the periods of time when the wife was out of paid employment due to the birth of the parties’ children, the duration of the marriage has not affected the earning capacity of either party. The wife has continued in the paid employment that she commenced in 2008 and the husband has continued in the employment that he took up in 2010.
I find that the property settlement orders as proposed by either party would have no detrimental effect upon the wife’s role as parent to the minor children, X and Y, and accordingly any need to protect the wife’s role as a parent does not justify any adjustment between the parties.
The husband is cohabiting with his partner, Ms HH, and there is no evidence in relation to her financial circumstances. The husband’s second marriage to a person, who it appears now resides in India on a fulltime basis, was not successful.
The wife does not, on the whole of the evidence, cohabitate with Mr K, having given evidence during her cross-examination that she had received a proposal of marriage from Mr K but had rejected him for the time being. However, in all likelihood, on the evidence, there will be a continuing relationship between the wife and Mr K, possibly marriage. On any reading of the evidence there is a financial blending in the household between the wife and the children of the marriage in these proceedings and Mr K and his children. Based on the uncertain state of the evidence in relation to both households, I find that there is no basis for an adjustment between the parties under this consideration.
The husband pays Child Support as assessed and has done so since shortly after the parties separated. The wife expressed no complaints in relation to the Child Support provided for by the husband. I find that there is no basis for an adjustment between the parties under this consideration.
Accordingly, I find that there is a basis for an adjustment to be made in favour of the wife and, in particular, in relation to her ongoing parenting, care and control of the minor children of the marriage and the greater part of the burden of their financial support. I find that such an adjustment should equate to 7.5 per cent in relation to the available, non-superannuation entitlement, net matrimonial asset pool.
In relation to the parties’ superannuation entitlements, I find that there should not be an adjustment on the basis of the consideration of matters under section 75(2) of the Act. By the time that the parties come to be entitled to receive their superannuation to themselves, the adjustment factors relating to the wife’s ongoing care and control and financial support of the children in the marriage will no longer be relevant, and, accordingly, I find that there is no basis for an adjustment between the parties in relation to their superannuation entitlements.
It is inherent in the findings that I have made in relation to the assessment of the parties’ contributions and in relation to any adjustment between the parties for future needs matters that I take a two-pool approach. A global approach to the available non-superannuation assets in one pool and a global approach to the parties’ superannuation entitlements in the other pool.
Accordingly, I find that the appropriate division of the net matrimonial assets not including superannuation entitlements is 65 per cent to the wife and 35 per cent to the husband. I find that the appropriate adjustment of the parties’ superannuation entitlements is to divide same on an equal basis between the parties by way of a splitting order providing for a base amount in the favour of the wife that provides an equal amount of the superannuation entitlements to each of the parties.
What orders are just and equitable to be made between the parties?
The heading I provide for this section is based on the traditional expression used in property settlements under the Act, the four-step approach as outlined by the Full Court of the Family Court of Australia in Hickey & Attorney-General and the Commonwealth of Australia (2003) FLC 93-145, rather than the legislation. The relevant power under section 79 is to make such order as the Court considers appropriate altering the interests of the parties to the marriage in the property after first making a determination that it is just and equitable to make an order under section 79 and thereafter addressing the matters set out in section 79(4) in relation to contributions, the effect of any proposed orders on the earning capacity of either party, any adjustment appropriate after consideration of the matters set out in subsection (75)(2) of the Act and then making the orders for adjustment of property that the Court considers appropriate, and in relation to my approach to those legislative requirements I follow the well-known “four-step process”. In keeping with the fundamental meaning of section 79 of the Act, appropriate orders would be orders that are just and equitable between the parties.
Both parties seek orders that involve a sale of the B Street, Suburb C property and I will proceed upon that basis.
In relation to the finding I have made of the matrimonial assets not including superannuation, I find that not including any proceeds of the sale of the B Street, Suburb C property the husband will be retaining property to the value of $59,633, and the wife will be retaining property to the value of $7970.
Accordingly, I will make orders providing for the husband to retain the property he has to the value of $59,633, for the wife to retain the property she has to a value of $7970 and, following a sale of the Suburb C property, a division of the net proceeds of sale between the parties so as to retrieve an overall settlement of assets not including superannuation entitlements 65 per cent to the wife and 35 per cent to the husband.
In relation to the superannuation entitlements, I will make a superannuation splitting order in relation to the husband’s D Super Fund in favour of the wife with the base amount of $13,465, thereby providing to each of the parties an equal amount of the superannuation entitlements pool.
The Wife’s application for costs against the husband in relation to the Intervener
The issue that brought the Intervener into the matter was an issue purely between the husband and the Intervener, relating as it did to costs and disbursements owed by the husband to the Intervener. That issue was settled between the husband and the Intervener during the hearing. However, on the evidence before the court, the wife incurred costs in relation to the intervener matter and she made an application that the husband pay those costs. An order was made on 16 August 2019 reserving the wife’s costs in relation to the intervener’s application in a case, including in relation to the appearance of Counsel on behalf of the wife on 16 August 2019.
Costs in relation to matters under the Act are governed by section 117, which provides in subsection 117(1) that the normal position in relation to costs in family law matters is that “each party to proceedings under this Act shall bear his or her own costs.”
Subsection is 117(2) provides for a departure from the usual rule in subsection 117(1) as follows:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) in the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Subsection 117(2A) provides as follows:
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle proceedings in the terms of any such offer; and
(g) such other matters as the court considers relevant.
Pursuant to section 117(2), a finding by the court of circumstances that justify the making of a costs order is the necessary preliminary to the making of an order and beyond that there is no additional or special onus on an applicant for a costs order.
If, after having considered the matters referred to in subsection 117(2A), the court is of the opinion that the circumstances justify a departure from the usual rule that each party bear his and her own costs, then the court must determine the quantum of the costs to be awarded.
The wife provided written submissions on the question of those costs, prepared by her counsel, Mr Shaw. The wife sought that her solicitor’s costs, including of attending at the court on 16 August 2019 to instruct counsel, in a sum of $700 (not apparent as to whether inclusive or exclusive of GST) and also counsel’s costs as a disbursement in a sum of $1320 (inclusive of $120 GST). Both sums are in excess of the amounts set in Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) for the applicable work. Accordingly, the costs claimed are in the nature of indemnity costs.
I agree with the decision of Raphael FM (as His Honour then was) in Colan Products Pty Ltd v Luxon Pty Ltd (No. 2) [2002] FMC 90 that, when applying the scale provided by the Federal Circuit Court Rules 2001, Counsel’s fees are not claimable as a disbursement and what is to be claimed is the advocacy loading on the daily hearing fee.
I need not traverse the law in relation to indemnity costs in relation to matters under the Act unless I find that the wife is entitled to a costs order in her favour as against the husband in relation to the Intervener matter, as the question of indemnity costs goes to quantum.
I do not consider that there was a necessity for an appearance by or on behalf of the wife on 16 August 2019 as that mention related solely to the Intervener’s Application in a case and the wife was no part of that. The Intervener’s application, as filed, for payment by the husband to the Intervener for outstanding costs, fitted wholly within an outcome of the property settlement proceedings as advocated for by the wife in her application that went to hearing.
I find that none of the considerations under section 117(2A) justify a finding that there are circumstances that justify the court making the order as to costs as sought by the wife.
For completeness I should address Part 21 rule 21.04 of the Federal Circuit Court Rules 2001 that provides:
21.04 Costs Reserved
If costs of a motion, application or other proceedings are reserved, the costs reserved follow the event unless the court otherwise orders.
That rule would seem to relate more to the Court’s general Federal Law jurisdiction, rather than matters under the Act, given the terms of section 117 of that Act. In any event, in relation to the wife’s costs of the Intervener matter having been reserved, the court will “otherwise order”, though as between the husband and the wife, the costs cannot really “follow the event”, the wife not having been involved in any real manner in “the event”.
Accordingly, I make the parenting and property settlement orders as set out at the commencement of this judgment.
I certify that the preceding three hundred and four (304) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 16 July 2021
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