Poole and Poole
[2014] FCCA 757
•17 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| POOLE & POOLE | [2014] FCCA 757 |
| Catchwords: FAMILY LAW – Property adjustment – notional add backs. FAMILY LAW – Parenting – practicality of arrangements – continuation of current previous arrangements. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60I, 61DA, 65DAA(5), 75(2), 121. Family Law (Dispute Resolution Practitioners) Regulations 2008 |
| Robb & Robb (1995) FLC 92-555 Stanford & Stanford [2012] HCA 52 Eakins & Eakins [2013] FCCA 1114 Bevan & Bevan (2013) FLC 93-545 Townsend (1995) FLC 92-569 AJO v GRO (2005) FLC 93-218 Essex [2009] FamCAFC 236 Watson & Ling [2013] FamCA 57 Sebastian (No. 5) [2013] FamCA 191 Bowe & Bateman [2013] FamCA 253 Idoni [2013] FamCA 874 Kowaliw & Kowaliw (1981) FLC 91-092 |
| Applicant: | MS POOLE |
| Respondent: | MR POOLE |
| File Number: | CAC 1681 of 2011 |
| Judgment of: | Judge Harman |
| Hearing date: | 21 February 2014 |
| Date of Last Submission: | 21 February 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 17 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mazengarb of Counsel |
| Solicitors for the Applicant: | Mazengarb Family Lawyers |
| Counsel for the Respondent: | Mr Cummings of Counsel |
| Solicitors for the Respondent: | Farrar Gesini Dunn |
ORDERS
Property Orders
The Applicant be declared the sole legal and beneficial owner of the following property:
(a)The 1998 Holden Jackaroo motor vehicle in the possession of the Applicant.
(b)The 2010 Ford Mondeo in the possession of the Applicant.
The Respondent be declared the sole legal and beneficial owner of the 2002 Holden Astra motor vehicle in the possession of the Respondent.
Unless otherwise specified in these orders and except for the purpose of enforcing the payment of any money due under these or any other subsequent orders;
(a)Each party be solely entitled to the exclusion of the other party to all property and chattels of what so even nature and kind including choses in action in the possession of such party as at the date of this order.
(b)Moneys standing to the credit of a party in any bank accounts shall become the property of that party.
(c)Each party be declared the sole legal and beneficial owner of the superannuation entitlement held in their own name and each party forgoes any claim in respect of the other party’s superannuation entitlements.
(d)All insurance policies shall become the sole property of the owner of the policy.
Within 28 days of the date of this Order the Respondent pay such monies as are necessary to discharge the Joint [P] Credit Union debt [omitted] in the sum of approximately $19,574.00 and shall otherwise and in any event indemnify the wife with respect to that liability, make all payments as and when they fall due with respect to the liability (whether refinanced into the Husband’s sole name or remaining in joint names) and otherwise hold the wife harmless with respect to that debt.
Unless otherwise specified in these Orders, each party be solely responsible for any debt or liability in their name as of the date of these Orders and will indemnify the other and keep them indemnified with respect to those liabilities including but not limited to any line of credit, personal loan, credit card or taxation liability.
In default of the parties or either of them doing all acts and things and executing such documents as are necessary to give effect to these Orders, a Registrar of the Federal Circuit of Australia is and shall be appointed pursuant to section 106A of the Family Law Act to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said Orders.
Parenting Orders
The parties shall have equal shared parental responsibility for the children of their relationship, [X] born [in] 2000 and [Y] born [in] 2002 (‘the children’)
[X] and [Y] shall live with the Applicant and spend time with the Respondent as follows:
(a)From Friday after school until the commencement of school on Tuesday each fortnight;
(b)Every Wednesday from after school until 8:00pm; and
(c)For one half of each of the gazetted school holidays occurring at the end of the 1, 2 and 3 school terms, at times to be agreed between the parties, but failing agreement from 12:00 noon on the first Saturday of the holiday period until 12:00 noon the following (middle) Sunday.
Christmas School Holidays
(d)For two weeks in each Christmas school holiday period as agreed between the parties and in the absence of an agreement, from 27 December to 10 January in 2014 and each alternate year thereafter and from 3 January to 17 January in 2015 and each alternate year thereafter.
Changeover
(e)Unless otherwise agreed, the father shall be responsible for collecting the children from the children’s school or the mother’s home at the beginning of each period of time spent with the father and returning the children to the mother or the children’s school, at the conclusion of each period of the children’s time spent with the Father.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that the Applicant mother seeks to press an Application for costs.
The Applicant shall file and serve written submission as to the Orders sought by her with respect to costs (and specifying the quantum and calculation of same) same to be filed and served by close of business 9 May 2014.
In the event that written submissions are not received by my Chambers by 4pm, 9 May 2014 the Application for costs will be dismissed.
In the event that submissions are received and served upon the Respondent, then the Respondent shall within a further 21 days, i.e. no later than close of business 30 May 2014 file and serve any written reply thereto.
IT IS NOTED that publication of this judgment under the pseudonym Poole & Poole is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
CAC 1681 of 2011
| MS POOLE |
Applicant
And
| MR POOLE |
Respondent
REASONS FOR JUDGMENT
These proceedings involve competing applications for both property adjustment and parenting orders.
The parties to the proceedings are Ms Poole (the Applicant in the proceedings and the mother of the children the subject of the proceedings) and Mr Poole (the Respondent and the children’s father).
The parenting aspect of the proceedings relates to care arrangements for two children:
[X] born [in] 2000 (currently 13 years of age); and,
[Y] born [in] 2002 (currently 11 years of age).
History of proceedings
The proceedings were commenced by an Application filed in the Canberra Registry of the Federal Circuit Court 13 February 2013. That Application sought Orders with respect to property adjustment only.
On 19 April 2013 a Response was filed by Mr Poole. That Response sought Orders with respect to both property adjustment and parenting.
At the time that Mr Poole's Response was filed it is unclear whether a certificate pursuant to section 60I of the Family Law Act was filed. None can be located upon the Court file.
Ms Poole has not, since the filing of her Initiating Application 13 February 2013, filed any Amended Application or Reply. Thus the parenting relief sought by Mr Poole by his Response filed 19 April 2013 is, on its face, undefended. However, with respect to same:
a)
The matter has proceeded at all times since the filing of
Mr Poole's Response on the basis that there is a judiciable controversy with respect to parenting.
b)It would not appear, in the past management of the proceedings, that the absence of a section 60I certificate has been raised by or with the parties.
c)Each party has, for the purpose of the hearing, filed a Minute of Orders sought by them and which included parenting relief agitated by each.
d)Counsel for each of the parties confirmed, prior to the commencement of the trial, that their client was fully aware of the relief sought and proposed by the other and was not taken by surprise or disadvantaged through the absence of an Amended Application or Reply filed by Ms Poole seeking parenting Orders and was in a position to conduct their case and meet the case of the other.
It is on the above basis only that the parenting proceedings have been entertained.
Section 60I (7) of the Act provides as follows:
a)Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant [in this case Mr Poole] files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.
b)Subsection (9) provides as follows:
Subsection (7) does not apply to an application for a Part VII order in relation to a child if:
(a) the applicant is applying for the order:
(i) to be made with the consent of all the parties to the proceedings; or
(ii) in response to an application that another party to the proceedings has made for a Part VII order; or
(b) the court is satisfied that there are reasonable grounds to believe that:
(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings; or
(c) all the following conditions are satisfied:
(i) the application is made in relation to a particular issue;
(ii) a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;
(iii) the application is made in relation to a contravention of the order by a person;
(iv) the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or
(d) the application is made in circumstances of urgency; or
(e) one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or
(f) other circumstances specified in the regulations are satisfied.
While section 60I (9) refers to the “regulations” there is nothing of relevance or assistance contained within either the Family Law Regulations or Family Law (Dispute Resolution Practitioners) Regulations 2008.
Rule 1.05 of the Family Law Rules 2005 (incorporated in the Federal Circuit Court Rules by reference to regulation 1.05 thereof) contains a statement of required “pre-action procedures” and the circumstances in which compliance therewith might be excused (which obligation is somewhat superseded by section 60I). That rule does not expand upon the bases for exemption.
Section 60I subsections (10) and (11) provide that:
(10) If:
(a) a person applies for a Part VII order; and
(b) the person does not, before applying for the order, attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with; and
(c) subsection (7) does not apply to the application because of subsection (9);
the court must consider making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues.
(11) The validity of:
(a) proceedings on an application for a Part VII order; or
(b) any order made in those proceedings;
is not affected by a failure to comply with subsection (7) in relation to those proceedings.
It is unclear whether consideration has been given at any time to the making of an order requiring the parties to attend Family Dispute Resolution in the absence of it having occurred (as evidenced by a section 60I certificate) prior to filing or whether consideration has, in fact, been given to striking out the Application for want of jurisdiction.
In circumstances whereby the proceedings come before me for the first occasion when listed for Final Hearing of all issues for trial and when clearly the matter has been mentioned before the Court on a number of occasions and it has been open to the parties or either of them to bring to the Court’s attention the absence of compliance with the requirements of section 60I, I am not satisfied that the interests of justice are now served by adopting any course other than to proceed with the Final Hearing and determination of the proceedings.
I make clear that neither party has sought an Order nor is there evidence to support the making of an Order that would grant an “exemption” from attendance at Family Dispute Resolution (by reference to subsection (9) of section 60I). In those circumstances a real issue arises with respect to the prohibition imposed by subsection (7) that “the court… must not hear an application for a Part VII order…”. However, I am satisfied that a broad reading of that provision is to be preferred and thus on the first occasion that the matter came before the Court after the filing of Mr Poole's Response the Court “heard” the application and has proceeded to do so thereafter. Any other view would require me to decline to hear that aspect of the controversy.
It is to be noted that if a narrow interpretation of subsection (7) were applied (that the Court is precluded from hearing and determining the suit absent compliance with section 60I (whether through attendance or attempted attendance at Family Dispute Resolution as evidenced by a section 60I certificate or the granting of an exemption with respect to same)) then the consent and submission of the parties cannot vest jurisdiction in the Court. It is on this basis, or at least in part, that the broad interpretation of subsection (7) is adopted by me and I will thus proceed to hear and determine the parenting dispute to conclude it and avoid fresh and unnecessary proceedings.
Material considered
In these proceedings I have read and considered the following material:
a)In the wife’s case:
(a)Her Application initiating proceedings filed 13 February 2013;
(b)Affidavit of Ms Poole affirmed 13 February 2013 and filed the same day;
(c)Affidavit of Ms Poole sworn 7 February 2014 and filed 10 February 2014;
(d)Minute of Orders sought by Ms Poole, filed 14 February 2014 (which, in the absence of any Amended Application or Reply setting out parenting relief constitutes written notice of her position);
(e)Amended Schedule of Assets & Liabilities;
(f)Financial Statement of Ms Poole sworn or affirmed 7 February 2014, filed 10 February 2014;
(g)Chronology of events filed by the wife 14 February 2014.
b)In the case of Mr Poole I have read and considered:
(a)His Response filed 19 April 2013;
(b)Affidavit of Mr Poole sworn 14 February 2014, filed the same day;
(c)Financial Statement of Mr Poole sworn or affirmed 14 February 2014, filed the same day;
(d)Case Outline Document filed by Mr Poole's Counsel 14 February 2014;
(e)Written submissions on behalf of Mr Poole (a document of some 26 pages) filed in Court at the conclusion of the trial.
I have also read, with the consent of the parties, a Child Inclusive Dispute Conference Memorandum completed by a Family Consultant 30 July 2013.
Chronology of events
Each party has provided a chronology of events and each is incorporated herein.
I have incorporated both chronologies on the basis of endeavouring to demonstrate and display the areas of commonality between the parties.
The wife’s chronology
[omitted] 1966
Respondent Husband was born (47 years).
[omitted] 1971
Applicant Wife was born (43 years).
[omitted] 1988
The Wife’s child, [A] was born (25 years)
[omitted] 1991
The Wife’s child, [B] was born (22 years).
[omitted] 1993
The Husband’s child, [C] was born (22 years).
1998
Parties commenced living together.
1998
Parties purchased a 1998 Holden Jackaroo Motor Vehicle for $32,000.00 – funded by a personal loan with [C] Bank.
1999
The Husband sold his Suzuki Patar Motor Vehicle for approximately $6,500.00. The money was used to pay towards his debt of $20,000.00 to a debt management company
2000
Parties combined bank accounts.
[omitted] 2000
Parties’ child, [X] was born (13 years).
2001
The Wife received a redundancy payout of $44,000.00 from [omitted]. The money was used to pay towards the wedding and other items including furniture and a household computer.
[omitted] 2002
Parties were married.
August 2002
The Wife purchased a 2001 Holden Commodore Motor Vehicle for $28,000.00 with the funds received for her redundancy.
[omitted] 2002
Parties’ child, [Y] was born (11 years).
2002/2003
The Husband’s parents gifted him $20,000.00 for a home deposit but the money was used instead for an unknown purpose.
September 2006
Parties’ briefly separated.
February 2007
The Husband obtained a loan through GE Money in the sum of $12,000 to discharge his debt of $20,000.00 to a debt management company and also pay his credit card debt.
September 2007
The Husband obtained a personal loan through NAB in the sum of $30,000.00 to purchase a 2002 Holden Astra Motor Vehicle in the sum of $15,000.00. Husband promised to use loan to pay off Wife’s credit card debt of $7,247.09 which did not occur.
September 2007
The Wife gave [B] her Mazda Motor Vehicle.
October 2007
Parties’ separated their finances and maintained separate accounts.
January 2008
The Husband told the Wife that the marriage was over.
January 2008
Parties reconciled and the Husband moved back into the Matrimonial home.
June 2008
The Husband was terminated from employment with [omitted] and received $25,000.00. Use of monies is unknown.
July 2008 - October 2009
The Wife went on a posting to the [S] for employment with [omitted] and accumulated $30,000.00 in savings. $20,000.00 of such was used towards marital loans, specialist expenses for herself and the children and car repairs.
July 2008 to October 2009
The Wife paid for all expenses including rent, utilities, children’s expenses, the Husband’s credit card debt and the joint loan. The Husband saved money from his employment.
February 2010
The parties obtained a joint personal loan through the [P] Credit Union in the sum of $30,000.00 to pay out the lease on the Holden Jackaroo Motor Vehicle in the sum of $13,000.00 and to pay other joint debts, namely:
The Husband’s credit card debt with NAB at $4,000.00;
The Husband’s Coles Myer credit card at $3,000.00
The Wife’s credit card at $7,000.00.
19 February 2010
The Wife obtained a loan through GE Money in the amount of $10,452.00 and a Holden Commodore was bought through a friend.
March 2010
The Wife was involved in a car accident and the Holden Commodore was written off. The Wife received a full refund from the friend as the car was insured in the friend’s name.
March 2010 to June 2010
The Wife paid $7,241.00 on repairs to the Jackaroo Motor Vehicle.
April 2010
Parties briefly combined finances.
8 July 2010
The Wife obtained a secured loan with GE Money in the amount of $12,449.95 to pay out the balance of the first loan with GE Money in the amount of $2,517.66 and to pay household and child expenses.
May 2011
The Wife moved house and took the children on a holiday to the Gold Coast using some of her accumulated savings from the posting to the [S].
November 2011 to February 2012
The Wife stopped making payments to the [P] Credit Union loan due to the Husband ceasing child support payments and thus lack of funds.
February 2012
The Wife negotiated rate with [P] Credit Union to lower weekly repayments.
14 April 2012
Party’s marriage was dissolved via a decree nisi.
July 2012
The Wife increased payments to [P] Credit Union to cover arrears.
20 September 2012
The Wife paid off GE Money loan in the amount of $7,446.10. The Wife refinanced the loan to cover household bills and medical expenses for herself and the children.
13 February 2013
The Wife filed an Initiating Application and her Affidavit and Financial Statement.
13 February 2013 to Current
The Wife reduced the [P] Credit Union Debt by $4,361.03 to current level of $19,273.97.
2 April 2013
Orders were made before Federal Magistrate Brewster at the Federal Magistrates Court in relation to attendance at a Conciliation Conference by the parties and for the Husband to file a Response, Affidavit and Financial Statement.
19 April 2013
The Husband filed a Response and his Affidavit and Financial Statement.
9 May 2013
Orders were made before Registrar Parker at the Federal Circuit Court in relation to attendance at a family conference by the parties and their children to resolve the issue or prepare a family report.
30 July 2013
Counsellor D publishes Family Consultant Memorandum upon interviewing the parties separately and both children together and separately.
2 September 2013
Orders were made before Judge Harland at the Federal Circuit Court to adjourn the matter until call over for allocation of a final hearing date.
22 October 2013
Orders were made before Judge Baumann at the Federal Circuit Court in relation to listing the matter for final hearing and to file particular documents.
November 2013
The Wife acquires loan from Aussie Home Loans in the amount of $28,000.00 to pay out balance of GE debt in the amount of $10,000.00, to purchase the Holden Mondeo motor vehicle in the amount of $12,500.00 and pay out her credit card debt.
6 February 2014
Orders were made before Registrar Parker at the Federal Circuit Court that the Wife file and serve her Affidavit by 7 February 2014 and in the event that this does not occur, to appear before Judge Baumann on 10 February 2014. An Order was also made for the Husband to comply with Orders made on 22 October 2013 by 14 February 2014.
7 February 2014
Wife files her Affidavit and Financial Statement.
10 February 2014
Parties appear before Judge Baumann at the Federal Circuit Court for Directions.
14 February 2014
Wife files Chronology of Events, Schedule of Assets and Liabilities and Minutes of Orders Sought.
The husband’s chronology
[omitted] 1966
Birth of Respondent Husband – currently 47 years of age.
[omitted] 1971
Birth of Applicant Wife – currently 43 years of age.
Mid 1998
The Parties commence cohabitation.
[omitted] 2000
Birth of child [X] (“[X]”) – currently 13 years of age
30 March 2002
The parties are married.
[omitted] 2002
Birth of child [Y] (“[Y]”) – currently 11 years of age.
July 2008
Respondent Husband received a redundancy payout from [omitted] of $25,000.00.
17 July 2009
Respondent Husband begins renting a separate house in the suburb of [omitted] and lives in the house intermittently until the final separation.
December 2009
Applicant Wife received a lump sum of $30,000 at the end of her [employment] in [S]. The tour began in August 2008.
February/March 2010
Applicant Wife buys a car after obtaining $10,000 loan with GE Money. The car is destroyed in an accident when the Applicant is driving after a few weeks.
12 April 2010
Parties separate on a final basis.
14 February 2012
Decree Nisi granted, formally dissolving the marriage of the parties.
13 February 2013
Applicant files Initiating Application with supporting Affidavit and Financial Statement.
19 February 2013
Respondent files Notice of Address for Service.
2 April 2013
Parties appear before FM Brewster (as he then was). Orders are made, inter alia, requiring:
- Respondent to file responding documentation within 21 days.
- Parties to attend a conciliation conference on 9 May 2013.
19 April 2013
Respondent files Response to Applicant’s Initiating Application with supporting Affidavit and Financial Statement.
29 April 2013
Applicant’s lawyer files Notice of Withdrawal as Lawyer.
9 May 2013
Parties attend a Conciliation Conference. Respondent continues to be unrepresented. No settlement is reached.
30 July 2013
Counsellor D interviews the parties separately and both children together and separately before publishing a short-form Family Consultant Memorandum to Court.
2 September 2013
Parties appear before Judge Harland. An order is made adjourning the matter to the call over on 22 October 2013 for the allocation of final hearing dates.
22 October 2013
Parties appear before Judge Baumann. Trial directions are made setting out the following timeline for filing:
- 24 January 2014 Applicant is to file and serve any affidavits on which intend to rely.
- 7 February 2014 Respondent is to file and serve any affidavit upon which they intend to rely. Subpoenas are to be returnable no later than this date.
- 14 February 2014 Applicant is to file and serve any affidavits on which they intend to rely in reply to the Respondent’s affidavit. Both parties are to file and serve a list of assets and liabilities, a chronology and a minute of orders sought is those orders are different to those sought in that party’s application or response.
- 21 February 2014 the final hearing of the matter.
His Honour Judge Brewster’s orders also note “that the parties agree that there is no need for a family report where the essential issue is not how much time the children spend with the father but when that time should take place”
6 February 2014
Registrar Parker alters the trial directions made by Judge Baumann at the request of the Respondent Husband’s solicitor after the Applicants Wife fails to comply with the order requiring her to file affidavit material by 24 January 2014:
- Parties to make full disclosure of all relevant documents forthwith.
- 10am 7 February 2014: Applicant is to file and serve any affidavits on which they intend to rely.
- In the event that the applicant mother does not comply with the new filing date for her affidavits, the matter is listed before Judge Baumann at 11.00am 11 February 2014.
- Close of business 14 February 2014: Respondent is to file and serve any affidavits on which they intend to rely.
7 February 2014
The Applicant Wife does not comply with the 10am filing deadline. The Respondent Husband confirms with the Registry of the Federal Circuit Court that the matter is listed for directions before his Honour Judge Baumann on 10 February 2014. Thereafter, the Applicant Wife faxes through her affidavit and a financial statement to the Respondent Husband’s lawyers office at approximately 4:45pm.
10 February 2014
The parties appear before Judge Baumann for directions. As the Applicant Wife has complied, albeit late, with the amended trial directions orders, no further orders are made. His Honour reserves the question of the cost of the directions hearing to the trial Judge and further grants the Respondent Husband leave to obtain a valuation of the wife’s [P] Superannuation Account initially at his cost and with the question of the costs of that valuation to be determined at the trial.
14 February 2014
Respondent Husband files his affidavit, financial statement, and this document which a chronology, statement of assets and liabilities and updated minute of orders sought.
21 February 2014
Final hearing of the matter before Judge Harman.
.
Issues in dispute
The areas of controversy between the parties are not substantial. To the extent that there is any significant dispute with respect to aspects of the parties’ financial history these can, perhaps, be addressed by the husband’s concession, at the commencement of his cross-examination, that “My knowledge of numbers and dates has always been less than Ms Poole’s [Ms Poole’s].”
With respect to parenting arrangements there would appear to be relative agreement that:
a)
The parties separated on a final basis 12 April 2010.
Mr Poole indicated during his cross examination that for some months (possibly as many as 6-8 months) prior to this date the parties’ relationship had been in a state of deterioration. Mr Poole suggested that the parties had, during this period, preceding 12 April, spent periods of time separate and apart from each other including, on Mr Poole’s evidence, he having rented separated accommodation.
Ms Poole’s evidence, (which Mr Poole would appear in cross examination to have agreed with and adopted), is that these premises were substantially rented and occupied by an adult child of Ms Poole’s from a prior relationship.
b)From the separation of the parties and until early 2012 (approximately February) the parties had an equal or relatively equal shared care arrangement in place with respect to the care of the children. This arrangement is denied by Ms Poole but her evidence (which generally in relation to the parenting issue is brief and incomplete) does not address this assertion by Mr Poole and Mr Poole’s evidence is thus accepted.
c)Since February 2012 (or thereabouts) to the present time the children have lived in an arrangement whereby they spend time with their father each alternate weekend from Friday after school until the commencement of school Tuesday together with a period each Wednesday afternoon from after school until 8pm.
d)Mr Poole has re-partnered and lives on a fulltime basis with his partner Ms P. Ms P has three children of her own [names omitted] who are 9, 11 and 14 years of age respectively) and who live within Mr Poole’s household with he and his partner each alternate week from Sunday evening through to the following Sunday evening.
e)At present the parenting arrangement for [X] and [Y] is such that they join Mr Poole’s household on the Friday evening preceding Ms P’s children joining the household (and such that [X] and [Y] are with the father and his partner for the weekend in the absence of Ms P’s children and Ms P’s children then arrive Sunday evening and for the commencement of the school week). It is asserted by Mr Poole that his creates significant difficulties within the household in having Ms P’s children, together with [X] and [Y], taken to school on Monday and Tuesday mornings particularly as Mr Poole, as a consequence of his employment, is not available to do so personally and is reliant upon his partner. It is also to be remembered that Mr Poole lives to the south of the Canberra CBD and Ms Poole (and the schools attended by the children) to the north of the Canberra CBD.
On the above issues there is little factual dispute between the parties. This is hardly surprising noting that the evidence with respect to the parenting arrangements comprises:
a)Paragraphs 25-37 of Mr Poole's Affidavit (being a little over two pages) and paragraphs 2-7 of Ms Poole’s Affidavit 7 February 2013 (less than one complete page); and,
b)The Child Inclusive Child Dispute Conference Memorandum.
With respect to the property adjustment issues there are broader factual disputes between the parties. However, to address these by reference to the totality of evidence in these reasons is unnecessary. Suffice to say that the totality of the evidence of the parties, including their responses during cross examination (each having been required for that purpose), is taken into account.
The issues in dispute between the parties are focused upon two discrete areas of controversy, namely:
a)The accumulation of savings pre-separation and their expenditure post-separation; and
b)The accumulation of debt during the relationship.
Accumulation of savings
During the relationship Ms Poole spent a period of time in [S] as an [occupation omitted]. The parties agree that as a consequence of this employment and allowances and entitlements paid to Ms Poole as a consequence thereof that savings of some $30,000 were accumulated in a short space of time.
These savings are no longer available to the parties.
At paragraph 32 of her Affidavit Ms Poole deposes as follows:
In or about July 2008, I travelled to [S] for a work posting with the [omitted]. During this time I accumulated approximately $30,000 in savings. I have since applied approximately $20,000.00 of this money towards ongoing payments of marital loans and special needs of children and myself, namely specialist medical expenses and car repairs.
At paragraph 33 Ms Poole deposes:
In May 2011, I used some of the money to move house and take the children on a four day holiday to the Gold Coast. Approximately $10,000.00 remains in my savings account.
Ms Poole, by trial and her subsequent Affidavit 7 February 2014, does not make reference to the funds suggested to have been extant as at February 2013. However, her Financial Statement discloses funds held by her in her bank account (which figure is not challenged) of $350.
During cross examination Ms Poole asserted that the funds of $10,000 (as at February 2013) had been depleted and expended on the same basis as previously (i.e. servicing debts and meeting day to day living expenses) in the preceding 12 month period.
Mr Poole deposes with respect to the wife’s savings at paragraph 22 of his Affidavit and as follows:
“Add-back” for savings retained by the Applicant at the date of separation as a result of her [employment] in [S] - $30,000.00.
Far more resplendent material is contained in the written submissions provided in Mr Poole’s case. However, those submissions must be based upon the evidence that is available and do not form part of the evidence.
Mr Poole's Counsel is critical of Ms Poole as regards her evidence with respect to the manner in which these savings were dealt with by her. However, I have the wife’s clear evidence, on oath, as to how she has dealt with the funds and neither party has sought to suggest that there has been anything other than full and frank disclosure between the parties (consistent with pre-action procedures incorporated in the Federal Circuit Court Rules by reference to regulation 1.05 thereof and regulations 14 and 24 of the Rules).
It is submitted in Mr Poole’s case that the $30,000 of savings, which are agreed to have existed as at separation but no longer exist, should be treated as a “premature distribution of property”. I will deal with and address the husband’s submission as part of the legislative framework.
As regards the evidence of the parties I accept that of Ms Poole that she has expended the funds of $30,000 in their entirety and that these have been used by her, consistent with her evidence above, in servicing debt, meeting day to day living expenses, a number of expenses for herself and the children of a “special” nature (e.g. medical expenses) and, on one occasion, a four day holiday for herself and the children.
Accumulation of debt
Subject to some issue as to quantum there is no dispute between the parties that at the commencement of the relationship Mr Poole had a number of debts including:
a)A personal loan relating to a motor vehicle approximately $8,000-$10,000;
b)A NAB credit card debt approximately $2,000;
c)A debt owed to a debt management company (which was clarified during Mr Poole’s cross-examination as arising from the sale of a property acquired during a prior relationship) of approximately $17,000-$20,000.
During the relationship each of the above debts was discharged. There is no evidence as to the manner or bases upon which such discharges occurred. However, the parties are in agreement that the debts had ceased to exist at some point during the relationship.
Ms Poole also alluded to the obligation of Mr Poole to pay child support with respect to his child of a former relationship. The full quantum of that liability is not before the Court. However, it is conceded by Mr Poole that a child support liability had existed until that child reached his majority.
For Mr Poole’s part he has asserted that Ms Poole’s two children of a prior relationship had, for a significant period of the parties’ relationship, lived with them.
Whilst I will return to and address the above matters by reference to the legislative pathway I am satisfied that to the extent that either party might be taken to assert entitlement to an adjustment based on authorities such as Robb & Robb (1995) FLC 92-555 that no such adjustment is warranted or necessary.
Notwithstanding the discharge of the debts brought into the relationship by Mr Poole, further debt was accumulated during the relationship and such that at separation or proximate thereto the parties held significant debt whether in their joint or single names.
There are six primary and significant debts of relevance to the proceedings and comprising:
a)In or about February 2007 a GE Money loan was obtained by Mr Poole in his sole name.
b)In or about September 2007 a NAB personal loan was obtained by Mr Poole in his sole name. That loan would appear to have initially been drawn down in the sum of approximately $30,000 and used to purchase a Holden Astra motor vehicle (still retained by Mr Poole) and the balance of monies having been borrowed to reduce or discharge the above GE Money loan in Mr Poole’s name together with a credit card debt in Ms Poole’s name. Ms Poole asserts that the credit card debt in her name was not reduced and no funds applied towards or for that purpose.
c)
In February 2010 a [P] Credit Union credit facility in the joint names of the parties was obtained for an amount of $30,000. The evidence of Ms Poole (paragraph 29 of her Affidavit) is that these funds were used to discharge a lease with respect to a Holden Jackeroo motor vehicle (which Ms Poole retains) and to pay a number of other debts including a credit card debt in Mr Poole’s name, a Coles Myer credit card in Mr Poole’s name and a further credit card in
Ms Poole’s name. I accept that evidence.
d)
In February 2010 a GE Money loan was obtained by
Ms Poole in her sole name and to affect repairs and improvements to the Jackeroo motor vehicle retained by her.
e)In July 2010 Ms Poole obtained a second GE Money loan in her sole name which was used to discharge the above GE Money loan and additional funds were drawn down which, on Ms Poole’s evidence (which I accept) were applied towards household expenses.
At present the liabilities of the parties would appear to comprise (by reference to their Financial Statements and evidence):
a)NAB loan in the name of Mr Poole, outstanding balance of $3,700.
b)GE Finance loan in the name of Mr Poole, $12,000.
c)NAB Visa card in the name of Mr Poole, $12,000.
d)[P] Credit Union debt in joint names, $19,273.97.
e)
Aussie Home loans debts in Ms Poole’s name and (obtained post separation and to meet expenditure of which Ms Poole claims no contribution or culpability on the part of
Mr Poole) $28,000.
f)ANZ Visa card debt in Ms Poole’s name $3,500.
The evidence of Mr Poole (which is not seriously cavilled with by
Ms Poole) is that at separation the joint [P] Credit Union debt had an outstanding balance of approximately $30,000 and the NAB loan in
Mr Poole’s name had a balance of approximately $18,000.
Mr Poole seeks to assert “an agreement” between the parties as to the apportionment of debts between them (see paragraph 10 of his Affidavit). However, that assertion is denied by Ms Poole and in the form of that evidence as it stands it is far from admissible. In any event the existence or otherwise of prior agreement which, to the extent that it may have been replied upon or partly discharged, whilst potentially relevant is far from dispositive and does not bind the Court in the exercise of discretion.
With respect to the liabilities that exist only the NAB and the [P] Credit Union debts are the subject of any serious controversy as between the parties. Each concedes that the GE finance debt in their name is referable to assets they have obtained or expenditure of their own (whether pre or post separation) and should be retained by them without recourse to the other. Each makes similar concessions with respect to the credit card debts in their names. Finally, and as noted above, Ms Poole does not seek to assert that the Aussie Home Loans debt is, in any fashion, referable to the relationship or Mr Poole.
Each of the parties otherwise concedes that lump sum funds were introduced by the other (by way of redundancy or, in the case of
Mr Poole, a gift from his parents) and these are of not dissimilar amounts.
Each party has been in paid employment throughout the relationship and for the majority of it (although Mr Poole had a brief period of being out of work and upon which nothing turns).
As indicated above I do not propose to canvass all of the evidence of the parties with respect to each and every transaction or event. The evidence of the parties is, in any event, somewhat deficient, brief and minimal.
All evidence led by the parties (both in chief and arising from their cross examination) has been considered and will, to the extent that it is necessary to touch upon it, be referred to in the discussion of the legislative pathway, to which I now turn.
Legislative pathway
Parenting arrangements
I propose to deal with the parenting arrangements first. That is not because they have any substantial or significant impact upon the determination of property proceedings.
Frequently a determination of parenting arrangements must precede the determination of property adjustment issues and as the parties are significantly in dispute with respect to arrangements for their children and thus these must be determined so that appropriate consideration can be given, in the property adjustment proceedings, to what adjustment, if any, should occur by reference to section 75(2) of the Family Law Act.
The above does not arise in the parenting proceedings in this case and as each parent proposes that an almost identical amount of time will be spent by the children with their father (i.e. four nights per fortnight on Ms Poole’s case and five nights per fortnight on Mr Poole’s case).
The parties’ parenting proposals
The Orders sought by the Applicant are as follows:
7. That the parties have equal shared parental responsibility for the children, [X] born [in] 2000 and [Y] born [in] 2002.
8. That the children remain living with the Applicant and spend time with the Respondent as follows:
a. From Friday after school until the commencement of school on Tuesday each fortnight;
b. Every Wednesday after school until 8:00pm; and
c. For one half of the gazetted school holidays occurring at the end of the 1, 2 and 3 school terms, at times to be agreed between the parties, but failing agreement from 12:00 noon Saturday to 12:00 noon the following Sunday commencing on the first Saturday following the last day of school.
Christmas Holidays
d. For two weeks in each Christmas school holiday period as agreed between the parties and in the absence of an agreement from 27 December to 10 January in even numbered years and from 3 January to 17 January in odd numbered years.
Changeover
e. That unless otherwise agreed, the Father shall be responsible for collecting the children from the Mother’s at the beginning of time spent with the Father and returning the children to the Mother or the children’s school, at the conclusion of the children’s time spent with the Father.
The Orders sought by the Respondent are as follows:
7. The Applicant and Respondent have equal shared parental responsibility for the children [X] born [in] 2000 and [Y] born [in] 2002 (“the children”).
8. The children live with the Applicant except as otherwise provided in these Orders.
9. The children live with the Respondent during school terms in a fortnightly arrangement as follows:
a. During the first week, from after school Wednesday until 5:00pm on the following Sunday;
b. During the second week, from after school Wednesday until 8:00pm that evening;
10. That the children spend time with the parties during school holidays (excluding Christmas school holidays) as follows:
a. For the first half of the school holidays commencing at the end of school on the last day of the school term with the Applicant Mother;
b. For the second half of all school holidays periods with the Respondent Father.
11. For the purpose of the preceding Order, in the absence of any written agreement between the parties to the contrary, the second half of the school holidays is deemed to commence at 5:00pm on the middle Saturday of the school holidays or the middle Wednesday of the school holidays, if the relevant holiday period has an odd number of weeks.
12.
a. The children spend the first half of the December/ January school holidays in 2013/2014 and alternate December/ January holidays thereafter, with the Applicant Mother.
b. The children spend the second half of the December/January school holidays in 2013/2014 and every alternate December/January and the second half of every December/ January school holidays thereafter, with the Respondent Father
c. In the other December/January school holiday periods the children will spend the first half with the Respondent Father, and the second half with the Applicant Mother.
13. That on Christmas Day each year the parent with whom the children are living make them available to spend time with the other parent for a period of at least six hours at a time to be agreed between the parents, but failing such agreement from 1:00pm until 7:00pm.
14. Each parent will facilitate the ability of the children to communicate with the other parent by telephone or email.
Objects and principles
I am required to commence by considering the objects and principles as set out in section 60B of the Family Law Act and which I incorporate herein:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The parties agree that the arrangements presently in place for the care of their children (save and except for the practical difficulties raised by Mr Poole and which I will turn to shortly) achieve the objects of the legislation. That is not to say that any presumption thus arises in favour of a preservation of that “status quo”. Such an approach, whether on an interim or final basis, has been expressly disavowed by the Full Court (see for example Goode & Goode (2006) FLC 93-286 and Marvel [2010] FamCAFC 101) and would be contrary to the proper application of the legislation to the facts and circumstances of each case.
Past care arrangements are of relevance in assessing that which has or might be suggested to have met the children’s needs and interests, that which has been practicable. Such consideration is of an illustrative or demonstrative basis only.
The extent to which each party adopts, embraces and proposes a regime of substantial and significant time (each is a party seeking an arrangement in that category) is, no doubt and in no small part, reflective of their lived experience of the arrangement that has applied for some two years to date and which the children have become familiar with.
To the extent that there is variance between the model of substantial and significant time proposed by each of the parents (each proposing a four night alternate weekend) there is nothing found within the objects and principles which would be better served by one proposal over the other.
Child’s best interests paramount
The Court is reminded by section 60CA that in all that is done the child’s best interests are the paramount consideration. The legitimate arrangements of parents are relevant (see AMS & AIF (1999) CLR 160) but subservient to the children’s best interests when in conflict.
Presumption of equal shared parental responsibility
I must then turn to section 61DA and determine whether the presumption of equal shared responsibility applies and, if so, consider whether it is rebutted.
Each of the parties proposes and seeks an Order for equal shared parental responsibility. That is of some significance and relevance, however, not determinative of the issue. The Court must, irrespective of the consent of the parties, determine for itself that an Order for equal shared parental responsibility is appropriate.
The proposals of the parties are the parameters, so to speak, of the judiciable controversy (see U & U [2002] FLC 93-112) and the Court would be loathe, in circumstances such as these, where each parent is an entirely capable, competent and appropriate parent, to make an Order contrary to that which they each embrace, adopt and accept is in and best meets their children’s interests. It has not been raised with the parties as I have not contemplated such an Order and to do so now would deny due process to the parties.
There is nothing in the evidence nor any legislative consideration (to which I will now turn) which would suggest any departure from the arrangement which each party proposes and, accordingly, an Order will be made by me in due course for equal shared parental responsibility.
Section 65DAA
It is conceded in the case of the husband that an Order for equal time is not practicable. That is so notwithstanding that the Orders sought in his Response filed 19 April 2013 are for an equal time arrangement. As the evidence now stands it is clear that such an arrangement would replicate that which applies to the children of Ms P’s relationship.
The husband concedes through his Counsel (paragraph 22 of the Summary of submissions) that “…the respondent has chosen not to seek an equal time arrangement as such an arrangement is not reasonably practicable.. the father lacks the “current and future capacity” to implement such an arrangement as a result of his work commitments”. I accept that submission.
Each party does seek a substantial and significant time arrangement (as defined in section 65DAA(3)). I propose to consider the parties’ competing proposals and all time arrangements at large by reference to section 60CC and incorporating therein through section 60CC(3)(m) a consideration of reasonable practicality set out in section 65DAA(5).
Section 60CC
I must commence with the primary considerations being:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Neither party raises any issue with respect to the need to protect the children from physical or psychological harm and thus one is left with the sole consideration of the children’s meaningful relationship with each parent.
The position of Ms Poole is that the present arrangement should continue. This position is advanced on a number of bases not the least of which is the fact that it represents a settled, established and demonstrated as workable arrangement. The children are content with it and settled into it and, indeed, the children oppose any change to it.
The father for his part submits through this Counsel (page 23 of the written submissions):
…the Respondent’s proposal is the best way to support the meaningful relationship between the children and their father going into the future (s 60CC(2)(a) and see, e.g., the judgment of Byrant CJ, Faulks DCJ and Boland J in McCall & Clark (2009) 41 Fam LR 483). The Respondent’s work commitments are such that the only way an order for substantial and significant time can be made is if the Respondent’s proposal is accorded with. The current arrangement cannot continue as spoken of in the Respondent’s affidavit filed 14 February 2014 as it is not reasonable practicable.
The fulcrum upon which the Respondent’s case balances is practicality.
It is to be noted that the dispute between the parties with respect to parenting is of very limited compass. As already observed each proposes a four night alternate weekend arrangement and the parties are at odds only as to whether that four night block should start from after school Thursday or Wednesday and conclude 5pm Sunday (as the father proposes) or commence from after school Friday and conclude before school Tuesday (as is presently occurring).
The essential concern raised in the father’s case is that as a consequence of his employment (commencing work at 4am weekdays) and thus his reliance on his partner to transport the children to school that there are grave practical difficulties in the existing arrangement (non-Court ordered) continuing.
The father’s evidence is that the present alternate weekend corresponds with the portion of the “week about” care arrangement which is practiced with respect to his partner’s children such that his partner is then responsible for transporting 5 children to different schools each Monday and Tuesday morning. This is suggested to require significant travel and, in the case of the youngest of Ms P’s children, being left at school 20 minutes before supervision commences.
The father’s proposal, if acceded to, would change the commencement time of the weekend period and such that the children would return to their mother on Sunday evening and simultaneous with Ms P’s children coming into her care.
Mr Poole gives evidence (although significantly his partner does not) that this travel is difficult, onerous and, significantly, that whilst approaches have been made to Ms P’s ex-partner to change the week about arrangement (including by simply reversing the weeks that the children are in the Poole/P household) that these entreaties have been rejected.
Ms Poole for her part submits that she has long standing arrangements in place both socially and as regards her employment that make any change to the arrangement equally difficult from her perspective and equally if not more disadvantageous to the children (particularly as regards social commitments).
It is important to note that both parties agree that the children enjoy an excellent relationship with each parent and that each parent is a committed parent who provides an excellent standard of emotional and physical care to these children. That is so notwithstanding the views that are held by one or the other (and principally Ms Poole) regarding the other parent as a former partner.
I am satisfied that either arrangement as proposed by Mr and Ms Poole respectively would meet the children’s need to have, continue and benefit from a meaningful relationship with the other parent. In that regard I am satisfied that the proposals are equally capable of meeting the children’s needs.
I thus turn to the additional considerations and address each.
Views
The children’s views are not addressed in the parties’ evidence at all. The only evidence with respect to the children’s views is that set out in the Child Inclusive Child Dispute Conference Memorandum 30 July 2013.
In report of the children’s comments the Family Consultant has set out the following:
·[X], who is 13, was adamant that she wanted the situation to remain as it stands.
·…[X] loves her father and wished that “he stood up for me”.
·[Y], who is 11, is a strong personality and also wished for “the same as [X]”.
The father, through his Counsel submits that the desire expressed by [X], to have the situation “remain as it stands”, should be read in the context of the then dispute between the parties being the application by Mr Poole to have the children live in an equal time arrangement.
It is also submitted on the part of Mr Poole that “there is no magic in the Family Report” (relying upon the Full Court’s decision in Hall (1979) FLC 90-713).
I do not cavil with the above proposition as to the place and role of the Memorandum. The Memorandum, whilst important evidence, is nothing more than evidence in the case. It is subject to being vigorously tested, following such testing remaining intact as to both the factual substratum upon which opinion is based and the opinions themselves and carrying forth some persuasion as expert evidence.
The Child Inclusive Child Dispute Conference Memorandum prepared in this case is not a Family Report. Even if it were placed in the same position of a Family Report I am satisfied the same comments would apply. However, the Child Inclusive Child Dispute Conference Memorandum does represent the only evidence before the Court as to the children’s views.
Counsel for the father makes reference to and relies upon Harrison & Woollard (1995) FLC 92-598 and Re R Children’s Wishes [2000] FamCA 43 as the basis for not placing significant or determinative weight upon the views expressed by the children to the Family Consultant. I accept that submission. The children’s views in this case are not dispositive. However, the children have expressed a view that things remain as they are. That may, as is submitted in Mr Poole’s case, be viewed within the context of Mr Poole’s then application (although I have no evidence before me to suggest the children were aware of the application or proposed changes thereto) or may be viewed in a broader context as simply the children being settled in, content with and desirous of no change to the arrangements then in place and which had, at that time, been in place for some 15 months (and have been in place for a further 7 months since).
The effect of change is a separate and specific factor to be considered under the legislation. However, I observe at this point that the children’s desire to not see any change in arrangements is natural but not determinative.
Change has, in modern culture, developed a “bad reputation”. Whether due to the pace and frequency of change (as discussed by Alvin Toffler[1]) or a fear of the uncertain as opposed to the known, change is often viewed and submitted to be inherently negative. Nothing could be further from the truth. Change can be both positive and negative.
[1] See his 1970 book “Future Shock.”
A person who is being beaten most urgently desires change and that change is inherently positive.
A person who is in well paid employment certainly desires that no change occurs and a change, such as the termination of that employment, is most assuredly negative.
In this case the primary motivation urged for change is one based upon suggested impracticality and is contrary to the children’s perceptions and expressed views. To that extent I am satisfied the children’s views are supportive of the mother’s proposals (although far from the most significant factor in the case).
Nature of the relationship between the children and other persons
It is conceded by each parent that the children enjoy an excellent relationship with each other and with each parent.
The children’s relationship with Mr Poole’s partner, Ms P, is somewhat put in issue through the Child Inclusive Child Dispute Memorandum. Therein the children and, in particular, [X] are suggested to have some issues in their relationship with Ms P. Notwithstanding this, however, Ms Poole indicates her support for both the children maintaining a relationship with Ms P and with Ms P’s children.
Mr Poole is silent on the issues of the children’s relationship with his partner and the other children who reside within his household. He simply does not comment upon it at all. The best evidence that is available is, again, that contained within the Child Inclusive Child Dispute Conference Memorandum comprising one line (based upon comment by whom it is unclear) that “ all the children have positive relationships according to the children”.
The above is relevant, if one accepts that Ms P’s children and the Poole children enjoy a good and developing relationship with each other, as:
a)Ms Poole’s proposal (to continue the existing informal arrangement) will see those children spending Sunday evening until Tuesday morning with each other.
b)Mr Poole’s proposal will see the children spending no time with each other at all, at least not during school terms.
The extent to which each parent has taken or failed to take the opportunity to participate in decision making, spending time or communicating with the children
Neither parent has nor does either parent raise it as an issue.
The extent of each parents’ fulfilment of their obligation to maintain the children
A child support assessment has been in place since shortly after the separation of the parties. Payments in accordance with that assessment are made by Mr Poole and are up to date.
Some criticism is raised by Ms Poole on the basis that for a period of some months following separation she suggests that Mr Poole did not attend to payment of any child support or provide any financial assistance to her. Mr Poole denies this and suggests that a period of perhaps two weeks had passed when he did not make payments and when he was anxious to have the child support agency become involved in assessing and collecting child support.
Irrespective of where the truth may lie with respect to the above dispute (and I am satisfied it is not relevant to determinate so far as for these proceedings) clearly child support has been assessed and paid for some years.
The likely effect of change including separation from either parent or other child
This is a significant limb of Ms Poole’s case (see relationships above). There would appear some force to that position.
Mr Poole asserts that in addition to the practical difficulties that arise in his reliance upon his partner to transport five children to school on Monday and Tuesday mornings that this also creates significant difficulties within the household including:
a)Creating tensions which cause disputes in the home.
b)Creating difficulties in the relationship between Mr Poole and Ms P as a consequence of the above difficulties and disputes and general lack of calm.
On the above bases each parent suggests that there is counter veiling benefit and detriment to changing the existing arrangements albeit that the change proposed is not significant.
On balance I am satisfied that the detriments to the children, particularly as regards any potential diminution in their relationship with their step-siblings, Ms P’s children, would outweigh the suggested detriments of the present arrangement continuing. This is particularly so as the father has chosen not to call evidence from his partner either corroborative of his allegations or to address the extent to which any step has been taken, could be taken or if taken has been rejected, in varying arrangements for Ms P’s children to address the difficulties complained of.
Even absent the above evidence I am not satisfied that the difficulties that are raised by Mr Poole are insurmountable or detrimental to the children of this relationship. Mr Poole relies upon the suggested onerous travel undertaken by Ms P each alternate Monday and Tuesday in transporting five children to school and particularly the fact that the youngest of Ms P’s children is left unattended for a period of time. Whilst I am not insensitive to those suggested difficulties there is no direct evidence (from Ms P) of those difficulties and nor is the primary focus of this determination upon the welfare of Ms P’s children but upon the children of this relationship.
Practical difficulty and expense
I will deal with this as part of section 65DAA(5).
Capacity
I am satisfied that each of the parents and Ms P have all requisite capacities to meet the physical, emotional and intellectual needs of these children at all times.
Sex, maturity, lifestyle and background of the children
These children have expressed a clear view oppositional to change in their current arrangements. They are children who will shortly turn 14 and 12 years of age respectively. I am satisfied that some weight (although far less than is urged by Ms Poole and falling far short of determinative) should be afforded to those views in light of the children’s age and apparent maturity. Both parties agree that [X] and [Y] are capable, articulate young women.
I am also satisfied that at the ages of these children, adolescents or about to be, that their “social capital”, there relationships with peers and extended networks, are of some significance. Arrangements with respect to those networks have been in place for some little time and I am conscious that the children’s expressed desire to not effect change in arrangements should also take into account those commitments.
These are children for whom any Orders made by this Court will, particularly as regards [X], have only some years of relevance.
Whilst the Court has jurisdiction to make Orders which regulate parenting arrangements until children are 18 years of age it is clear that these young children, particularly if they are as intelligent, articulate and well developed in their own self-image as their parents describe, will in only some little time, become tired of arrangements that do not meet their perceived needs and will reject them.
The above is of some particular relevance as regards the children’s meaningful relationship with each parent and, in particular, their relationship with Mr Poole. If the time arrangements used as the basis for their expression and enjoyment of their relationship with Mr Poole are interfered with against their will and particularly to meet the convenience of Mr Poole or Ms P (of whom the children have been less than glowing in their description as reported in the Child Inclusive Child Dispute Conference Memorandum) I am conscious that this might have some impact upon their relationship with their father.
This factor obviates against significant change in present arrangements.
Aboriginality
Neither of these parents nor these children identify as being Aboriginal or Torres Strait Islander.
The attitude to the child and the responsibilities of parenthood demonstrated by each parent
Each parent raises some minor criticisms with respect to these matters. However, the evidence is scant and is far from significant in this determination.
Each of these parents has, within the confines of pursing employment (a necessity for them) been available to meet these children’s needs from birth and each should be congratulated for not only the attitude they have demonstrated but the action they have taken to put into effect that positive attitude in meeting their parenting responsibilities.
Family violence
This is not raised as a relevant consideration.
Family violence orders
There are none.
Whether it is preferable to make the order that would least likely lead to the institution of future proceedings
Mr Poole has indicated that if the arrangement is not changed that he can readily foresee the time when it will be necessary for his time to further reduce and such that he becomes an “alternate weekend dad”.
In the jurisprudence of relocation cases this is often referred to as a “loaded gun” approach. Such terminology is preferable to the present circumstances. It suggests that if the relief sought is not granted that further inevitable and undesirable consequences will follow and for which the Court is responsible.
The position of Mr Poole as raised during his cross examination (but not addressed in his evidence in chief) is that the practical difficulties are such that his partner may soon refuse to assist or find it impossible to do so and thus the children will need to return to their mother’s care on a Sunday evening so that she can be responsible for taking them to school on Mondays and Tuesdays in his place.
These are parents who each seek and each agrees that there should be equal shared parental responsibility. There are a myriad of alternate arrangements available to Mr Poole should such difficulties arise other than to terminate and significantly reduce the time that he spends with these young women. The evidence as to steps taken, a consideration of same or any other action or consideration undertaken by Mr Poole is absent and I am satisfied has not been adequately addressed by him.
I accept that the difficulties that Mr Poole describes have some basis in reality. However, there are ways in which they could be addressed including, as part of an exercise of equal shared parental responsibility, Mr Poole making some other arrangement in his life, engaging the assistance of others or further pursuing minor variations to the arrangements which apply to his partner’s children such as to obviate any difficulties which he suggests arise.
To the extent that Mr Poole does not desire to pursue the above options they are entirely a matter for him. However, I am also conscious (as addressed above) that these children have developed a good relationship, over quite some years, with the children of Ms P and I am conscious that whilst Mr Poole describes that the presence of all five children in the household at the same time creates tensions and difficulties that they are relationships which benefit [X] and [Y].
Other facts and circumstances
I incorporate herein the provisions of section 65DAA(5) of the Act and I propose to address each of the factors set out in that section individually.
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The distance between the parties
These parties live on opposite sides of the Canberra CBD. Neither asserts that the distance between their respective homes, by and of itself, is determinative of the issues in these proceedings or preference of one parties’ proposal over the other let alone such as would suggest reasonable impracticality in either arrangement.
The parties’ current and future capacity to implement an arrangement
In implementing any arrangement for time that involves mid-week time (and the children being taken to school in particular) Mr Poole is dependent upon his partner.
Mr Poole’s partner is not before the Court and has not participated in any process (including the Child Inclusive Child Dispute Conference it would seem).
On the evidence that is available it is clear that the arrangement has been “made to work” for some little time. It is suggested now (or in reality since Mr Poole's Response was filed April 2013) that the arrangement simply cannot continue. However it has.
I am not satisfied that the matters alluded to in Mr Poole’s evidence are of such compelling or pressing nature as to suggest that there is an incapacity in implementing the present arrangement which applies for the children’s time with their father. Similarly, there is no incapacity to the arrangement being implemented if the arrangement is changed as Mr Poole seeks.
The parents’ current and future capacity to communicate and resolve difficulties
Whilst it is tempting to assume that any parties before the Court and calling upon the Court to determine arrangements for them have a deficiency in their capacity to communicate, this is overly simplistic.
These parents are both intelligent and articulate people. There is clearly no love lost between them and particularly as evidenced by the material in the concluding paragraphs of Mr Poole's Affidavit referencing a website or blog maintained by Ms Poole and whilst not naming either party (and thus not committing an offence by reference to section 121 of the Family Law Act) clearly expressing a degree of resentment if not anger towards Mr Poole and his perceived past misdeeds.
At the commencement of submissions in Ms Poole’s case I had sought to be advised when that website might be taken down and was advised that it would be done forthwith. On that basis I do not propose to make any Order with respect to its removal, however, clearly it is less than helpful and one would hope that the children of these parties are not cognisant of it.
The above issues aside, these parents have been able to communicate, cooperate and make arrangements for their children’s wellbeing (and make decisions relevant to their children’s wellbeing) since their separation.
Mr Poole indicates in his evidence (at least during cross examination) that any agreements in the past have largely been as a function of his concession and capitulation rather than compromise. Whether that is so or not cannot be determined. However, the arrangements that have been made have been long lasting and functioning and thus would appear to reflect sensible, cooperative, co-parenting decisions.
The capacity of the parents to communicate or not communicate does not significantly impact upon which proposal of which party finds favour with the Court. However, it does suggest that any ongoing difficulties that arise with respect to the children (whether their transport to school or otherwise) are matters which can be addressed between the parents.
Impact of the arrangement on the children
As indicated above I am satisfied that the detriment to the children of any significant or substantial change in present arrangements outweighs any benefit that might be perceived or experienced by them if arrangements were changed.
I am satisfied that the benefits that would flow from any change to arrangements would largely benefit Mr Poole and his partner and the arrangement of the household (including arrangements for Ms P’s children).
Such other matters as the court considers relevant
I am particularly concerned that:
a)
The evidence filed by the parties with respect to the parenting arrangements is so deficient. In the case of
Mr Poole his case is entirely absent any evidence from his partner who is fundamental (particularly as regards suggested implacability) to his case. The Court cannot make decisions based on assumption or based upon evidence which is not before the Court but which is suggested would be corroborative. Indeed, the opposite is true (see for example Jones & Dunkel (1959) 101 CLR 298).
b)The parties have not attended Family Dispute Resolution. Whilst I have made clear at the outset of these Reasons that I do not propose to strike out the application of Mr Poole for want of jurisdiction (indeed if it was struck out there would be nothing left before the Court as Ms Poole has never filed a Response or Reply to that application) I am satisfied that the absence of Family Dispute Resolution has some relevance to the determination to be made by me being, if nothing else, to suggest an absence of complaint or action or response thereto by Mr Poole prior to these proceedings being commenced by Ms Poole and the raising by him of a parenting issue in Response to the Application by Ms Poole which sought only property relief;
c)Ms Poole has never filed a Response. Without a Response there is no judiciable controversy. The only indication the Court has of Orders proposed by Ms Poole is her Counsel’s case outline document. That document does not and cannot have the status of an application to the Court sufficient to invoke the Court’s jurisdiction and with it coercive power. Further, resources such as Child Inclusive Child Dispute Conferences and hearing dates have been allocated to the matter without that basic requirement being met.
Summary and conclusion
Having regard to all of the above I am satisfied that the arrangement that will best meet the children’s needs at this time and which will be reasonably practical is for Orders replicating arrangements with which the children are familiar, under which the parties and the children have operated now for in excess of two years and are in accordance with the Orders proposed by Ms Poole.
Property adjustment
This case is one of the growing body of cases wherein the asset position of the parties, if superannuation is disregarded, is negative.
I accept that the Court has jurisdiction to deal with proceedings in these circumstances. I am given some particular comfort in this regard as Counsel for Mr Poole has submitted (page 13 of the Written submissions) that:
…the court can rest assured that it has the power to make property orders pursuant to section 79 of the Act even if it finds that the liabilities of the parties exceeds their assets such that the non-superannuation matrimonial asset pool is a negative figure (Trustee of the property of G Lemnos & Lemnos [2009] FamCAFC 20 per Coleman, Thackray and Ryan JJ).
I am also conscious of having dealt with and addressed the issue in earlier proceedings and including a consideration of Trustee of the property of G Lemnos & Lemnos [2009] FamCAFC 20.
Thus I am satisfied that the Court has jurisdiction.
Some significant attention has been devoted by Mr Poole's Counsel to the impact of the High Court’s decision in Stanford & Stanford [2012] HCA 52 upon the exercise of jurisdiction by the Court and in particular in three respects, namely:
a)Whether a “threshold finding” must be made before section 79 jurisdiction is exercised;
b)Whether there is a “fourth step” of reviewing whether proposed Orders do justice and equity before Orders are pronounced and occurring after a consideration of section 79(4) and section 75(2); and
c)Whether there is any such thing as “notional add backs” post Stanford and the Full Court’s subsequent decision of Bevan.
I propose to deal with each of those matters briefly before turning to the legislative pathway.
Threshold determinations
Lengthy submissions were put by Counsel for Mr Poole as to whether a threshold existed or not.
The following passages from Stanford at 86, 641 (paragraphs 37-40 of the judgment of French CJ, Hayne, Kiefel And Bell JJ) were particularly relied upon:
First it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interest of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
Whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down"[28]. To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
I am not satisfied (although I accept it is a matter for the Court of Appeal to determine authoratively) that a threshold test exists whereby the Court must determine the present legal and equitable interest of the parties and, having identified those interests, determine without reference to or consideration of any other fact or circumstance, that any adjustment of those interests would be unjust and inequitable. Indeed, that would appear somewhat counterintuitive.
To be in a position to determine, (before addressing section 79(4) and section 75(2)), whether it is appropriate for an Order adjusting interests to be made would appear, to my mind, to be nonsensical and unsupported by the legislation.
To determine whether any adjustment (or change) of legal and beneficial interests should occur is separate and distinct to ascertaining what those interests presently are. One could not determine whether that present ownership reflected justice and equity or supported any adjustment (or change) without considering the very factors that the Act sets out in sections 79(4) and 75(2).
One could no more “assume” that it was unjust and inequitable to alter interests without a consideration of the facts and circumstances of the case than to assume that it was just and equitable (the very point made by the majority at paragraph 39):
…whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist.
The majority judgment is clear at paragraph 37:
…it is necessary to begin consideration (emphasis added) of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property
I am further of the above view noting the comments of the Full Court in C & C (2006) FLC 93-269 (and by numerous first instance judgments thereafter) that the pool of property available for division between the parties should, absent circumstances compelling a contrary position, be assessed at the date of trial and I propose to do so and without embarking upon notional add backs.
The pool of property
Each of the parties has submitted a proposed schedule of assets and liabilities and these are each set out below as follows:
Wife’s schedule of assets and liabilities
ASSETS
WIFE’S ATTRIBUTED VALUE
2002 Holden TS Astra City Motor Vehicle
(Automatic) (Retained by Husband)
$2,750 (Red Book)
1998 SE seven seater Holden Jackaroo Motor Vehicle (Automatic) (Retained by Wife)
$4,750.00 (Red Book)
2010 Ford Mondeo MC Motor Vehicle (Automatic) (Retained by Wife) (1)
$12,500.00 (purchase price)
Wife’s Savings with [P] Bank
$350.00
Husband’s Savings
$289.00
Wife’s Furniture and Furnishings
$10,000.00 (e)
Husband’s Furniture and Furnishings
$12,000.00 (e)
TOTAL
$46,350.00
(1) Post Separation Acquisition.
2.0 Liabilities
LIABILITIES
WIFES’S ATTRIBUTED VALUE
Husband’s NAB Loan (1)
$3,635.41
Husband’s GE Money Loan (2)
$12,000.00
Wife’s Aussie Home Loan (5)
$28,000.00
Wife’s ANZ Bank Visa Card (4)
$3,500.00
Husband’s NAB Visa Card (3)
$12,000.00
Joint [P] Credit Union Loan
$19,273.97
Husband’s Other Debts (6)
$6,900.00
Total Liabilities
$85,309.38
TOTAL NET ASSETS
-$38,959.38
(1) Per Husband’s Affidavit filed on 14 February 2014
(2) Acquired post separation
(3) Acquired post separation
(4) Accumulated post separation
(5) Acquired post separation – pre-existing GE debt of $9092 paid from borrowings
(6) Acquired post separation
3.0 Superannuation Entitlements
WIFE’S SUPERANNUATION ENTITLEMENTS
WIFE’S ATTRIBUTED VALUE
[P] Superannuation Scheme as at 30 June 2013 per valuation.
$186,014.00
[E] Superannuation Scheme as at 30 June 2013
$2,783.00
[O] Superannuation Scheme as at 30 June 2013
$1,486.00
TOTAL
$190,283.00
HUSBAND’S SUPERANNUATION ENTITLEMENTS (per the Financial Statement)
WIFE’S ATTRIBUTED VALUE
ARF
150,949.00
TOTAL
$150,949.00
Husband’s schedule of assets and liabilities
Matrimonial Asset Pool Excluding Superannuation
Asset
Ownership
Applicant’s value
Respondent’s value
“Add-back” for savings retained by the Applicant at the date of separation as a result of her [employment] in [S]
A
Not known
$30,000
Holden Astra motor car
R
$5,000
Not known and not applicable
Holden Jackaroo motor car
A
$5,500
Not known and not applicable
Ford Laser motor car
A
$3,000
Not known and not applicable
Holden Mondeo motor car
A
$12,500
Not known and not applicable
Respondent’s savings in bank accounts (NAB and Beyond Bank Australia combined)
R
Not known
$289 but not applicable
Applicant’s saving in bank account ([P] Bank)
A
$350
$350 but not applicable
Applicant’s furniture and furnishings
A
$10,000
Not known and not applicable
Respondent’s furniture and furnishings
R
$10,000
Not known and not applicable
Total Assets
$46,350
$30,000
Liability
Ownership
NAB loan
R
Estimate $20,000
$3635.41
[P] Credit Union loan
Joint
$19, 273.97
$19, 273.97
GE Money loan
R
Unknown
Not applicable
Aussie Home Loans loan
A
$28,000
Not known and not applicable
ANZ Visa card loan
A
$3,500
Not known and not applicable
Total liabilities
$70,773.97
$22,909.38
Net Assets Excluding Superannuation
-$24,423.97
$7,090.62
Superannuation Assets
Superannuation Account
Ownership
Applicant’s value
Respondent’s value
Applicant’s [P] Superannuation
A
$215,111.00
$186,013.72
Respondent’s [A] Super
R
Not known
$150,949.33
Total Superannuation Assets
$215,111.00 + Respondent’s superannuation
$336,963.05
Matrimonial Asset Pool Including Superannuation
Applicant’s value
Respondent’s value
Net Assets
-24,423.97
7,090.62
Total Superannuation Assets
215,111.00 + Respondent’s superannuation
336,963.05
Net Assets Including Superannuation
$190,687.03 + Respondent’s Superannuation
$344,053.67
The major differences between the schedules prepared by each of the parties arise from dispute as to the value of minor tangible assets (if they might be so described) particularly motor vehicles and furniture and contents.
Ms Poole has included values based upon her best estimates informed, in the case of motor vehicles, by red book appraisals and, in the case of furniture and contents, by simply guessing. Mr Poole has proceeded on the same basis.
I do not propose to include the items the value of which are in dispute and thus the pool of property would comprise:
a)Holden Astra motor vehicle not known.
b)Holden Jackeroo motor vehicle not known.
c)Ford Mondeo motor vehicle not known.
d)Wife’s present savings $350.
e)Husband’s present saving $289.
_________________________________________________________
Total $639.
Liabilities
The liabilities are as follows:
a)Husband’s NAB loan -$3,635.
b)[P] Credit Union loan in joint names -$19,274.
c)Aussie Home loan in Ms Poole’s name -$28,000.
d)Wife’s ANZ bank card -$3,500.
e)Husband’s NAB Visa card -$12,000.
f)Husband’s GE Money loan -$12,000.
_________________________________________________________
Total -$78,409.
Superannuation
The superannuation of the parties is as follows:
a)The wife’s [P] Superannuation Scheme $215,111.
b)Husband’s [R] Fund $150,949.
_________________________________________________________
Total $366,060.
Total Pool $288,290
On the basis of the present ownership or responsibility for the above the parties each have the following:
Ms Poole
(a)Bank accounts $350
(b)Debt
(i)the [P] Credit Union -$19,274
(ii)Aussie Home loans -$28,000
(iii)Visa -$3,500
(c)Superannuation $215,111
Net $164,687[9]
[9] The wife retains $350 in savings, $50,774 in debt and superannuation entitlements of $215,111.
Mr Poole
a) Savings $289
b) Debt
(i)the NAB loan -$3,635
(ii)GE Money loan -$12,000
(iii)NAB Visa card -$12,000
c) Superannuation $150,949
Net $123,603[10]
[10] The husband retains $289 in savings, $27,635 in debts and superannuation entitlements of $150,949.
Parties’ proposals
The parties’ proposal are as follows:
The Applicant seeks the following property orders
1. That the Applicant be declared the sole legal and beneficial owner of all that right, title and interest in the following property:
a. The 1998 Holden Jackaroo motor vehicle in the possession of the Applicant.
b. The 2010 Holden Mondeo in the possession of the Applicant.
2. That the Respondent be declared the sole legal and beneficial owner of all that right, title and interest in the 2002 Holden Astra motor vehicle in the possession of the Respondent.
3. That unless otherwise specified in these orders and except for the purpose of enforcing the payment of any money due under these or any other subsequent orders;
a. Each party be solely entitled to the exclusion of the other party to all property and chattels of what so even (sic) nature and kind including choses in action in the possession of such party as at the date of this order.
b. Moneys standing to the credit of a party in any bank accounts shall become the property of that party.
c. Each party be declared the sole legal and beneficial owner of the superannuation entitlement held in their own name and each party forgoes any claim in respect of the other party’s superannuation entitlements.
d. All insurance policies shall become the sole property of the owner of the policy.
4. Within 28 days of the date of this Order the Respondent pay such monies necessary to discharge the Joint [P] Credit Union debt [omitted] in the sum of approximately $19,574.000
5. Unless otherwise specified in these Orders, each party be solely responsible for any debt or liability in their name as of the date of these Orders and will indemnify the other and keep them indemnified with respect to those liabilities including but not limited to any line of credit, personal loan, credit card or taxation liability.
6. In default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the family Court of Australia in Canberra be appointed pursuant to Section 106A to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.
The Respondent seeks the following property orders
1. That the applicant pay and indemnify the respondent in relation to all monies owed to the [P] Credit Union with respect to a joint loan in the names of the parties.
2. The applicant pay to the respondent, within 28 days, the amount of $7,180.75.
3. The respondent pay and indemnify the applicant against liability for all amounts owed on a personal loan in his name to the National Australia Bank.
4.
a. In accordance with section 90MT(1)(a) of the Family Law Act 1975 ("the Act"), whenever a splittable payment within the meaning of 90ME of the Act becomes available to or on behalf of Ms Poole (from her interest in the [P] Superannuation Scheme ("the [P]"), Mr Poole is entitled to be paid by the [omitted] Superannuation Corporation, the Trustee of the [P], the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $17,532.00 and there is a corresponding reduction in the entitlement of Ms Poole in the entitlement that Ms Poole would have had but for these Orders.
b. The operative time for Order a hereof is 30 June 2013.
IT IS NOTED:
The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001, which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
5. Otherwise, as against the respondent, the applicant is declared to be the sole owner of:
a. Any motor vehicle in her possession;
b. All goods, chattels and personal property in her possession;
c. Any money in any account in her name with any bank or any other financial institution.
6. Otherwise, as against the applicant, the respondent is declared to be the sole owner of:
a. Any motor vehicle in his possession;
b. His superannuation entitlements;
c. All goods, chattels and personal property in his possession;
d. Any money in any account in his name with any bank or any other financial institution.
Present position versus proposals
On each party retaining the assets or liabilities and superannuation funds in their respective names the present reality is that 57 per cent of the total pool is held by Ms Poole and 43 per cent by Mr Poole.
The effect of Ms Poole’s proposal is that she would receive or retain the benefit of 64 per cent of the total pool (assets liabilities and superannuation) and Mr Poole 36 per cent.[11]
[11] The wife will retain her savings of $350, the debt as above but less the [P] Credit Union debt of $19,274, together with her superannuation entitlement of $215,111. The husband will retain the above but will receive responsibility for payment of the debt of $19,274.
The effect of Mr Poole’s Orders is that the wife would receive or retain 45 per cent of the total pool and Mr Poole would receive 55 per cent of the total pool.[12]
[12] The wife will retain what she presently holds save that she would be required to make a cash payment to the husband of $7,181 and transfer to the husband by superannuation splitting order $17,532 ($34,713 in total). The husband would retain what he presently has and would receive these payments.
Contributions
The husband urges that the Court would find that the parties’ contributions are equal.
Ms Poole urges that the Court would find that contributions favour her and on the basis that:
a)The husband introduced significant debt to the relationship which was paid out during the relationship.
b)The wife has retained primary responsibility for the care of the children since separation (albeit with payment of child support as assessed).
c)The wife has continued to be responsible for debt over and beyond that of the husband since separation.
With respect to the debt that the wife has retained, the wife asserts two significant portions thereof effectively represent that incurred during the relationship and being:
a)The entirety of the [P] Credit Union debt; and
b)That portion of the Aussie Home loans debt which represents the refinance of debt which had existed during the relationship (particularly the GE Finance debt which had paid out a lease on a motor vehicle as well as other expenses).
During the relationship both parties were primarily engaged in employment and supported and assisted each other in doing so.
Having regard to the contributions made by the parties throughout their relationship and each of the matters that the parties have submitted, I am satisfied that contributions favour the wife somewhat. This is particularly so having regard to:
a)The introduction of debt by the husband which was wholly paid out during the relationship.
b)The Robb & Robb contribution each asserts with respect to either payment of child support for or care provided to children of prior relationships (which I am satisfied renders the factor neutral as regards either party).
c)The retention of greater debt at separation by the wife.
d)To the extent that the husband has retained responsibility for a significant debt (the NAB debt) its aetiology, if it might so be described, is less certain as is the benefit to the parties of its creation.
e)To the extent that Mr Poole has retained the NAB debt and serviced it since separation he has also been in a superior financial position to do so having less significant care of the children of the relationship (noting the ages of these children and thus, by reference to the Lee & Lovering scales the increasing costs that have applied and will continue to apply to their care) and having had unknown income and/or resources of his partner (she having filed no evidence and their being no reference to her financial position in any of the material filed by Mr Poole, save to disclose her existence as a partner and an allegation as to her average weekly income).
f)
As a consequence of the primacy of care retained by
Ms Poole since separation I am satisfied this has had some impact (although far from significant and impossible to quantify) upon her capacity to earn income although clearly based upon her Financial Statement and at the present time no significant reduction.
Overall I am satisfied that contributions favour Ms Poole and in a range of 55-60 per cent. I propose to accept the median figure of this range and assess contributions as 57.5 per cent in Ms Poole’s favour and 42.5 per cent in Mr Poole’s favour.
Section 75(2) adjustments
In Mr Poole’s case it is submitted that no adjustment pursuant to section 75(2) of the Act is warranted and that the parties are in a position of relative equality and should remain so. This is so notwithstanding that the financial consequence of the Orders proposed by Mr Poole, by reference to the above pool, is an unequal distribution and in his favour.
Ms Poole urges through her Counsel that some adjustment would be made in her favour having regard to relevant section 75(2) factors and, accordingly, I propose to consider each.
Age and state of health of the parties
There is nothing raised with respect to any dramatic disparity in the ages and state of health of the parties.
Income property and financial resources of the parties including capacity for employment
Both parties are clearly able to participate in paid employment and do so at present.
On the basis of the parties’ Financial Statements (which I accept as largely accurate and as regards income certainly so) Ms Poole is receiving an income by way of salary and wages of $1,519 together with a composite allowance of $334 (being a total of $1,853).
Mr Poole for his part presently receives an income by way of salary and wages of $1,923.
There is nothing of any great significance as regards the present income and earning capacity of the parties.
There is no evidence to suggest any presently known impediment or likely impediment to this income earning capacity being exercised.
Care and control of children
Since separation and without controversy since February 2012 the children have lived primarily in the care of Ms Poole and she has thus been responsible for their care for 10 days of each 14.
Ms Poole has clearly received child support as assessed. However:
a)This is a contribution towards the children’s costs and does not represent an equalising of costs as between the parties. Accordingly, I accept that Ms Poole has met the majority of the children’s costs although I do not seek to quantify same either in total or the portion met by Ms Poole.
b)
Mr Poole has sought to include as Ms Poole’s income that which he has paid as child support. I do not accept that submission. The child support that is paid by Mr Poole is a contribution towards the costs incurred by Ms Poole in maintaining the children within her household (and accepting that he also incurs cost in maintaining the children within his household albeit for a lesser period of time). It does not represent on any test or standard “income” of
Ms Poole.
This factor clearly favours Ms Poole.
Commitments of each party to support themselves and any children
I have evidence as to the party’s commitments to support themselves and the children of the relationship.
Mr Poole clearly lives in a relationship and whilst Mr Poole gives an estimate of her average weekly income his partner gives no evidence to the Court. There is no evidence as to the child support arrangements or other commitments that are either met or contributed to by Mr Poole.
Mr Poole, during cross examination, sought to assert some degree of financial delineation between himself and his partner and to the extent that he alleges, in his Financial Statement, that his partner is a creditor (albeit for a modest sum) it having been necessary for him to borrow monies from her to meet an airfare to return from a South American holiday.
It is to be noted in the above context that whilst the Court is urged to “notionally add back” the totality of savings held by Ms Poole at separation and which had been expended, in some small part, in meeting a modest four day domestic holiday, Mr Poole has undertaken overseas travel which is not otherwise referred to in his evidence.
The financial arrangements within Mr Poole’s household and as between he and his partner are entirely unknown to the Court and through an absence of evidence led by him. Thus, I can only focus on the commitments which Mr Poole has and which are necessary to support himself and the children.
It is unclear from Mr Poole’s evidence which of the expenses (if any) as alleged by him are in any way contributed to by his partner and I do not go so far as to assume that this is so. However, Mr Poole does allege in his Financial Statement (paragraph 32 thereof) that he meets “other expenditure of $510” which is not in any way particularised and which is the sole basis upon which Mr Poole’s expenses exceed his income.
The responsibilities of either party to support any other person
As far as the evidence discloses neither party has such responsibilities.
Eligibility to receive pensions or benefits
This is not a relevant consideration.
Where the parties have separated a standard of living that is reasonable
These parties are in the regrettable and unfortunate position of having debt (both at separation and at present) which exceeds their net tangible (non-superannuation) assets and which has consumed a significant portion of their respective incomes and capital (in the case of
Ms Poole) since separation.
The parties have managed to maintain their present standards of living (indeed their standards of living during the relationship) purely as a consequence of repeated and continual borrowings. That will, no doubt, continue and will, as a consequence of these Orders, remain a reality for each.
Need for maintenance to complete education
This is not a relevant consideration.
Effect of proposed orders on creditors
This is not a relevant consideration.
The extent to which each party has contributed to the income earning capacity, property and resources of the other
This has some relevance albeit somewhat obliquely, in that the debts which are the subject of the primary dispute (at least as raised on Ms Poole’s application) have been contributed to by the parties and each of them. I accept that this is so particularly as regards the totality of the [P] Credit Union debt and that portion of the Aussie Home loan debt, in Ms Poole’s name, which arose from the payment out of a pre-existing debt incurred by the parties jointly (a lease or leases with respect to motor vehicles).
In light of the above an Order requiring payment by the parties of debts which remain extant and which have some nexus and causal connection to the marital relationship is, I am satisfied, just and equitable.
Duration of the marriage
The parties’ relationship was neither long nor short. However, during the relationship, as was already observed, Mr Poole received the benefit of pre-existing debt being discharged in full as well as other debts incurred during the relationship being substantially reduced.
Both of the parties have worked hard during their relationship and have expended their income as and when earnt. That has been reflected in the maintenance by them of a lifestyle which has been funded not only from their income but borrowings.
Protection of a party’s role as parent
Ms Poole gave some evidence as to the arrangement she has made through her employer to accommodate the present parenting arrangements and to ensure that she is otherwise available to the children during the times that they are in her care.
The evidence of Ms Poole would not go so far as to suggest that Orders as sought by her are “necessary” to protect her role as a homemaker and parent. However, it is clear that Ms Poole does not have the assistance of a partner (irrespective of the allegations of difficulties which have arisen with respect to parenting arrangements) to assist in this regard and, if difficulties arise, will be required to tailor her employment and income earning to accommodate those needs.
This factor has some weight in favour of Ms Poole’s case but is the least of the factors of significance.
If either party is cohabiting the financial circumstances of the cohabitation
As indicated above there is simply no evidence before the Court from Mr Poole’s partner nor evidence of the financial arrangements within that household. To the extent that Mr Poole asserts that he has expenses over and beyond his income they are not particularised and the interaction and interconnectedness (if applicable) of his financial affairs and those of his partner are not apparent.
The Court is not in a position to assume that there is no connection nor that there is a connection. It is simply observed that Mr Poole has a partner who clearly does and can financially assist him and, in the one instance which arose during cross examination (see above), has done so and to his benefit.
The terms of orders upon bankruptcy
Not applicable.
The terms of orders as regards creditors and other third parties
Not applicable.
Child support
Child support is paid as assessed in the sum of $163.50 per week.
This is, again, a contribution towards the costs incurred by these now adolescent children and whilst it is to the credit of Mr Poole that child support payments have been made at all times in accordance with assessments and are up to date it is clear that the majority of costs (together with the majority of the children’s day to day care giving) is met by or provided by Ms Poole.
Mr Poole is not criticised with respect to this. There are practical reasons why the arrangements have come to be and, even on
Mr Poole’s proposals, there would continue to be a primacy of care with Ms Poole.
Mr Poole has been clear in his desire and intent to meet additional expenses for the children should they arise (e.g. orthodontic costs). However, they are not presently assessable and are not included. This factor slightly favours an adjustment in favour of Ms Poole but the adjustment is more correctly based in the primacy of care and provision thereof by Ms Poole.
Conclusion
In light of the above I am satisfied that an adjustment should be made in Ms Poole’s favour and in a range of 5-10 per cent. In that regard I again propose to adopt a position that is the median and at 7.5 per cent.
Based on the above the Orders that are proposed by Ms Poole would result in an outcome proximate to that which would be arrived at through the adjustments that are made by me above, being:
a)An assessment of contribution of 57.5 per cent.
b)An assessment of section 75(2) adjustments at 7.5 per cent.
Thus orders will be made by me which will see approximately 65 per cent of the “pool” retained or received by Ms Poole.
The Orders that are proposed by Ms Poole result in her receiving the benefit of 64 per cent of the total pool of property available between the parties and thus those Orders will be made.
I am satisfied that the above Orders are just and equitable and I have had regard to justice and equity in each of the steps that I have taken in assessing the pool, assessing contributions and in assessing future needs.
Again (as referred to by Counsel for Mr Poole in submissions and by reference to my prior decision in Eakins & Eakins) I would propose to then also step back from the entire arrangement, to avoid controversy as to the number of steps required to be taken in the process, and consider justice and equity.
Overall I am satisfied that justice and equity is best served by Mr Poole assuming responsibility for a greater portion of the debt than he presently meets or has met and thus alleviating Ms Poole of responsibility for that portion.
I am not satisfied that a superannuation splitting Order is justified or required whether on the basis of the above three stage approach and the percentages arrived at thereby or by reference to a just and equitable determination of the proceedings without reference to percentages.
In light of the above matters Orders are made.
I certify that the preceding two hundred and fifty-four (254) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 17.4.2014
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Fiduciary Duty
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Constructive Trust
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Jurisdiction
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