Richards and Richards
[2013] FamCA 976
•13 December 2013
FAMILY COURT OF AUSTRALIA
RICHARDS & RICHARDS [2013] FamCA 976
FAMILY LAW – CHILDREN – Parental Responsibility – Relocation – Best interests of the children – Where the children currently live in Queensland – Where the mother seeks to relocate the children to New South Wales – Meaningful relationship with both parents – Equal time – Significant and substantial time – Where the mother is not permitted to relocate with the children.
FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Add-backs post Stanford – Contributions – Where the wife has made greater financial and non-financial contributions – Superannuation splitting order – Where a superannuation splitting order is made.
Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 61DA, 65DAA, 75(2)(o), 79.
Evidence Act 1995 (Cth).
MRR v GR (2010) 240 CLR 461
Stanford & Stanford (2012) 247 CLR 108
Bevan & Bevan [2013] FamCAFC 116
Bowe & Bateman [2013] FamCA 253
APPLICANT: Ms Richards
RESPONDENT: Mr Richards
FILE NUMBER: BRC 1601 of 2011
DATE DELIVERED: 13 December 2013
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Forrest J
HEARING DATE: 24 & 25 May 2012 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Burridge
SOLICITOR FOR THE APPLICANT: MacDonnells Law
COUNSEL FOR THE RESPONDENT: Mr Kirk SC
SOLICITOR FOR THE RESPONDENT: Paul A Curtis & Co
Orders
Parenting
(1)That all previous parenting orders are discharged.
(2)That the Mother and the Father have equal shared parental responsibility for the children of the marriage, G born … 2003 and K born … 2005 (“the children”).
(3)That during the periods when the children are in each parent’s care pursuant to these Orders that parent in whose care they are shall have the sole responsibility for their day to day care, welfare and development.
(4)That in compliance with their obligations pursuant to s 65DAC of the Family Law Act, in respect of major long-term issues in relation to the children, the parties shall consult each other by first communicating with each other by telephone or in writing and then, if necessary, meeting together to discuss and agree upon decisions.
(5)That in the event that the parties are unable to resolve any parenting dispute by consultation as provided in paragraph 4 above, they shall attend mediation and with either:
(a) A qualified Family Dispute Resolution Practitioner; or
(b) A Family Relationship Centre (or some similar organisation).
(6)That in the event that the parties are unable to agree on the identity of any proposed mediator or any dispute resolution service then:
(a)The party who first raised the subject matter of the dispute is to submit to the other party a list of not less than three (3) potential family dispute resolution services or providers;
(b)The other party is to select one (1) mediator or family dispute resolution practitioner or provider from that list and give prompt notice of his or her choice to the other party;
(c)The parties are to share equally the costs, if any, of utilising the mediator or Family Dispute Resolution Service Centre;
(d)Both parties are to attend upon such Family Dispute Resolution Practitioner or Service so selected and make a genuine effort to reach agreement in respect of the matters in dispute.
(7)That both parties may attend any school or school social, cultural, sporting or educational event involving either or both of the children at which parents of children are welcome by the school administration to attend and each party shall:
(a)Inform the other party of any such events he or she becomes aware of in a timely manner; and
(b)Communicate to the other what, if any, arrangements are made for the children to attend any such events.
Parenting time
(8)The children shall live with the mother and spend time with the father at all times as may be agreed between the parties and in the absence of agreement then they shall spend time with the father as follows:
(a)From after school on Thursday until before school on Tuesday every second week during school term, commencing on the first Thursday of term when the children have spent the first half of the previous school holidays in the father’s care and on the second Thursday of term when the children have spent the second half of the previous school holidays in the father’s care;
(b)For half of each school holiday period, being the second half of the holidays in odd numbered years (meaning they will spend the second half of the 2013-2014 Summer school holidays with the father) and the first half in even numbered years;
(c)On the father’s birthday each year, from after school until 6:30 pm if a weekday or from 2:00 pm to 6:30 pm if a Saturday or a Sunday, if they are not otherwise spending time with him on that day pursuant to these orders;
(d)From 5:00 pm on Saturday until before school on Monday morning on the weekend on which Father’s Day falls each year if they are not otherwise spending time with him on that weekend pursuant to these orders;
(e)On each of the children’s birthdays each year, from after school until 6:30 pm if a weekday or from 2:00 pm to 6:30 pm if a Saturday or a Sunday, if they are not otherwise spending time with him on that day pursuant to these orders.
(9)That if the children are spending time with their father pursuant to these orders on their mother’s birthday each year then they shall return to their mother’s care from after school until 6:30 pm if a weekday or from 2:00 pm to 6:30 pm if a Saturday or a Sunday.
(10)That if the children are spending time with their father pursuant to these orders on the weekend on which Mother’s Day falls each year then they shall return to their mother’s care from 5:00 pm on Saturday until before school on Monday morning on that weekend.
(11)That if the children are spending time with their father pursuant to paragraphs 8(a) or (b) of these orders on either of their birthdays, then they shall return to their mother’s care on that day from after school until 6:30 pm if a weekday or from 2:00 pm to 6:30 pm if a Saturday or a Sunday.
(12)That each parent shall ensure that the children are properly supervised by adults whilst in his or her care and that they are not left in the care of other children, at least without first obtaining the approval and consent of the other parent.
(13)That at any time when the children are in the care of either parent pursuant to these orders and that parent or his or her current partner is unable to care for or supervise the children personally, the other parent shall be given the first option to care for the children, before some other third person is engaged to provide that care.
Collection and delivery
(14)That where the transition of the children from one parent’s care to the other parent’s care is to take place pursuant to these orders before school or after school on schooldays, the parent whose care they are transitioning from shall cause the children to be delivered to the school at the commencement of the school day and the parent into whose care they are transitioning shall cause the children to be collected from school at the conclusion of the school day.
(15)That where the transition of the children from one parent’s care to the other parent’s care is to take place pursuant to these orders of an evening on a school day or on weekends or during school holidays then the parent whose care they are transitioning from shall cause the children to be delivered to the residence of the other parent into whose care they are transitioning.
Communication
(16)That the children shall be permitted to initiate communication with the parent in whose care they are not at any particular time by telephone, SMS text message, Skype or email and the parent in whose care they are at any particular time shall inform the children of that and shall facilitate any such communication requested by either child and provide the child or children with privacy for such communication.
(17)That the parent in whose care the children are not at any particular time shall be permitted to communicate with the children by telephone call, SMS text message, Skype or email in response to any such communication received from either child during such time but shall be permitted otherwise to communicate by telephone with the children between the hours of 6:00 pm and 7:00 pm Queensland time each second night that they are in the other parent’s care and the parent in whose care they are at that time shall facilitate any such telephone communication made by the other parent and provide the child or children with privacy for such communication.
Specific issues
(18)That each parent shall notify the other as soon as practicable of any accident, emergency, serious illness or significant injury involving either of the children.
(19)That in the event that either of the children requires medical or hospital treatment, the parent then caring for the children will immediately inform the other parent via telephone, SMS message or email (in that order of priority).
(20)That each parent shall authorise the children’s school or schools to provide each parent with copies of all school reports and other reports on progress and behavioural issues and all school circulars, notices, details of all functions, parent-teacher nights and other activities to which parents are invited as well as school photograph order forms.
(21)That each parent shall authorise any medical or allied health practitioner the children attend upon from time to time to provide each parent with any information he or she may request from time to time regarding either child’s medical health and general welfare, including any diagnosis, proposed treatment or prognosis for the children.
(22)That each parent shall keep the other parent informed at all times of all medical or allied health practitioners consulted in relation to the welfare, care, health or development of either child at all times including but not limited to the particulars of the name, address and contact details of that practitioner.
(23)That each parent shall keep the other parent informed of his and her residential address, home telephone number, mobile telephone number and email address and shall notify the other in writing of any change to any of those within forty-eight (48) hours of any such change.
Property Adjustment
(24)That all previous spousal maintenance orders are discharged.
(25)That the Wife shall retain as her property absolutely, free of any claim by the Husband, the Volkswagen … motor vehicle in her possession, all personal possessions currently in her possession, including household contents and jewellery, and, subject to the obligation to pay the Husband the sum of $126,500 pursuant to the next paragraph of these orders, any money she has in bank accounts in her name, and all of her interests in superannuation funds.
(26)That within 21 days of the date of these orders, the Wife shall pay to the Husband, by payment to the trust account of the solicitors for the Husband, the sum of $126,500.
(27)That the Wife shall retain all liabilities in her name and she indemnifies the Husband against any liability in respect of those.
(28)That the Husband shall retain as his property absolutely, free of any claim by the Wife, the Subaru … motor vehicle, the Toyota … motor vehicle, the motor scooter, the coin collection, all personal possessions currently in his possession, including household contents, and any money he has in bank accounts in his name.
(29)That the Husband shall retain all liabilities in his name, including credit card liabilities, motor vehicle finance debts and personal loans and he indemnifies the Wife against any liability in respect of those.
(30)That pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Husband’s interest in M Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with the regulations, using a base amount, at the operative time in the sum of $45,573 and that there be a corresponding reduction to the entitlement the Husband would have in M Superannuation fund but for this Order.
(31)That the operation of paragraph (30) of this Order is suspended for 21 days from the date of this Order.
(32)That the operative date of the aforesaid Order shall be Friday 10 January 2014, namely 4 clear business days from the expiration of its suspension pursuant to paragraph (31) hereof, subject to the right of the trustees of the M Superannuation Fund to be heard as to any contrary position.
(33)That should the trustees of the M Superannuation Fund wish to be heard by the Court with respect to the superannuation splitting Order, they shall give notice of such intent to this Court through email transmission to the Associate to Justice Forrest at…, copied to the solicitors for each of the parties, within 21 days of the date of this Order.
(34)That the solicitors for the Husband shall, forthwith, give notice to the trustees of the M Superannuation Fund of the making today of the Order contained in paragraphs (30) – (33) hereof, including detail of the precise content of those paragraphs, and they shall also provide them with the email addresses of the solicitors for each of the parties so they can be copied into any notice given to the Court by the trustees that they wish to be heard in respect of the superannuation splitting Order.
(35)Each of the parties has liberty to apply to the Court for any further Order necessary to give effect to this Order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Richards & Richards has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT FILE NUMBER: BRC 1601 of 2011
Ms Richards Applicant
And
Mr Richards Respondent
REASONS FOR JUDGMENT
1.Ms Richards and Mr Richards met in Sydney and started living together in that city in the year 2000. They married in 2002. Their first child, G, was born in June 2003 and their second child, K, was born in 2005. The family moved to live on the Sunshine Coast in 2008 when the husband’s employment was transferred to Queensland by the company for which he worked.
2.The couple separated in July 2010 and are now divorced. Unable to reach agreement as to how their financial affairs would be finalised, Ms Richards (“the Wife”) commenced proceedings in the Federal Magistrates Court (as it then was) in Brisbane in March 2011. She applied for property adjustment orders and spousal maintenance. She amended her application in May 2011, seeking parenting orders from the Court in respect of the two children. She sought orders that permitted her to move with the two girls back to Sydney, to once again live in that city.
3.Mr Richards (“the Husband”) opposed the wife’s application and in June 2011, orders were made for him to pay spousal maintenance to the Wife. At the same time, parenting orders were made by consent providing for the parents to equally share parental responsibility for the girls and for the girls to live with their mother and to spend five nights per fortnight in their father’s care.
4.In September 2011, the proceedings were transferred to this Court for hearing and determination on a final basis. A two day trial took place in late May, 2012 and my judgment has been reserved ever since. It is now almost nineteen months since the trial.
5.I very much regret the fact that it has taken this long to deliver the judgment in this case. I appreciate and acknowledge that this delay would have caused the parties in the case anguish, above and beyond the anguish that their conflicted relationship already causes them. My responsibility to hear and determine so many other cases in this Court in that period of time has been a significant factor in this delay. I extend my apology to the parties for the delay and can only hope that the certainty my judgment now offers this family will assist the parties in overcoming any conflict that continues to exist and will allow them to focus on continuing to build and maintain a co-operative parenting relationship.
The Parenting Orders Dispute
6.The Wife wants to move back to Sydney where the family used to live before the move to Queensland in 2008. She cites better employment opportunities, family support and existing friendship networks as principle amongst her reasons for wanting to move back to Sydney. She wants to take the couple’s two daughters with her and to put them in school in the lower north shore area of Sydney where she hopes they will be able to live, not far from where her elderly mother and her older sister currently live. She proposes that the girls’ relationship with their father will be able to be facilitated and maintained by the girls spending regular time with him over alternate weekends during school term and half of the girls’ school holidays. As part of that proposal, the Wife contends that the Husband could also move back to Sydney again to live and work. She proposes that even if he will not do that the girls could spend time with him each alternate weekend by the Husband travelling to Sydney for one weekend each month and having them in his care there, and by the girls travelling to the Sunshine Coast for one other weekend each month and staying with him there.
7.The Husband opposes the Wife’s proposal to take the girls with her to live back in Sydney. He says he cannot transfer his employment back to Sydney and does not want to give it up and have to try to find alternative employment in Sydney, which he asserts would be difficult. He cites logistical difficulties and significant expense as reasons why the Wife’s alternate proposal for the girls and the Husband to travel regularly between the Sunshine Coast and Sydney is not a viable solution to the needs of the children to maintain a meaningful relationship with him. He contends that the girls’ best interests will be served by remaining on the Sunshine Coast and living in a week about equal shared parenting arrangement with him and their mother.
8.Although they are often referred to as “relocation cases”, parenting orders cases that include one parent’s application to move children a significant distance away from the other parent are still to be determined in the same way as all parenting orders cases are determined. Any parenting orders this Court makes in respect of this couple and their two daughters must be made with regard to the best interests of the two girls as the paramount consideration. Unsurprisingly, each parent in this case contends that the proposal she and he now puts forward is in the best interests of the two children. Of course, both cannot be right, and it is indeed possible that neither is completely right.
9.Entry into parenthood brings with it heavy responsibilities, as well as profound satisfaction and joy. Very often the best interests of children necessarily impinge upon parental freedom of choice. The reality of this fact is rarely more obvious than when separated parents are in dispute about where their children should live. When both parents collectively cede responsibility to this Court to determine what parenting arrangements should be made for their children in a context of serious dispute between them, quite often a determination by the Court as to what is in the best interests of those particular children can leave each parent unhappy. More often, of course, particularly in “relocation cases”, one parent will be far more unhappy with the outcome determined by the Court than the other parent. Very often the relevant factors are finely balanced, yet a decision, based on the Court’s own determination of what is in the best interests of the children, must be made.
10.Parenting orders disputes in this Court are determined pursuant to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the FLA”). The decision as to what are appropriate parenting orders to make is, ultimately, a discretionary one. However, contained within Part VII (in s 60CC) is an express list of factors, some described as “primary” and some described as “additional”, that the Court must consider in determining what is in the best interests of a child when exercising that discretion. The process of determination is clearly a broad one as one of the listed “additional” considerations is “any other fact or circumstance that the Court thinks is relevant”. The determination of what is in a child’s best interests must also be undertaken having regard to the objects of Part VII and the principles underlying those objects, each of which is expressly listed in s 60B. Those objects, the principles underlying them and the first of the two “primary” considerations include recognition of the well accepted fact[1] that in most cases meaningful contact by a child with both of their parents is important to their welfare in the short and long-term.
[1]See B and B: Family Law Reform Act 1995 (1997) FLC 92-755 per Nicholson CJ, Fogarty and Lindenmayer JJ.
11.Furthermore, in this discretionary exercise, when the Court is making a parenting order in relation to particular children, it must apply a presumption that it is in the best interests of those children for their parents to have equal shared parental responsibility for the child: s 61DA. That term “parental responsibility” is defined in s 61B to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 65DAC imposes quite strict obligations on parents to communicate with each other and to make genuine effort to and to actually make joint decisions about major long-term issues in relation to their children where, under a parenting order, they are to share parental responsibility for their children.
12.The presumption does not apply in certain circumstances (s 61DA(2)) and may, even where it would otherwise apply, even be rebutted by evidence. But often parents, even those in serious disputes in this Court, actually agree that they should, by order, equally share parental responsibility for their children. The Husband and the Wife in this case are such parents. They are in agreement that the Court should order that they have equal shared parental responsibility for their two daughters. That will be done.
13.Given that the parenting order that is to be made will provide that the Husband and the Wife have equal shared parental responsibility for their two children, s 65DAA(1) of the FLA provides that the Court must:
(a) Consider whether the children spending equal time with each of the parents would be in the best interests of the children; and
(b) Consider whether the children spending equal time with each of the parents is reasonably practicable; and
(c) If it is, to consider making an order that provides for the children to spend equal time with each of the parents.
14.Each of the two matters in (a) and (b) just set out must be considered separately and each is a matter upon which the power to order that the children spend equal time with each of their parents is conditioned.[2] If both of them are not answered in the affirmative then the order cannot be made.
[2] MRR v GR (2010) 240 CLR 461.
15.In determining whether it is reasonably practicable for the children to spend equal time with each of their parents, s 65DAA(5) provides that 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 children to spend equal time with each of them; and
(c) The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an equal shared care arrangement; and
(d) The impact that an equal shared care arrangement would have on the children; and
(e) Any other matters that the Court considers relevant.
16.In considering these matters to determine, as a question of fact, whether it is reasonably practicable for the children to spend equal time with each of their parents, the Court is obliged to consider the circumstances of each of the parents. Where, as in this case, one of the parents expressly wishes to move to another city and the other parent says he will not, the first parent’s circumstances, particularly those pertaining to her life in the place she wants to move from, must be given careful consideration in the process of answering the question of fact. Of course, if the parent who expresses the wish to move to another city or country says she or he is moving whether the children are going or not, the answer to the reasonable practicability question would appear to be relatively clear. It is less clear where that parent says they will not move to their preferred destination if they are not permitted to take the children.
17.However, consideration of the issues and circumstances surrounding an expressed determination on the part of the other parent not to move to the same place as the parent who wants to move must also be given in the process of determining the matter. Refusal by one parent to move should not be elevated, without consideration of the reasonableness of that position, to determinative status in the process. Ultimately, given the existence of s 65DAA in Part VII of the FLA, the reasonable practicability or otherwise of the children spending equal time with each of their parents, in all the circumstances, must be determined, as well as the question of whether it is in the children’s best interests.
18.Even where the Court does not make an order for the children to spend equal time with each of their parents, it is then required to consider whether the children spending substantial and significant time with each of their parents is in their best interests and also whether that is reasonably practicable, having regard to the same considerations as provided for in determining whether their spending equal time with each parent is reasonably practicable. The expression “substantial and significant time” is also defined in s 65DAA(3). It includes days that fall on weekends and holidays and days that fall on other days (ie school days) and time that allows the parent to be involved in the child’s daily routine and occasions and events of significance to the child and to the parent.
Some relevant matters of fact in this case
19.The Wife (who is now 50 years of age) was born in Sydney in 1963 but moved to the USA with her parents and her seven and a half year old sister when she was six years of age. She lived in the United States for over 16 years and also in Europe for three years. Her parents were wealthy, the father having been employed as the CEO of a multinational company. When she was 27 years of age, she and her sister returned to live in Sydney. Shortly after that, her parents separated. Her mother also then moved back to Sydney and her father retired to live in the USA. He still lives in the USA. Her mother (who is around 76 years of age) still lives in Sydney, as does her older sister, who is married with a child, K, who is the girls’ cousin, of course. The Wife’s sister lives at a lower North Shore suburb and their mother also lives nearby in the same suburb.
20.The Wife obtained professional qualifications whilst living in the USA. She was in employment as a professional for ten years in Sydney up until meeting the Husband and continued in such employment until the birth of their first child. From that time in 2003 until the family moved to Queensland in 2008, the Wife continued working part-time as a professional for two to three days per week, save for a further period of maternity leave around the birth of their second child. The girls were in day care for some of the time the Wife worked part-time or were cared for by their maternal grandmother.
21.The Husband (who is now 41 years of age) was born in Sydney in 1972 and was raised there, the eldest child in a sibship of three. He obtained an arts degree from A University and a business degree remotely from B University. He had employment in the insurance industry before moving into the specialised sales industry. He was working in that industry when he and the Wife commenced their relationship and he has been working in that industry ever since, starting with his current employer as a sales representative in 2004. When the couple lived in Sydney, the Husband’s sales territory was northern Sydney and northern New South Wales. He was required to do some travel away from home but otherwise worked from home.
22.The couple lived together in Sydney suburb W until 2005 when they moved to a home they bought jointly at Sydney suburb H. In August of 2008, the Husband was promoted by his employer to the position of National Sales and Marketing Manager. Taking that position required the Husband to transfer to Queensland as the position is based out of his employer’s offices in Brisbane. The couple clearly agreed to make the move and for the Husband to take the promotion. It seems, further, that the couple also agreed to live on the Sunshine Coast upon the move to Queensland.
23.The Husband’s employer is based in the northern suburbs of Brisbane and, again, since the family moved to the Sunshine Coast, the Husband has been able to work from home principally, being required to travel to his employer’s Brisbane office only two days per week. It seems the couple chose to live on the Sunshine Coast for the attractive lifestyle they believed it offered, having had their wedding and many subsequent holidays there before they moved there. They moved to a rental home in that town in October 2008, not having sold their Sydney home at that time. In fact, they then decided to let their Sydney property and to settle into Queensland before considering selling the Sydney property. They ultimately decided to sell the Sydney property in 2010 and it sold just a couple of months before they agreed to end their marriage and separate.
24.The two girls were five and three years old when the family moved to Queensland and the eldest, G, started school on the Sunshine Coast when they arrived there. The youngest, K, started at the same school as her sister at the beginning of 2010. They have been going to that same school ever since and have now just finished grades five and three respectively. They have developed friendships at the school and have been involved in much extra-curricular activity outside of school hours. Both of the parents have been involved in the school and the children’s activities. School reports for both girls in respect of the years they were on the Sunshine Coast prior to the trial, including after their parents’ separation, were put into evidence before the Court. Those portray the two girls as bright, capable, enthusiastic students who are liked by their peers and teachers alike. There is nothing in those reports that suggests that these two children have had more difficulty coping with the emotional turmoil of their parents’ separation than can be expected.
25.The Husband is very involved in physical activity and, apparently, values a healthy, active lifestyle. He rides a bicycle and swims quite a lot during his spare time. He has involved the girls in surf lifesaving through the nippers group at the local surf club and also takes them bike riding and swimming when they are in his care. The Wife, while not as physically active as the Husband, nevertheless involves the girls in dancing and swimming lessons too, clearly appreciating the benefits of such activities for growing children.
26.In the first few years after the family moved to Queensland, the Husband was required to travel away from the Sunshine Coast to other parts of Australia and he was away for one to two nights per week. Since the separation of the parties, the Husband has continued to work for his employer as the National Sales and Marketing Manager but has not been required to travel nearly as much. In that position, he now has reasonable flexibility as to his ability to work from home relative to the requirement to travel to Brisbane to work. He said that he arranges the travel he is required to do for the time when the girls are not in his care. At the time of the trial, he was earning in excess of $150,000 per year in gross salary and bonuses, that income having steadily increased in the years of his holding the position.
27.Between arriving in Queensland and the couple’s separation, the Wife obtained some casual clerical employment. She continued that after the separation but began looking around for more work to help support herself and the two girls financially. Shortly before the trial, the Wife obtained more work in administration of a local supermarket. That employment provided her with thirty hours per week, in flexible circumstances, allowing her to work on any week day at any time after 5:00 am. That was providing her an income of $900 per week gross, the equivalent of around $46,000 per annum.
28.At separation, the Wife moved out of the home that the couple was renting and found other rental accommodation nearby. She took the children with her. The couple attended family dispute resolution in early 2011 and agreed to a parenting regime of the children living with the Wife for nine days each fortnight and living with the Husband for a five night period from Thursday after school one week to Tuesday morning the next week during school term. The girls also spend one other evening together with the Husband for dinner during the balance of the fortnight. They also spend half of each school holiday period with the Husband. Those arrangements continued through to the trial and I have no reason to doubt that they have continued since.
29.At the time of the trial, the Wife was living in rental accommodation on the Sunshine Coast and the Husband was living in rental accommodation nearby. Those places are not very far apart at all.
30.Since the separation of the parties, the Husband has had young adults from other countries who are studying English on the Sunshine Coast renting rooms in a “homestay” situation. The Wife has expressed some concern about the girls being exposed to these people. She has also expressed some concerns, based on matters she has reported the children to have told her, that the father has introduced other women to the children who he may at various times been having relationships with. These matters were not really pressed to any noteworthy degree in cross-examination of the Husband by the Wife’s counsel and, ultimately, I did not form a view that the Husband has been insensitive and inattentive to the children’s interests in this regard. If anything, I got a sense that the Wife might have still been having some emotional difficulty with the thought of the Husband forming new relationships.
31.At the time of the trial, the Husband was in a relationship with a woman he was beginning to spend quite a deal of time with, although they had not moved in to live with each other at that time.
32.Despite moving to Queensland the girls have maintained good relationships with members of their extended family. The maternal grandmother travelled to Queensland and spent time with the family regularly between October 2008 and July 2010 when the couple separated. It does not appear to be disputed that she visited around ten times and stayed for four to eight days each time she visited. The Wife and the two girls maintain a good relationship with her. The maternal grandfather also travelled out from the United States of America once or twice each year, maintaining a good relationship with the Wife and the two girls. I have no reason to consider those visits from the maternal grandparents of the girls would have stopped post-separation of the parents.
33.There was not much evidence about the relationships between the girls and their paternal extended family, but it was not suggested that they have had no contact at all with members of the Husband’s family or that they do not have relationships with any of them. Such relationships did not seem to me to be very relevant to the determination of this case.
The Parents’ respective Proposals and the evidence relevant to those
34.The Wife says she believes it is important that she and the children live closer to her family so that the children can have the benefit of their grandparents and other extended family members being involved in their upbringing. She refers to her mother, and her sister and brother-in-law and their son, K (who is very close in age to G). She refers to her aunt and uncle and two of her cousins, all of whom live in Sydney. Her mother, around 76 years of age now, lives on her own and the Wife says she would like to be in Sydney to support her and to have her support. She says that she also has a large circle of friends in Sydney and a more limited circle of friends in Queensland, being mostly other parents she has met through her daughters’ school and other activities.
35.The Wife also asserts that she would be more able to adequately support herself and the children financially in Sydney. Even though she obtained more remunerative employment in her professional field (relative to the work she had previously been doing on the Sunshine Coast) not long before the trial, the Wife believes that she could earn more income back in Sydney. I accept that is probably correct, but I would also expect the cost of living to be higher in Sydney than on the Sunshine Coast.
36.The Wife has the girls enrolled to attend a particular private school in Sydney and has had them enrolled there since they were two years old. The child G would start high school in Sydney in 2015 if they were to move back there. If they were to move there before then, the Wife would like them to attend a private primary school, near where the Wife hopes they would live.
37.The Wife’s case included the proposal that the Husband could move back to Sydney too. Indeed that is true. He could. He was born there. He grew up and was educated there. He worked there. His parents live there. He knows the place and, one would expect, could settle back in there if he moved back there. However, he does not want to. He has lived on the Sunshine Coast since 2008. He says he very much likes living there. He is involved in the community there. He has formed relationships and friendships there and is very happy living there and working in his job from there.
38.The Husband’s evidence is that he cannot stay in the same position of employment and transfer back to Sydney. That evidence is supported by the evidence of the General Manager of the company he is employed by. The GM said it is a requirement of the position that the Husband holds that it is based in or near Brisbane. He said the person holding the position is required to attend regular meetings in the Brisbane office. He said that the person holding the position must be available to attend the Brisbane office of the company each day if required. The company does not have an office in any other place in Australia than Brisbane. The GM said that the Husband would be unable to perform the role in which he is employed from Sydney and that if he were to move back to Sydney he would be required to resign from his position. I have no reason not to accept that evidence. I do so.
39.The Husband, when asked by counsel for the Wife whether he had sought any other work in Sydney, said he had not as he had no reason to at that point. When he was asked whether, if the children were allowed to move with their mother to Sydney, he would apply for a job in Sydney, he said that he would not because he doubted that he would find one that had the same flexibility as the position he currently holds.
40.The evidence satisfies me that the Husband would probably not move back to Sydney at this point in his life if the Wife is permitted to move with the children to Sydney. In the circumstances, although he clearly could, I do not consider that his unwillingness to, having regard most particularly to his employment circumstances and the prospects of his finding a job of similar terms and conditions of employment, is unreasonable or that, in the circumstances of this case, he should be expected to.
41.The Wife proposed that if the Husband does not move to Sydney then he should fly to Sydney for one extended weekend each month and have the children with him from Thursday after school until Sunday afternoon. She proposed that he could stay at his parents’ home, also on the lower north side of the harbour. She said that his employment, flexible as it is, should be able to fit in around that, such that he could work from Sydney on the Friday of such weekends.
42.The Husband did not accept that this was a viable proposal. He asserted that he would have to use days of annual leave on these Fridays if he went to Sydney then. That would be around ten to twelve days per year. He also considered that it would be unfair to expect him to stay with family or friends so regularly and that he would have to hire a car to get around in down there. He said that he considered that it would cost him between $20,000 to $25,000 per year for travel and accommodation for him and the girls and for car hire if he was to do the trip to Sydney one weekend each month. He believed he could not reasonably afford it.
43.The Wife also proposed that the girls fly from Sydney up to Queensland for one weekend with their father each month. The Wife proposed that she would pay for their flights and her own flights accompanying them. She proposed they could fly north on a Friday afternoon into Maroochydore or Brisbane, travel then to the Sunshine Coast location and then back to Sydney again on Sunday afternoon. She accepts that the time that it would take to travel from the lower north side of Sydney to the airport, to check in and board the plane, to fly to Queensland (without any delays) and to travel to the Sunshine Coast from the airport would be at least four hours. I expect it would regularly be longer than that, and I am satisfied it would be significantly longer than that if they fly into Brisbane and have to drive to the Sunshine Coast on a Friday night. The return journey on a Sunday afternoon would be very much the same in reverse. A lot of the weekend would be lost to travel. The girls would probably be very tired on arrival and likely to be even more tired on return to Sydney on Sunday nights.
44.I formed the view that the Wife was being unrealistic about the prospect of affordable and seamless arrangements being able to be put in place to allow the girls to spend each alternate weekend with their father if they lived in Sydney with their mother and their father remained living on the Sunshine Coast. In the circumstances of this case, I do not consider that could be achieved as proposed by the Wife in a way that was actually in the best interests of the children. I consider that the couple would encounter problems with such a regime, if ordered, straight away, least of which would be the impact on the girls of such regular and lengthy travel in the format proposed. I certainly did not get a sense that the Wife was soundly committed to a belief that such arrangements were indeed in the best interests of her daughters in the medium to longer term, but rather that they were arrangements she was proposing in order to demonstrate to the Court that she was committed to the maintenance of the girls’ relationships with their father.
45.I am satisfied that if the girls were permitted to move back to Sydney with their mother that the time that they would spend with their father would be significantly reduced from that which they have known both prior to and since their parents’ separation.
46.Notably, the Wife put the alternative case to the Court for the girls to continue to live with her but for their time with the Husband to be reduced in any event from five nights per fortnight to four nights per fortnight if the Court did not determine that the girls’ best interests would be met by letting the Wife take them back to live in Sydney. She supported that alternative proposal with the asserted belief that the girls need to have a “psychological home – somewhere they can spend most of the time.” It seems also, as will be seen a little later in these reasons, that a reduction in the time the girls spend with their father might be also said to accord with the views said to have been expressed by the older girl to a family report writer in the middle of 2011, at least.
47.In contrast, the Husband’s case is simply understood. He proposed that the time that the children spend with him be increased from the current period of five days per fortnight during school term to an equal shared time arrangement where they spend week about in each parent’s home in the Sunshine Coast area.
48.As part of their conduct of these proceedings, the parties jointly commissioned a family report to be prepared by a social worker, Ms L. She saw the parties and the children in the middle of 2011 and provided a report to them on 25 July 2011. That report was put into evidence before the Court and relied upon by the Wife in support of her application to be allowed to move the children back to Sydney to live. It was not updated prior to the May, 2012 trial.
49.Ms L, at the conclusion of her report, expressed the opinion that the Wife should be allowed to take the two girls back to Sydney to live. Ms L then quickly went on to suggest, clearly prefaced on the fact that the Wife and girls would move to live in Sydney, that the girls spend alternate weekends with the Husband from Friday afternoon/evening until Sunday afternoon/evening as well as half of their school holidays with him, whether he lived in Sydney or the Sunshine Coast. Ms L then suggested, or supported (at a time when the girls were only eight and six years of age respectively) arrangements, prefaced on an apparent acceptance of the fact that the Husband would not move to Sydney, such as those proposed by the Wife for the Husband to travel to Sydney one weekend per month for the girls to spend time with him and for the Wife to take the girls to Queensland one weekend per month to spend time with the Husband.
50.I have already expressed my findings about such a suggested or proposed set of arrangements. I do not consider them to be workable in the medium or long term and I do not consider them to be in the girls’ best interests. Of course, I am not bound to accept Ms L’s recommendations about these things and I do not. What though of Ms L’s other observations and opinions?
51.Ms L reported that the Wife had told her that she was, at the time, being treated for anxiety in the context of the present disputation and her desire to return to Sydney. The Wife gave evidence at the trial in May 2012 that she was still being treated by her GP for anxiety that manifested itself by her experiencing difficulty sleeping. She was being treated with prescribed medication and she had been obtaining counselling from a psychologist. The Wife put no other evidence about this before the Court. I am satisfied that the Wife was dealing with this issue and appropriately engaging with treating professionals. The evidence there was about this did not convince me, particularly having regard to my observations of the Wife in Court and under cross-examination during the trial, that it was really a matter of major significance in the determination of the matter.
52.Ms L reported observations of the children. She offered some opinions that I accept, as follows:
(i)The children were well dressed and appeared well cared for;
(ii)The children’s interactions with each other and their mother were consistently positive;
(iii)The children’s father engaged with them and the interactions were consistently child focused and positive;
(iv)The children returned happy from a lunch outing with their father;
(v)The children moved well between their parents and separated affectionately from their father;
(vi)The children presented as closely bonded children who are being raised in a positive manner;
(vii)The children’s primary attachment and security is with their mother.
53.Ms L reported that eight year old G told her that she lives with her mother and visits her father every second weekend and that she said this is “good” but went on to say “it’s a bit long away from mum though.” She is reported to have said, when asked what she would prefer, “maybe 3 days with dad”.
54.Ms L reported, that in respect of how G felt about the possibility of living in Sydney, whilst understanding that is what her mother wants and that she has family in Sydney, the child said “I like it more because my whole family is there.” Ms L reports the child became tearful about this and when asked about her tears, attributed them to missing her family in Sydney.
55.Asked about two wishes, the child is reported to have responded that she wished for her parents to get back together and to be in Sydney. She is reported to have said that she does not like the Sunshine Coast “that much” and that she misses Sydney. She is also reported to have said that if her father stayed on the Sunshine Coast and her mother went to Sydney that she would want to be with her mother.
56.As to seeing her father if she lived in Sydney and he lived on the Sunshine Coast, G is reported to have said “I would come up maybe for a week.” She is also reported to have said, when her attention was taken to holiday periods (presumably in response to what she had just said) “yes, maybe on holidays and if dad lived in Sydney maybe 3 nights.” When asked about arrangements she would want to have in place if her parents were in the same place she is reported to have responded that she wants to “be more with mummy.”
57.When asked about the proposed move, the child is reported to have confirmed that she wants to go as soon as possible and she was apparently unconcerned about meeting new friends and leaving friends behind. She is reported to have said that her mother has told her it is better to move to Sydney but that she thinks so too. She is reported to have said she has not told her father about this because she does not want to upset him.
58.Ms L reports returning the child to the Wife at this point as she was upset, apparently worried that her reported views would upset her father.
59.Ms L reported that six year old K identified as living on the Sunshine Coast with her mother and sister, saying that was good and denying having any problems or worries. As to spending time with her father, the child is reported to have understood that she sees him five nights each fortnight and said that “it is good.” She is reported to have said sometimes she misses her mother though.
60.It is reported that when she was asked how she would feel about living in Sydney, the child said “good, because we came from Sydney.” She is reported to have said that her mother had talked to her about living in Sydney. She is reported to have commented that she has cousins and “grandma” there in Sydney. She is reported as feeling alright about the idea of changing schools and as expressing the preference to live with her mother if her mother was in Sydney and her father was on the Sunshine Coast.
61.In her concluding observations, Ms L expressed the opinion that G presented as a bright girl “who was able to appreciate the implications of her expressed wishes.” Appropriately, Ms L acknowledged that six year old K was less able to appreciate the implications of her wishes.
62.I accept that the girls both expressed clear preferences for living more of the time with their mother than with their father. That is consistent with them having been primarily cared for by their mother by agreement between the parents in the years before their parents separated and with them having spent more time with their mother than their father since their parents’ separation. It is unsurprising that their most secure emotional attachment is with their mother, who was observed by Ms L to be a pleasant and insightful person.
63.I am nonetheless satisfied that the girls have a good emotional attachment to their father and that their relationship with him is a meaningful one that provides them with the benefits that are so universally accepted as accruing to children when such relationships exist. The benefit to them of having this meaningful relationship with him as well as the continuation of the one they clearly have with their mother is a matter I must consider in the process of determining the parenting orders that are in their best interests.
64.Equally important, is the consideration I must give to the practical difficulty and expense of the children spending time with the Husband if they are to live principally with their mother in circumstances where that difficulty or expense will substantially affect their right to maintain their relationships with their father and to have direct contact with him on a regular basis. Just as important again, is the consideration I must give to the likely effect changes in the children’s circumstances, such as them moving to Sydney and seeing far less of their father than they currently do, will have on them.
65.Although Ms L expressed the opinion that the child G “was able to appreciate the implications of her expressed wishes”, I am not satisfied that the observed facts reported by Ms L fully support that opinion. I do not accept that the conversation Ms L reports she had with the child, particularly the child’s statements that I have included in [53]-[57] above, provide sound factual support for a considered opinion that the eight year old child actually appreciated that if she moved to Sydney with her mother that she would see her father as little as I am satisfied the circumstances would prescribe or, more importantly, just what the implications of that for her relationship with him and her future emotional development would be .
The question of equal time with each parent
66.The Husband was unquestionably committed to the view that the children should spend an equal amount of time in his care as in their mother’s care. On his case, as I have made clear already, that can only occur on the Sunshine Coast. However, whilst there is a rebuttable statutory presumption that it is in these girls’ best interests for their parents to share equally parental responsibility for them, there is no similar presumption that spending equal time with each parent is in their best interests.
67.Having accepted that the Wife has been the parent who has provided the majority of the actual physical and emotional parenting for these two girls in their lives to this point; that the girls most secure emotional attachment is to her; and that they expressed to the family report writer their own preferences to live more of the time with their mother than with their father – preferences that seemed soundly based in their own historic experience notwithstanding their respective ages at the time of expressing them – I am not persuaded that it is in the best interests of these two girls to make orders that provide for them to spend equal time with each of their parents. In arriving at this conclusion, I have also had regard to the fact that the parents of these two little girls remained at the time of trial in relatively significant dispute about parenting issues and property adjustment issues. I am not convinced that they could make an equal shared care arrangement work in the children’s best interests given the high level of parental co-operation widely accepted as being required to make such arrangements work in the children’s best interests.
68.Clearly now, I consider it in the best interests of these two girls that they continue to live principally with their mother. What remains to be determined is just what time they should spend with their father and in what circumstances that should occur.
The question of substantial and significant time with each parent
69.At this point, I will turn firstly to consider whether the children spending substantial and significant time with their father is reasonably practicable.
70.As things currently stand, the parents live close enough to each other for the girls to spend substantial and significant time with their father although they continue to live principally with their mother, just as they have been doing now on a regular and frequent basis for most of the time since their parents separated.
71.If the children were living with the Wife in Sydney and the Husband was still living in Queensland, I consider that the distance, the expense and the practical difficulties that would be involved in actually achieving substantial and significant time with the father prevent me from determining that it would be reasonably practicable.
72.Due principally to the commendable, apparently child focused position of the Wife, but also to the fact that the Court in determining parenting orders disputes is never confined to adoption of one of two polarised positions presented by the parties, the Court in this case is not just considering whether the children should live in Sydney with the Wife or on the Sunshine Coast with the Husband. Although it is clearly not her preferred outcome, the Wife presents the alternative proposal of remaining with the children in the Sunshine Coast area but with a slight reduction in the time that they currently spend with the Husband.
73.What then of the circumstances presented in respect of that alternative proposal, particularly as the Wife is concerned, in so far as determining the reasonable practicability of the children spending substantial and significant time with the Husband? The evidence allows me to find that the Wife was able to locate apparently suitable rental accommodation for her and the girls to occupy in the Sunshine Coast area after the separation. Prior to the trial, although having previously asserted difficulties with obtaining suitable work, the Wife actually secured a job in her chosen career field. At trial, it was giving her flexibility with respect to working hours and providing her with an income which she could use to support herself and contribute to the support of the girls. True, it is not the same level of income the Wife asserts she could earn in Sydney, but although the Wife said she had been for an interview for a well-paid job in Sydney, she did not put evidence before the Court that she had secured such a position or from which I could safely find that she necessarily would, although as I have already said, I expect she might be able to find a job in Sydney that pays more than what she is currently earning on the Sunshine Coast. However, she still intends upgrading her qualifications and that should certainly assist her to improve her earning capacity if she remains in Queensland.
74.The Wife was suffering anxiety at the time of the trial and was taking prescribed medication to help her with it. The anxiety was being treated by her GP and she had been seeing a psychologist. The Wife appears to have reported to Ms L that it was the disputation with the Husband as well as her desire to return to Sydney that was causing her anxiety. It is not surprising that a party to parenting and property adjustment litigation in this Court would experience anxiety, particularly as significant Court events such as trials approach. However, she did not present a case that it was overwhelmingly debilitating or that it was impacting on her parenting capacities to the extent that she was unable to implement the parenting arrangements that were in place, or to such an extent that her care of the children was compromised, or likely to be, without change. I am satisfied that the Wife was clearly dealing with the issue appropriately and would continue to, although I do accept that permitting her to take the children with her to live in Sydney as she wishes would probably speed a recovery for her from the symptoms.
75.The Wife does not have family members in the Sunshine Coast area to assist and support her. She wants to live near her mother and her sister and her sister’s husband and child. The maternal grandmother had a fairly prominent role in assisting the Wife and the Husband with their childcare when the family lived in Sydney and the girls were little. Although, the maternal grandmother is now in her mid-70’s, the Wife seeks that support again and would like to be near her to support her. Those are understandable feelings. The evidence is though that the Wife’s mother has visited her and the children many times in Queensland and has stayed for several days at a time on each visit. She is clearly retired and is financially very comfortable. I expect the maternal grandmother would continue to visit the Wife and girls in Queensland on a regular basis if they continue to live on the Sunshine Coast. Furthermore, I have no doubt that the Wife would travel to Sydney and visit her mother, taking the girls with her when she could, if they remain living in Queensland.
76.The Wife said that she had a large circle of friends still in Sydney and had fewer friends on the Sunshine Coast. Nevertheless, she has developed a friendship circle that could be expected to strengthen and grow if she stays on the Sunshine Coast.
77.As I have already observed, Ms L reported that the eldest girl, G, had expressed a preference for moving back to Sydney and said she missed the other members of her extended family there. The evidence in the form of the school reports showing how well she, like her little sister, has done at school since they have been going to school does not suggest that G is being affected to any marked extent in her day to day life by such feelings. I do not find it surprising that the child, being as close to her mother as the evidence suggests, would express a wish to a report writer to go back to Sydney knowing that it is her mother’s clear wish. Similarly, I do not find it surprising that a child of G’s age, or of her sister K’s age, would express feelings of “missing” members of their extended family who continue to live in Sydney. I am satisfied that is a completely natural emotion for a child to have when living away from people who they are fond of. Although it is hard to imagine, it is entirely possible that the two little girls do not like the lifestyle that living in the coastal community of the Sunshine Coast offers and provides for them. However, on all of the evidence before me, I am unable to find that the emotional and mental well-being of either of these two children is being so troubled by living on the Sunshine Coast as opposed to Sydney, or by them spending five days a fortnight with the Husband, such that would cause me to find that it is not reasonably practicable for them to continue spending substantial and significant time with the Husband by staying on the Sunshine Coast.
78.I am satisfied, in all of the circumstances of this case, that, as a matter of fact, the two children spending substantial and significant time with their father is reasonably practicable if they continue to live in the Sunshine Coast area but it is not if they live in Sydney.
What parenting orders should be made?
79.I turn back to the consideration of what is in the best interests of these two girls. Is it in their best interests to spend substantial and significant time with their father, which I am satisfied can only be appropriately achieved, in the circumstances, if they continue to live on the Sunshine Coast? Or is it in their best interests to be permitted to move with their mother to Sydney and to spend time with their father during school holidays and the occasional weekend or long weekend during school term when they fly to Queensland or he flies to Sydney.
80.As is very clear, the Wife would probably be happier if she was living back in Sydney, particularly if the two girls were living there with her too. However, she has certainly managed to get on with her life in Queensland since the separation and whilst these proceedings were pending. She has found suitable alternative accommodation. She has found a job in her chosen career field that gives her flexibility and a reasonable income with potential for more. She has a small circle of friends with whom she has continued to mix. She has continued to successfully parent her two daughters, assisting their good educational advancement, facilitating their attendance at healthy and appropriate extra-curricular activities and helping them maintain meaningful relationships with their father. There is much about all of those things to make the Wife happy and I am not satisfied that her parenting capacity is currently so compromised that it would be that much better, with better outcomes for the children, if she was living in Sydney. I am quite satisfied that the good outcomes the parents are delivering for their two daughters on the Sunshine Coast will continue to be delivered by both of them if they both continue to live there.
81.I am also satisfied that the two girls do have good relationships with their father that are soundly based and of meaningful significance in their lives. He, too, has continued to successfully parent them since his separation from their mother and has also contributed significantly to their healthy development. I am not persuaded that the two girls actually appreciate how fundamentally their lives would change if they went to live in Sydney with their mother with their father remaining in Queensland. I consider that the effect on them of one of the most significant changes, namely moving a long way away from their father and consequently spending a lot less time with him on a day to day basis, would be marked and detrimental to their emotional well-being. I do not consider it would be appropriately counter-balanced by them being able to spend more time with their maternal grandmother, their maternal aunt and their maternal cousin, even though that would be nice for them. I am satisfied that ample, suitable opportunities for the girls to maintain and further develop their existing relationships with their maternal extended family are likely to continue to be available even with them continuing to be resident on the Sunshine Coast.
82.I consider that parenting orders that provide for these two girls to continue to spend time with their father and be cared for by him on a very regular basis during school term as well as during school holidays are in their best interests. Such orders will allow the Husband to continue to be meaningfully involved in their schooling, their extra-curricular activities and their day to day development. Such orders will allow the girls to continue to know and experience their father as a day to day father, not just as an occasional holiday father. I am satisfied the Husband has the capacity to meet the responsibility that such orders will place upon him. He is not, I am satisfied, a parent seeking such time with his daughters simply motivated by a determination to reduce his child support obligations to the Wife.
83.In the end, I am satisfied that the girls’ best interests are met by making orders prefaced on them continuing to live with their mother on the Sunshine Coast and not being taken to Sydney to live. Such orders that provide for the girls to spend time with their father from after school on Thursday until before school the following Tuesday on a fortnightly basis, as they have now been doing for a relatively long time, are, in my determination, in their best interests. I am not persuaded by the fact that in mid-2011 the girls said to the family report writer that five days away from their mother was a little too long that the time they spend in their father’s care should now be reduced, when they are 10 and eight years of age respectively. Provision for the girls to have contact with their mother by phone and computer during the time they are in their father’s care addresses a residual need, if any, for the children to communicate with their mother whilst away from her. Of course, similar provision for contact with their father whilst they are in their mother’s care is also appropriate.
84.The Wife is likely to be disappointed with the outcome of this parenting orders dispute. That will require some sensitivity to be shown towards her by the Husband in their future co-parenting communication and arrangements. I am confident that he has the capacity to understand that and to be able to do it.
The Property Adjustment Proceedings
85.This Court may alter the property interests of parties to a marriage, making such order as the Court considers appropriate.[3] An order under s 79(1) though, cannot be made unless the Court is satisfied, in all of the circumstances, that it is just and equitable to make the order.[4]
[3] Family Law Act 1975 (Cth) s 79(1).
[4] Family Law Act 1975 (Cth) s 79(2).
86.The determination of whether it is just and equitable to make a property adjustment order begins by the identification of the existing legal and equitable interests of the parties in the property.[5] Legal principle must be followed and applied when exercising the discretion conferred by s 79,[6] and care must be taken not to conflate the s 79(2) question of whether it is just and equitable to make property settlement orders at all with the separate s 79(4) considerations that shape the particular orders to be made, if any are to be made.[7] However, as long as the s 79(2) question and the s 79(4) question are not conflated, the matters listed in s 79(4) may still inform the determination of the s 79(2) question.[8]
[5] Stanford & Stanford (2012) 247 CLR 108 at [37].
[6] Ibid at [38]-[39].
[7] Ibid at [40].
[8] Bevan & Bevan [2013] FamCAFC 116.
87.The High Court in Stanford recognised that in many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied. In Bevan and Bevan at [84] the Full Court of this Court observed that in many cases the just and equitable requirement is “effectively answered in the affirmative by the way the parties present their cases.”
88.In the present case, both the Husband and the Wife seek property adjustment orders. I am satisfied that in doing so each considers that property adjustment as between them is necessary to achieve a just and equitable division of the property interests they acquired during the course of their marital relationship. I am equally satisfied that property adjustment by order of this Court will be necessary to achieve a just and equitable outcome in respect to the property of the parties now that their marriage relationship is ended.
What is the property of the parties or either of them?
89.In his written submissions dated 6 June 2012, counsel for the Wife said “for the most part the wife agrees with the summary or schedule of assets and liabilities annexed to the submissions on behalf of the husband as amended.” He went on to say that “the primary points of contention relate to the payment to [the Wife’s father] of $250,000 and the liabilities of the husband. The wife accepts that the sum of $69,412 referable to her paid legal fees should be included in the pool.”
90.The annexed schedule referred to, updated to the end of the trial, but leaving out the matters said to be in contention, is as follows:
Item No. Description of Property Ownership Value 1 Bankwest Telenet Saver A/C …257 Husband $334.00 2 UBank A/C …91 Husband $43.00 3 ING Direct A/C …114 Husband $1,747.00 4 ING Direct A/C …456 Wife $216,500.00 5 Westpac A/C Wife $2.00 6 Coin Collection Husband $15,000.00 7 Subaru motor vehicle Husband $22,000.00 8 Toyota motor vehicle Husband $54,045.00 9 Volkswagen motor vehicle Wife $28,500.00 SUBTOTAL $338,171.00
91.The annexed schedule did also include a piece of property, the value of which the parties were unable to agree upon. It was:
Item No. Description of Property Ownership Value asserted
by HusbandValue asserted
by Wife10 Scooter Husband $3,000 $2,000
92.Counsel for the Husband submitted that I would be incapable of determining the value of the motor scooter on the evidence available and proposed that the value be agreed at $2,500. I am not aware of such agreement having occurred. Therefore, it is correct that I am incapable of determining the value of the scooter. There is no opinion evidence from a properly qualified person that, falling within the provisions of s 79 of the Evidence Act 1995, supports a finding of value by me. The Wife does not seek the transfer of the scooter to her. She is apparently content for the Husband to retain it. In the absence of the valuation evidence, I could order the scooter to be sold by the Husband and the proceeds to be divided pursuant to a determined percentage. However, as the Husband wants to retain the scooter and both parties assert that the scooter’s value is only a few thousand dollars, I consider it appropriate simply to have regard to the scooter, having a value of around a few thousand dollars, being retained by the Husband in the overall determination of orders that are just and equitable. I consider that s 75(2)(o) of the FLA permits such an approach.
93.The parties also agreed that they each had the following superannuation interests:
Item No Description Ownership Amount 11 Superannuation M Superfund Husband $118,430 12 Superannuation Wife $63,711 Total Super $182,141 94.In the annexed schedule the following liabilities are included:
Item No Description of Liability Owed by Amount of Debt 13 American Express Credit Card Husband $32,080 14 Citygroup Mastercard Credit Card Husband $40,387 15 Toyota Financial Services Husband $57,016 16 Credit Cards Wife $5,720 17 Loans from various people – mostly for payment of legal fees Husband $40,000 Subtotal $175,203
95.The parties do not agree as to how all these liabilities should be treated in the determination of orders that are just and equitable.
96.For the Wife, it was submitted that the Husband’s liabilities should not be taken into account in determining the net value of the property of the parties that is to be the subject of the property adjustment orders. It was submitted that as the evidence showed that the Husband had increased his credit card liabilities by $67,694 post-separation for which the Husband had given “neither an adequate nor proper explanation”, the expenditure should be considered unreasonable and not included in calculating net-divisible property.
97.At the same time, for the Wife it was submitted that the evidence established that during the same period the Husband has sold shares for just less than $32,000 and reduced his bank account balances by about $35,000, and had spent that total of $67,000 as well as increasing his credit card liabilities. It was then submitted that having regard to the Husband’s income and his expenditure requirements, the $67,000 he had spent using his cash savings and the sale proceeds of shares should be notionally added back when calculating the net-divisible property.
98.For the Husband, it was submitted that adopting the approach contended for on behalf of the Wife would be to notionally include approximately $121,780 of post-separation expenditure as property of the Husband. It was submitted that would be “grossly unfair” in the circumstances, particularly where the Wife herself had reduced the cash held on the sale of the parties’ Sydney home post-separation from $676,000 to $216,500.
99.Before the High Court’s decision in Stanford, as a point of principle, notionally including in the net-divisible property of the parties amounts for cash or property already disposed of was considered to be the exception rather than the rule. It could occur, as part of the judge’s discretionary determination of appropriate orders that were just and equitable in certain circumstances.
100.However, since Stanford was decided, the discretionary treatment of what are generically described as “add backs” has been further discussed by a few of my judicial colleagues on this Court[9] as well as by the Full Court of this Court.[10] Young J proffered the view that the decision in Stanford would likely “ensure a change in approach” to the way in which the issue of “add backs” is dealt with. Murphy J in Bowe & Bateman observed that the principles relating to “add backs” “may need to be examined in light of the decision of the High Court in Stanford”. In Bevan & Bevan at [79] the Full Court pointed out that an amount notionally added back to a pool of property being considered is not likely to be property itself and thus is not amenable to alteration or adjustment pursuant to s 79. The Full Court observed that it is important to deal with such matters carefully and that s 79(4) and, in particular, s 75(2)(o) give ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
[9]See Watson & Ling [2013] FamCA 57 and Bowe & Bateman [2013] FamCA 253 per Murphy J and Sebastian & Sebastian (No5) [2013] FamCA 191 per Young J.
[10] See Bevan and Bevan [2013] FamCAFC 116 at [79], a decision made 8 August 2013.
101.In this case, the Husband’s evidence was that the money he had expended post separation was spent on expenses such as legal fees, child support liability, spousal maintenance and his own general living expenses. His property (the cash he held in accounts and the sale proceeds of his shares) has therefore been used, partly, to support the Wife and the children. Had it not been, there would, in all probability, have been more property to be subject to adjustment between the parties. Rather than being persuaded that I must consider the amount expended as notional property, I consider the Husband’s use of this property post-separation to be a matter to consider when I am considering the parties’ various contributions pursuant to s 79(4). As I indicated to counsel for the Wife during his cross-examination of the Wife, I was not satisfied that the evidence supported the exceptional course of notionally including the amount expended in the pool of property. Similarly, I am not persuaded that I should leave out the Husband’s credit card liabilities for the same reasons.
102.The parties did agree that the amount of $69,412 spent by the Wife on legal fees up to the time of the trial should be notionally included in the pool of property against which s 79(4) considerations are made. Whilst for the Husband, it was accepted that the $53,062 he had spent on legal fees should be similarly notionally included, that amount appeared to be subsumed in the $67,000 the Wife was submitting should be notionally included. As I have not been persuaded to notionally include that amount, I will nevertheless notionally include the amount of $53,062 so as to treat the Husband and the Wife equally in respect of their expenditure on legal fees up to the point of the trial.
103.Accordingly, the following amounts will be notionally added to the pool of property against which the s 79(4) matters are considered and weighed.
Item No Legal fees paid to be notionally considered in the pool Amount 18 Husband’s legal fees $53,062 19 Wife’s legal fees $69,412
104.As I have already noted, there was one further substantial issue between the parties about the pool of property against which s 79(4) considerations should be undertaken. The issue was just how to deal with an amount of $250,000 that the Wife paid to her father just seven days before the parties’ separation. The amount came from the proceeds of sale of the parties’ former Sydney home and was paid by the Wife to her father without the knowledge or consent of the Husband. The Wife’s case was that she was simply repaying a liability that the parties had to her father and that it should now be disregarded completely. The Husband’s case was that the Wife’s father had actually gifted the sum of $250,000 to the parties at the time that they bought their Sydney home and that it was inappropriate to give it back to him. Accordingly, for the Husband it was argued that the amount should be notionally included in the pool of property against which the determination of appropriate, just and equitable property adjustment orders is assessed.
105.The parties agreed that they purchased their former Sydney home in Suburb H in or around October 2005. They bought the property using the net proceeds of sale of a property they had just sold in Suburb W, a further sum of $400,000 they borrowed from a financier through a mortgage broker and the sum of $250,000 that came from the Wife’s father, who, as I have noted, is a very wealthy retired former CEO of a large multinational company.
106.In her affidavit evidence, the Wife asserted that the money had been advanced to the parties by her father as a loan to assist them in purchasing that property. Her father also gave affidavit evidence about the issue. He said he paid the sum of $250,000 to the Wife in late August 2005 having previously agreed to loan that amount to her to assist her in the purchase of the property. He said he decided the money would be loaned to his daughter, rather than gifted, and that it was repayable to him when “the parties were able to do so.” He said the amount of $250,000 was repaid to him by his daughter when he was visiting Australia in July 2010.
107.In his affidavit evidence, the Husband said the money was a gift from the Wife’s father. He said that when he and the Wife made application for the loan from the financier they were required to satisfy the lending institution that the sum of $250,000 received from the Wife’s father was a gift and was not required to be repaid. He put into evidence a copy of a letter dated 18 August 2005 purporting to bear the signatures of the Wife’s father and his wife which says:
To Whom It May Concern
This letter is to confirm that I [Mr F]… am giving my daughter [Ms Richards] an unconditional gift of $250,000 to help with the purchase of the property at ….[Suburb H].
108.The Wife’s father in the USA was cross-examined by telephone. He denied having signed the letter of 18 August 2005, saying he was overseas somewhere at that date and that his current wife had signed the document without his authority and that he only became aware of the letter when he got back from overseas. He asserted that his wife had signed it because of the urgency of the moment and his daughter was pressing for it. He said he did not know that his daughter was intending to separate from the Husband at the time that she repaid the money to him or that she had repaid him without telling the Husband of her intention. He said he did not know that the Husband was first told about the repayment two months later and that it was just a coincidence that he produced a letter from a tax attorney (that I ruled inadmissible at the start of the trial) that was written at the same time as the Wife’s lawyers informed the Husband of the repayment.
109.Under cross-examination, the Wife agreed with the proposition that her father had paid to her sister at around the same time as he had paid to the Wife the same amount of $250,000. In agreeing, the Wife said “he does for one, what he does for the other.” She went on to agree that her sister had not repaid the amount to their father yet and said “no, she has not repaid him, they still own the house.” When asked by me why she had not told the Husband that she was intending to pay her father that sum of $250,000, the Wife’s response was that she did not do that because the Husband would get angry with her. I then asked her why she thought he would get angry if he knew it was a loan that was repayable when they sold the Sydney property. Her answer was “because he thought that my father should give us the money.”
110.When the Wife’s father was asked in cross-examination about the money he paid to his other daughter, he conceded that he had paid her the same amount and that it was on the basis of “the same deal, a loan. If they sell their place they repay me.” When asked what would happen if the sister did not sell her home, the Wife’s father said “if they don’t and I die, I suppose they don’t have to repay me.”
111.The Husband gave further oral evidence in chief about the issue. He said that the Wife had told him at the time in 2005 that her father was gifting them $250,000 to help them purchase the Sydney home. He said that he remembered being in the kitchen of the home sometime after they were living there when the Wife’s father was visiting them and they had a conversation about the matter. He said he thanked the Wife’s father for the generous gift that had allowed them to buy the home. He said that the Wife’s father patted him on the back and said that he was happy to help them out as they were doing a good job with his grandchildren. Under cross-examination, the Wife’s father denied that conversation.
112.The Husband also said that they had to obtain the letter that said that the amount was a gift at the request of the mortgage broker who told them it was required by the financier. The Husband also said that he would not have taken it as a loan from his father-in-law given they were already having to borrow $400,000 to complete the purchase of the property as he could not have coped with knowing they had $650,000 in liabilities at that time.
113.On balance, I find that the money was gifted to the parties by the Wife’s father and was not provided to them with an expectation that it was to be repaid. A number of matters of, or relating to evidence persuade me to that view. They are:
(i)That the Wife’s father paid the Wife’s sister the same amount at around the same time as paying the Wife but appeared to be not the least concerned about whether he is repaid by her or not in his lifetime;
(ii)That the amount was repaid to the Wife’s father several months after the property was sold and just one week before the parties’ mutual separation but without any discussion with the Husband at all and with notice only being given to him via solicitor’s letter several weeks after it was repaid;
(iii)I was not convinced of the honesty of the Wife’s answers as to why she did not discuss with the Husband the idea of repaying the amount to her father at the time that she did as I do not accept that the Husband would be angry if he knew all along that the amount was a loan that had to be repaid as opposed to being a gift to them;
(iv)I was, consequent, to that last factor, unsatisfied with the honesty of the balance of the Wife’s evidence about this issue;
(v)I was not convinced that the Wife did not tell her father of the pending separation from her Husband and I do not consider that her father would have required her to repay a large amount of money like $250,000 at such a delicate time when her financial security would have been so uncertain without some other purpose to the payment;
(vi)I was not convinced with the honesty of the Wife’s father’s evidence that he was not aware of the fact that his daughter and the Husband were about to separate nor his evidence that he was not aware of the Wife’s decision to repay him the money without discussing it with the Husband;
(vii)I was not convinced of the honesty of the Wife’s father’s evidence that the Husband had never thanked him for providing them with the money or his denials that he had acknowledged the Husband’s appreciation with a pat on the Husband’s back and an expression of acknowledgment of the Husband’s gratitude;
(viii)I was persuaded to the view that the Husband was being truthful in his evidence about the circumstances of receiving the money, his understanding of it being a gift, his conversation with the Wife’s father where he expressed gratitude for it and the circumstances surrounding the requirement of having to provide a letter of confirmation of gift to the financier who was providing lending finance to them.
114.Counsel for the Wife made the submission that even if it was a gift and not a loan that the Wife’s actions in repaying the full amount to her father amounts to a legitimate renunciation of the gift by her and a gift of the money back to her father. With respect, I do not accept that submission appropriately deals with the issue in all the circumstances. I consider the repayment of the sum of $250,000 gifted to the Wife five years before within several days of the parties’ separation, where the Wife did not tell the Husband of her intent before she acted nor of her action until several weeks later, to amount to such exceptional circumstances that the most appropriate way to deal with the issue in a just and equitable manner is to notionally include the sum in the net property pool against which the s 79(4) considerations are undertaken. Of course, I acknowledge that notionally including the sum of $250,000 in that pool means that the Wife’s father’s gift of that amount to the parties in 2005 will attract weight as a contribution made by the Wife in the process of determining the appropriate property adjustment orders. Indeed, no submission to the contrary was made on behalf of the Husband.
115.Accordingly, the pool of property and notional property against which I am going to consider and weigh the s 79(4) matters is valued at $710,645 gross but it also includes a motor scooter in the Husband’s possession worth a few thousand dollars. The total liabilities of the parties are $175,203 bringing the net figure to $535,442. The superannuation interests of the parties total $182,141.
Some relevant history and my findings about contributions
116.When the parties commenced their relationship in late 2000 the Wife owned an apartment in Sydney. It had a mortgage liability secured against it. She also owned a large quantity of shares in the company her father was working for. The Husband had approximately $20,000 worth of shares in listed companies.
117.The Wife’s evidence was that she sold the apartment in January 2002 and obtained $214,512 in net proceeds. She said she sold the shares in various lots during the years of her relationship with the Husband and that the total sale proceeds amounted to approximately $230,000. She said she contributed the proceeds to expenses of the marriage and the family, but as to $75,000 of the proceeds, she put it towards the purchase of another unit property at Suburb H that she and the Husband purchased.
118.The parties bought the H property jointly but the Wife contributed all the net proceeds of sale from her apartment and the $75,000 from the share sales. The Husband does not go as far as conceding that the Wife put in that $75,000 from the sale of shares, but he does not dispute it either. I am satisfied that she did.
119.The Husband accepts that the Wife was earning more than he was when they commenced their relationship. He says he believes she was earning about $100,000 per annum, but he does not say what he was earning at that time.
120.The H property was purchased for $635,000 and the parties borrowed $375,000 to put with the money that the Wife contributed to purchase the property. They each contributed equally to the mortgage repayments. Renovations were carried out. The Wife said she contributed $12,444 to the cost of those and that money was gifted to her by her father. She said she also purchased $6,751 worth of furniture. She said the Husband paid for improvements to the bathroom but does not say what that cost.
121.On the other hand, the Husband said that he paid $34,515 to the cost of those renovations but he does not give evidence as to where the money was sourced from.
122.There is little upon which I can determine which is the correct version. The evidence of the Wife, not really disputed by the Husband, is that her father also gifted her generous cash sums on a regular basis over the years but also for birthday and Christmas presents. Indeed, in addition to the $250,000 already dealt with, the Wife said that a further $223,500 came to her over the years, including $22,850 from her mother that she used to buy the motor car she possessed at the time of the trial, as well. This figure, she said, was in addition to the other gifts from her father of about $10,000 per year and payments of approximately $10,000 for each child each year that were used to put towards paying for their schooling and extra-curricular activities.
123.I accept that the Wife used the money she received from her father for family expenses, including paying half the mortgage repayments when she was not working full-time after the birth of their first child. I am satisfied that the Wife would have contributed as she said she did to the cost of improvements and the purchase of furnishings at the H property. I accept that the Husband also contributed to the cost of the H improvements, but I do not accept that he paid the entirety of the costs associated with that.
124.As I have already noted, the Wife did return to some part-time employment in Sydney after she had her first child and she contributed the income from that to the family’s needs. She was also the party who made the greater contribution to the parenting of the two children and the other homemaking tasks, assisted though by the Husband, as he could, outside of his full-time employment commitments.
125.When the parties moved to Queensland, they let out their Sydney property. For about eighteen months the Husband took receipt of the rent and used that, I accept, towards meeting the mortgage repayments in respect of that property, paying land tax that was levied against the property, as well as towards paying for the cost of a few improvements to the property before the parties sold it.
126.That property was sold by the parties in March 2010 and it netted $676,200. That amount was paid into a bank account in the Wife’s name and the Husband did not have access to it. That is the amount from which the Wife paid the sum of $250,000 to her father in July 2010. By the time of the trial, there was only $216,500 in that account. Allowing for the payment of $250,000, the Wife had therefore spent $209,700 from those sale proceeds at the time of the trial, some $69,000 of that, quite clearly, on her legal fees.
127.Accordingly, I consider that of the proceeds of sale of the property, the Wife has spent $140,000 post-separation on herself and the children in addition to $69,412 on her legal fees. This can be viewed in very much the same light as the money the Husband has spent post-separation using his credit cards and the sale proceeds of the shares. Those amounts together, it is to be remembered, totalled about $134,000, a little bit less than the Wife spent. He spent approximately $53,000 on legal fees, about $40,000 of which he borrowed. Accordingly, of the $134,000 he spent post separation from credit cards and share sales, approximately $13,000 was spent on legal fees.
128.I am satisfied that each of these factual matters is appropriately considered pursuant to s 79(4) when the various contributions of the parties are being considered and assessed. This post-separation period is also a time when the Wife has born a greater share of the parenting burden, having the children in her care for a consistently greater share of the time than the Husband.
129.I am satisfied that after weighing the contributions of the parties including their initial contributions, their financial and non-financial contributions during their ten year marriage and for the two years from their separation until the time of the trial, and their respective parenting and homemaking contributions, right through until the time of the trial, the Wife’s contributions, and those that were made through her by her parents’ gifts of money, must be recognised as being very much greater than the Husband’s.
130.Doing the best that I can in respect of assessing the contributions as against the non-superannuation net divisible property and notional property already noted by me as having a value of $535,442 (plus the motor scooter in the Husband’s possession), and converting that finding of far greater overall contributions by the Wife to a notional division of that “pool” in the discretionary process of determining what adjustment orders are just and equitable, I consider a notional division of that “pool” as to 75/25 in favour of the Wife is an appropriate reflection of the disparity in their contributions.
131.In respect of the parties’ superannuation interests, not having any evidence before me as to the value, if any, of their respective interests at the commencement of their relationship, I am satisfied that their direct and indirect contributions in respect of the total of all of their interests in superannuation are appropriately assessed as equal. Each of them has been able to work in employment throughout the period of their relationship and since the birth of their children, through the support and assistance of the other. I consider it safe to infer that the Husband’s superannuation interest is more valuable than the Wife’s because of the fact that he has worked more than the Wife, and on a higher income than her, since the children were born, as she has borne most of the parenting responsibilities in that time. Consequently, based on their respective contributions, I consider a notional equal division of their superannuation interests would be appropriate as well as just and equitable.
132.Dividing $535,442 in shares as to 75 per cent to the Wife and 25 per cent to the Husband would result in the Wife receiving notionally approximately $403,500 worth of property and notional property and the Husband receiving notionally $131,942 plus the motor scooter. Dividing $182,141 worth of superannuation interests equally between them would see the Wife retaining her superannuation interests that were valued at $63,711 and being entitled to receive a split of $27,359.50 of the Husband’s superannuation interest.
133.In considering what order, if any, to make pursuant to s 79(1), I am also required to consider, in addition to the contributions of the parties as set out in s 79(4)(a)-(c), the matters set out in s 79(4)(d)-(e). Those matters are:
·The effect of any proposed order upon the earning capacity of either party to the marriage; and
·The matters referred to in s 75(2) so far as they are relevant; and
·Any other order made under this Act affecting a party to the marriage or a child of the marriage; and
·Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage.
134.I have regard to the fact that the parenting orders I intend to make will provide for the children to continue living principally with the Wife and spending time with the Husband for half of their school holidays and for five days each fortnight during school term. The Wife will still have the majority of the care of the children on an ongoing basis. She will, by remaining on the Sunshine Coast, not be able to earn as much income as the Husband will continue to earn, although I do accept that she intends to upgrade her qualifications. That will enable her to increase her income. I do not expect, however, that will happen quickly or that her income will even then be as much as the Husband will continue to earn after she so qualifies.
135.I have regard to the fact that the Husband was assessed, at time of trial, as liable to pay child support to the Wife in the amount of $422 per week and, as long as he continues to earn income in the amount that he currently is (as I am satisfied he will do into the future), it is anticipated that he will continue to contribute to the financial support of his daughters to that sort of extent whilst they are in the Wife’s care.
136.The Wife will effectively be receiving most of the property of the parties having regard to the contributions assessment I have made.
137.At the time of the trial, the Husband had re-partnered and was spending a lot of his time outside work with his new partner. They were not actually cohabiting as such at that time though.
138.I accept that the Wife, having been the beneficiary of generous financial support from her wealthy father in the past, could be expected to continue to receive such support in the future. Given that the difference between her current income and earning capacity and the Husband’s is directly related to the decisions the parties made as an intact couple to have two children and for the Wife to principally care for them, at this point in my determination process, I do not attribute a great deal of weight to what might be considered the Wife’s relative good fortune in coming from a wealthy family of origin and to have been able to sustain good relationships with her parents.
139.I consider it appropriate, having regard to all of these additional factors, to make property adjustment orders based on an additional 5 per cent division of the property and notional property in favour of the Wife and an additional 10 per cent division of the combined superannuation interests in her favour. I consider this appropriate in respect of the superannuation interests as the compulsory superannuation contributions made by employers are directly related to the level of salary of the employee and the wife’s income from which her superannuation contributions are determined is likely to be less than the Husband’s for some years yet.
140.I calculate that to give the Wife an additional $26,772 of the property and notional property pool and another $18,214 of the parties’ combined superannuation interests.
141.The outcome of this determination to this point is that the Wife would receive $430,272 in property and notional property and $45,573 of the Husband’s superannuation in addition to retaining her own superannuation interests. I also consider it appropriate for her to receive some further adjustment in respect of the fact that the Husband retains the motor scooter and no value is included in that amount of $535,442 for that piece of personal property.
142.The Wife at the time of the trial retained the following:
·The remaining balance of proceeds of sale of the Sydney property at $216,500;
·$2.00 in another bank account;
·A Volkswagen motor vehicle valued at $28,500;
·The benefit of having spent $69,412 on legal fees;
·The notional property attributed to the $250,000 she paid to her father;
·Credit card debt of $5,720.
143.The net total of these is $558,694.
144.The Husband retained the following:
·Bank account balances totalling $2,124;
·A coin collection worth $15,000;
·A Subaru motor vehicle worth $22,000;
·A Toyota motor vehicle worth $54,045;
·A motor scooter worth a few thousand dollars;
·Miscellaneous credit card and other debt of $169,483;
·The benefit of having spent $53,062 on legal fees.
145.The net total of these is -$23,252 plus the motor scooter.
146.I consider it appropriate to make property adjustment orders that require the Wife to cause the Husband to be paid an amount from the money that remains held in the account, being the balance of the sale proceeds of the Sydney property. I consider the amount of $126,500 is an appropriate amount having regard to all of matters I have discussed. In addition, I consider it appropriate to make orders providing for the parties to retain the property that is otherwise in their respective possession and retaining the liabilities in their respective names and for each of them to indemnify the other against any liability for those debts in the other party’s name.
147.In addition, I consider it appropriate to make orders that provide for a split of an amount of $45,573 of the Husband’s superannuation interest in favour of the Wife.
148.I determine that making orders that give effect to the matters I have just set out will not only be appropriate but also will be just and equitable in all of the circumstances of this case.
149.Although in written submissions for the Husband it was said that the Trustees of his superannuation fund were going to be given notice that a superannuation splitting order was being sought, there is no evidence that has actually happened. Accordingly, I will make the superannuation splitting order but order that its operation be suspended for 21 days and further order that the trustees be served with notice of the order and given liberty to apply to the Court in respect of such order within that 21 day period if they seek to be heard on the order.
I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 December 2013.
Associate
Date: 13 December 2013
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