RISOVIC & RISOVIC
[2011] FamCA 806
•21 September 2011
FAMILY COURT OF AUSTRALIA
| RISOVIC & RISOVIC | [2011] FamCA 806 |
| FAMILY LAW – CHILDREN – Parental responsibility – Best interests of the children – Whether the presumption of equal shared parental responsibility has been rebutted –Where the mother alleges that the father is violent – Finding that on the balance of probabilities, the mother was being truthful in respect of the allegations of the father’s violence – Whether the children should spend substantial and significant time with the father – Finding that it is reasonably practicable for the children to spend time with the father – Finding that it is in the best interests of the children that they spend time with the father – Order that the parties have equal shared parental responsibility for the children FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – What the contributions in terms of s 79(4) of the parties before, during and after their cohabitation convert to in terms of a notional percentage division of the divisible property – Finding that the notional percentage is fixed at 56 per cent in favour of the husband and 44 per cent in favour of the wife – Whether there are any adjustments to that notional percentage having regard to the s 79(4)(e) considerations – Where the wife earns less income than the husband – Court concludes that the wife will have the principal responsibility for the children, practically and financially, and that this will impact her earning capacity in the future and her capacity to accumulate superannuation – Where the husband will not experience the same limitation on his earning capacity or his capacity to accumulate superannuation – An adjustment of no more than 10 per cent in favour of the wife is necessary |
| Family Law Act 1975 (Cth) s 60CC, s 60CA, s 61B, s 61DA, s 65DAC, s 65DAA, s 94(4), s 75(2) |
| B & B: Family Law Reform 1995 (1997) FLC 92-755 Bilous v Mudaliar & Anor (2006) 35 FamLR 55 Chorn and Hopkins (2004) FLC 93-204 Coghlan & Coghlan (2005) FLC 93-220 Cowley & Mendoza [2010] FamCA 597 Ellem & French [2009] FamCAFC 22 Goode v Goode (2006) FLC 93-286 Hickey & Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 In the Marriage of Townsend (1995) FLC 92-569 Kowaliw (1981) FLC 91-092 Marsden and Winch (No.3) [2007] FamCA 1364 MRR v GR (2010) 84 ALJ 296 Omacini and Omacini (2005) FLC 93-218 Preston and Preston [2011] FamCA 618 Pierce (1999) FLC 92-844 Williams & Williams [2007] FamCA 313 Wood & Wood [2007] FamCA 526 |
| APPLICANT: | Ms Risovic |
| RESPONDENT: | Mr Risovic |
| FILE NUMBER: | BRC | 1197 | of | 2009 |
| DATE DELIVERED: | 21 September 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 14 and 15 April 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms McDiarmid |
| SOLICITOR FOR THE APPLICANT: | Springwood Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hanlon |
| SOLICITOR FOR THE RESPONDENT: | Jones Leach Hawley Solicitors |
Orders
Parenting
That all previous parenting orders shall be discharged on 3 October, 2011.
That the mother and the father have equal shared parental responsibility for the children, B born … 2003 and C born … 2005.
That the said children live with the mother.
That commencing 3 October, 2011, the said children shall spend time with the father at all such times as agreed by the mother and the father but in the absence of such agreement as follows:-
(a)during school term, from straight after school on Thursday afternoon until the commencement of school the next morning in the first week of every two weeks; and
(b)during school term, from straight after school on Thursday afternoon until 5:30 pm on the following Sunday afternoon (or until 5:30 pm on the following Monday afternoon if that Monday is a Public Holiday) in the second week of every two weeks; and
(c)during the 2011-2012 Christmas school holidays, for an initial period of 3 full days and nights followed by 2 periods of 4 full days and nights followed by 1 period of 5 full days and nights with at least 4 full days and nights between each such period, the scheduling of such periods to be agreed between the parties but in the absence of agreement as nominated in writing by the father no later than 3 full weeks prior to the commencement of those school holidays; and
(d)for half of all of the school holidays that fall at the end of terms 1, 2 and 3, commencing at the end of first term in 2012, to be the first half in 2012 and all even numbered years thereafter and the second half in 2102 and all odd numbered years thereafter; and
(e)during the 2012-2013 Christmas school holidays, for 3 periods of one full week with at least one full week between each such period, the scheduling of such periods to be agreed between the parties but in the absence of agreement as nominated in writing by the father no later than 3 full weeks prior to the commencement of those school holidays; and
(f)for half of every Christmas school holiday period commencing 2013-2014, being the first half in 2013-2014 and every alternate year thereafter and the second half in 2014-2015 and every alternate year thereafter, and
(g)each year, from 5:30 pm on Saturday the day before Father’s Day until 5:30 pm on Father’s Day if they are not otherwise spending time with him pursuant to these orders; and
(h)each year, on each of the boys’ birthdays, on the father’s birthday and on each of the paternal grandparents’ birthdays from straight after school until 6:00 pm if on a school day or from 11:00 am to 4:00 pm if on a weekend or during a school holiday if they are not otherwise spending time with him pursuant to these orders; and
(i)for Christmas Day 2011 and 2012 from 11:00 am to 5:00 pm if they are not otherwise spending time with him pursuant to these orders.
That should the children be spending time with the father pursuant to paragraph 4 (b) or (d) of these orders on the weekend of Mother’s Day in any year then they shall return to the mother’s care at 5:30 pm on the day before Mother’s Day.
That should the children be spending time with the father pursuant to paragraph 4 (a) – (f) of these orders on either of the boys’ birthdays, the mother’s birthday or on either of the maternal grandparents’ birthdays then they shall return to the mother’s care from straight after school until 6:00 pm if such day is a school day or from 11:00 am to 4:00 pm if such day is on a weekend or during a school holiday.
That should the children be spending time with the father pursuant to paragraph 4 (d) and (e) of these orders on Christmas Day 2011 and 2012 then they shall return to the mother’s care from 11:00 am to 5:00 pm on that day.
That the children’s transition from the care of their mother to the care of their father and back to the mother pursuant to these orders shall take place through the school where these orders facilitate same but where transition is to take place other than at the commencement or conclusion of school it shall take place at the mother’s residence with the father or any person agreed in advance between the mother and the father returning the children to the mother or collecting the children from the mother at her residence.
That for the purposes of the parties determining the meaning in these orders of “half” in respect of school holiday periods, the school holidays shall be treated as starting at midnight at the end of the last day of school before the holidays and ending at midnight at the beginning of the first day of school after the holidays and the father’s half of the holidays, worked out having regard to that meaning, shall start and end at 5:30 pm on the relevant days.
The children shall communicate with the father by telephone whilst they are living with the mother between 6:00 pm and 7:30 pm each Monday and Wednesday night during school term and each Monday, Wednesday and Friday night during school holidays.
The children shall communicate with the mother by telephone whilst they are spending time with the father between 6:00 pm and 7:30 pm each Monday, Wednesday and Friday night during school holidays.
For the purposes of telephone communication pursuant to paragraphs 10 and 11 of these orders, the parent with whom the children are living or spending time shall cause the children to call the other parent on that other parent’s land line phone number and the children shall be permitted to speak with the other parent for as long as the children wish to, up to a maximum of 5 minutes per child on each occasion, and the children shall be given total privacy for that purpose.
The father shall forthwith acquire at his expense an exercise book that is to be used as a means of facilitating written communication between the parties and which shall go with the children as they transition between the care of each parent and the father shall provide, at his expense, a replacement for that book each time it requires replacement.
That each of the parties shall keep the other party informed as to their residential address, land line telephone number and mobile telephone number and shall advise the other party in writing within 72 hours of change to any of those.
The parties shall keep the other party informed as to the name, address and telephone number of any medical, dental or allied health practitioner that he or she takes either of the children to see as well as to the purpose for the visit as soon after the visit as it is reasonably practicable to inform the other parent and these orders authorise each of the parents to be able to obtain any information from any such medical, dental or allied health practitioner at his or her discretion and expense, if any, relevant to that practitioner having seen that child.
That each of the parents is by these orders authorised to attend at any school the children attend from time to time and at any extra-curricular educational, sporting, cultural or religious activity the children attend from time to time, on any occasion that parents are invited, or are otherwise welcome, to attend.
That each of the parents shall refrain from denigrating the other parent, the other parent’s partner or any member of the other parent’s family to or within the hearing of either or both of the children and shall use his and her best endeavours to prevent the children from hearing other persons denigrating the other parent, the other parent’s partner or any member of the other parent’s family.
That the mother shall ensure the children attend and complete an educational program by the end of 2012.
Property
That within 45 days of the date of these orders the husband shall:-
(i)pay to the wife the sum of $236,274; and
(ii)do all such acts and things and sign all such deeds, documents and instruments as may be necessary to transfer to the wife all his right, title and interest in the real property situated at D Street, Suburb E being Lot … on RP … Parish F, County of G.
That contemporaneously with the husband’s complete compliance with paragraph 19 of these orders the wife shall do all such acts and things and sign all such deeds, documents and instruments as may be necessary to refinance the Commonwealth Bank of Australia loan for which the husband and the wife are jointly liable and she shall cause the mortgage securing that loan that encumbers the real property situated at D Street, Suburb E being Lot … on RP … Parish of F, County of G to be discharged.
That other than for the sole purpose of compliance with paragraph 19 of these orders, until such compliance, the husband is restrained from selling, encumbering or further encumbering, transferring or otherwise dealing with any of his right, title and interest in the following real properties:-
(i)H Street Crescent, Suburb I being Lot … on RP … Parish of F County of G;
(ii)J Street, Suburb I being Lot … on RP … Parish of F County of G.
That in default of the husband’s compliance with paragraph 19 of these orders then one or both of the real properties referred to in paragraph 21 of these orders shall be sold and the husband shall discharge his obligation to comply with paragraph 19 of these orders, in addition to paying the wife interest in accordance with the Family Law Rules on any amount outstanding pursuant to that paragraph, from the net proceeds of sale of either or both of the real properties listed in paragraph 21 of these orders.
That should either or both of the real properties have to be sold pursuant to paragraph 22 of these orders then the husband shall cause the property or properties to be sold by private treaty or auction within four months of his default.
That the balance of any bank account held in the joint names of the parties shall be divided as between the parties as to 54 per cent to the wife and as to 46 per cent to the husband and the account shall be closed.
That save as otherwise provided in these orders the wife shall retain ownership of all items of personalty, chattels, furniture and furnishings, motor vehicles, jewellery and bank accounts in her possession or sole name and she shall also retain all of her member entitlements in any superannuation fund.
That save as otherwise provided in these orders the husband shall retain ownership of all items of personalty, chattels, furniture and furnishings, motor vehicles, jewellery and bank accounts in his possession or sole name and he shall also retain all of his member entitlements in any superannuation fund.
That the wife indemnifies and shall keep the husband indemnified against any liability in respect of her credit card debt and her debt to her parents and any other debt in her sole name.
That the husband indemnifies and shall keep the wife indemnified against any liability in respect of his debt to his parents and any other debt in his sole name.
That in the event that the husband or the wife or either of them fails, refuses or neglects to execute any document or do anything necessary to give effect to these orders, pursuant to s.106A of the Family Law Act 1975, the Registrar of the Brisbane Registry of this Court is hereby appointed to execute any deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and effect to the operation of the deed or instrument and the sworn affidavit of the solicitor for the non-defaulting party deposing to the circumstances of the failure, refusal or neglect of the defaulting party shall be sufficient evidence of same for the purposes of the Registrar acting as authorised by this paragraph.
IT IS NOTED that publication of this judgment under the pseudonym Risovic & Risovic is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1197 of 2009
| Ms Risovic |
Applicant
And
| Mr Risovic |
Respondent
REASONS FOR JUDGMENT
In 2002, Mr. Risovic married Ms. Risovic in Brisbane and they began to live together. Mr. Risovic had been born and raised in Australia of Country K parents and Ms. Risovic had been born and raised in Country L of Country K parents, coming out to Australia with her family in 1994.
When they married, each owned property already, but Mr. Risovic owned more than Ms. Risovic. They were also both working in paid employment. Neither had been married before.
They separated for several months in 2006 and again, finally, on 5 October, 2008 after six and a half years of living together. Their marriage was dissolved in April, 2010. When they separated, the couple had two little boys. B, who they call “[B]”, was born in 2003 and C, who they call “[C]”, was born in 2006. Those boys are now aged 8 and 4 (almost 5) respectively. They have been living with their mother since their parents separated.
The Risovic’s have not been able to agree on how much time the boys are to spend in their father’s care on an ongoing basis or as to the division of their property between them.
Mr. Risovic would have the boys living with him and their mother on an equal shared care arrangement if he could, whilst Ms. Risovic says the boys should continue to live with her and to spend time with their father every second weekend and for an overnight visit during the other week, as well as for week long periods during the school holidays. The resolution of that dispute is, of course, to be determined with mandatory regard to the best interests of the children as the paramount consideration.[1]
As to the division of their property, Mr. Risovic says they have $888,913 worth of net assets which should be divided between them as to 70 per cent in his favour and as to 30 per cent in his former wife’s favour. Ms. Risovic says they have $940,764 worth of net assets which should be divided as to 50-60 per cent in her favour and as to 40-50 per cent in her former husband’s favour.
In respect of the property division, the issues that must be decided in this case in order to determine just and equitable orders include:-
(i)whether each of the parties owe their parents money and, if so, how much does each owe and what was the money they were lent by their parents used for;
(ii)how much the husband owed in respect of mortgage debt on the property he owned at the time of the marriage;
(iii)did the wife’s sister pay the wife sufficient money on the sale of the property they jointly owned at the time of the marriage and, if not, should there be, in respect of that, an amount notionally added to the pool of property to be divided between the parties;
(iv)whether the wife’s refusal to sign a contract for the sale of one of their properties post-separation at a price that was higher than the property ultimately sold for has a consequence for the wife in terms of the division of their property;
(v)what the contributions (in terms of s.79(4) of the Act) of the parties before, during and after their cohabitation convert to in terms of a notional percentage division of the divisible property;
(vi)what adjustment to that notional percentage division, if any, should be made having regard to the matters that must be considered pursuant to s. 79(4)(e) of the Act.
THE PARENTING ORDERS
Relevant Background
When B was born, the mother took five months leave from her employment and cared for him full-time. After she went back to work B was cared for principally by his paternal grandparents whilst the mother and the father were at work.
When C was born, the mother took a full year off work and cared for both boys full-time. During their separation in 2006, B spent relatively little time with the father and C spent virtually no time with him.
When the mother went back to work and the parties were reconciled, again the paternal grandparents assisted in caring for the little boys whilst the mother and the father were at work.
The mother and the father disagree about the level of care that the father provided to the boys during cohabitation. The mother says the father rarely, if ever, changed the boys’ nappies or bathed them as babies. She says he did not do much else to provide parental care to them. The father says he did change nappies and bathe the boys as well as preparing meals for them from time to time. I do not consider that I need to resolve this factual dispute to determine the appropriate parenting orders to be made in this case. Whether the father did or did not do those things is not, in my view, determinative of the matter.
At separation, the mother and children left the family home and the father did not see the children for several weeks. Soon after, they executed a written ‘parenting plan’ at the mother’s insistence. Pursuant to that plan, the boys spent time with the father from 3:00 pm each Friday until 6:00 pm each Saturday and for a few hours on Wednesday evenings.
From September, 2010, pursuant to interim orders of this Court, the midweek time the boys spent with the father was extended overnight until Thursday mornings, providing for the boys to spend two nights per week and one full day in the father’s care.
Clearly, the mother has been the parent who has provided the principal amount of care to the children both during the cohabitation of the parents and since their separation. Consequently, it is with the mother that the boys have their most significant attachment at this point in their lives. That was confirmed by the evidence of the observations made by the single expert, Mr. N, Consultant Social Worker, and Ms. M, Family Consultant.
The Applicable Principles
Each of the parties seeks different parenting orders from the Court. I must determine the parenting orders that are to be made pursuant to the specific statutory framework of Part VII of the Act. The best interests of the subject children being my paramount consideration, I am to determine how those best interests are to be met by consideration of the matters set out in s.60CC(2),(3) and (4) of the Act. “Primary” and “Additional” considerations are expressly listed. The breadth of the enquiry, though, is highlighted by the inclusion of s.60CC(3)(m) which requires me to consider “any other fact or circumstance that the Court thinks is relevant”.
The determination of parenting orders must also be performed against the expressly stated Objects of Part VII of the Act and the Principles underlying them.[2] The exercise is discretionary. I am to take into account all factors perceived to be of importance and the weight to be attached to any one consideration will depend on all the circumstances of the case. Whilst it might be ideal to conclude that it is in the best interests of children to have as much contact with each parent as is practicable, on a case by case approach countervailing factors may exist which indicate that conclusion as not in the best interests of the children. Where they do, the ideal must yield to reality.
The following steps, in the order set out, are in my respectful view, those now required to be taken in determining this parenting orders dispute[3]:-
·apply the presumption of equal shared parental responsibility (s 61DA (1))
·determine whether there is abuse of a child or family violence, which means that the presumption does not apply( s 61DA(2))
·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility (s 61DA(4))
·if the presumption applies:
·determine whether it is in the child’s best interests for there to be an order for equal time with each parent (s 65DAA(1)(a))
·make findings as to the matters set out in section 65DAA(5) which are as follows:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
·as a result of this enquiry, make findings as to whether an “equal time” order is reasonably practicable(s 65 DAA (1)(b))
·if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order (s 65DAA(3))
·if neither an equal time order, nor a substantial and significant time order, is to be made, proceed to determine what orders are in a child’s best interests.
Consideration of the relevant matters set out in s. 60CC will take place, to varying degrees, in the process of making the determinations required at a number of points along the statutory pathway just set out. As I noted earlier, the considerations listed in s.60CC(2) and (3) are divided into “Primary considerations” and “Additional considerations”. The two “primary” considerations set out in s 60CC(2) are to “be accorded particular importance in determining what order will best promote the interests of the child.”[4] That they are separately listed and described as “primary considerations” demands as much. The list of “additional” considerations set out in s.60CC(3) is long. Section 60CC(4) also sets out further matters that must be considered. At each step when best interests determinations are to be made, as I noted earlier on, weight is to be given, in amounts determined to be appropriate, to all of those considerations that are relevant to the particular children in all of the factual circumstances of the case
Parental Responsibility and Family Violence
I will be making parenting orders in this case. Accordingly, I must apply a presumption that it is in the best interests of B and C for their parents to have equal shared parental responsibility. The presumption does not apply though if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence as that term is defined in the Act.[5]
The mother gave evidence that the father did things that would, if found to have happened, constitute “family violence” and “abuse” within the meaning of the section. She said that he head butted her, smacked her across the face and hit her on the head at different times during their cohabitation. She said that he hit B with a belt on one occasion, the belt buckle striking the child’s head. She said that the father threatened her with physical harm on many occasions. She said that he even took off his wedding ring and beat it flat and out of shape with a hammer in front of her.
The father denied all of the mother’s allegations save for admitting that he smacked her across the face in retaliation for her smacking him on the face. He conceded that he was made the subject of a Domestic Violence Family Protection order for two years from 2005 to 2007 following that incident. Without more, that fact alone is enough, in my view, for the s.61DA(1) presumption not to apply.
I do not accept the father’s denials of the other allegations made by the mother. After observing both parties in the witness box and in Court over the two days of the trial, and considering all of the evidence before me, I formed the view, on the balance of probabilities, that the mother was being truthful in respect of the allegations of the father’s violence and that the father was, for reasons known only to him, not frankly admitting his actions. The mother’s evidence of what the father did with his wedding ring, in particular, struck me as most unlikely to have been made up by her.
There is growing acceptance that family violence can generally be defined as falling within four categories.[6] The father’s violent behaviour, I find, fell within two of those categories, coercive controlling violence and situational couple violence.[7] That some of his behaviour fell within the first of those two categories clearly has some implications in respect of the determination of parenting orders that will meet the best interests of B and C in this case. So too, but to a lesser extent, I find, does the fact that some of his behaviour fell into the second of those named categories.
Determination of the level of risk of the children being subjected to, or exposed to, violence in the future must be made. If I determine that the level of risk is unacceptable then the parenting orders I make must reflect that.
Although I am concerned about the father’s false denials of the violence I have found he did perpetrate during the marriage, there are a number of pieces of evidence that point towards positive findings for the boys and their father about the level of risk of the boys being subjected to, or exposed to, family violence or abuse in the future when spending time in the father’s care.
The father has attended sixteen sessions of a violence counselling program conducted by a youth and family service organisation. A certificate evidencing that was put into evidence as Exhibit 1 in the trial. It shows he attended the sessions from 29 November, 2010 to 4 April, 2011 and “has had the opportunity to gain understanding and skills in” a broad range of directly relevant family violence related issues including ‘Anger and Responsibility’, ‘Male Socialisation and Male Privilege’, ‘The Impact of Violence on Women’ and ‘The Impact of Violence on Children’.
The father has also completed a positive parenting program, conducted by a private facilitator who came into his home and worked with him and also the boys for some practical sessions. The father has also completed a parenting orders program. The mother also completed both courses in the same period of time.
Mr. N, Consultant Social Worker, who prepared family reports as a single expert, opined in his conclusions that his observations conducted during the reporting process and the reports made to him by the children, particularly the older boy, B, “did not raise overwhelming concerns about fearfulness of the father.”
A reduction in the opportunity for face to face contact between the parents has also reduced exposure of the children to the “essentially undiminished”[8] level of mistrust between the parents and the consequent difficulties with communication between them. The father’s own behaviour modifications, as recorded by Mr. N,[9] reflect understanding of his contribution towards difficulties between the parties and apparent appropriate behavioural response by him.
In determining whether an equal shared parental responsibility order is in the best interests of B and C in this case, all of those matters of evidence just referred to lead me to find that the historic violence alone does not dictate ruling out such an order. Relevant, too, is the fact that both of the parents ask the Court for an order for equal shared parental responsibility in any event. Of course, the Court is not bound by such a common position to find that an equal shared parental responsibility order is in the best interests of the boys, but where both parents assert that it is, there would need to be a sound basis indeed for finding that such an order is not in the best interests of the child or children concerned.
The independent evidence supports findings that the eldest boy, B, has a meaningful attachment to his father and that it has been able to be maintained through the time the children have spent with the father in the time since final separation. The attachment of the youngest boy, C, to his father has been strengthened and both boys have become more secure with the father in his environment.[10]
I do not doubt that the father really wants to be involved as a parent in the decision making in respect of the major long-term issues in relation to these two boys.[11] However, the conflict and lack of trust between the parties remains of some concern. The evidence is that there is currently minimal communication between them. A communication book has been suggested by Mr. N as a means to improve that. Although it is concerning, the level of conflict is not such, I find, that would at this point contraindicate an equal shared parental responsibility order. I am buoyed by the progress in this matter from separation to trial. It gives me optimism that future improvement will come, particular when property division and these parenting proceedings are concluded. I consider it important for the boys in this case that their parents be given the ongoing opportunity to continue to improve their co-parenting. An equal shared parental responsibility order will afford such an opportunity. I am determined to make such an order.
Should an order for equal time with each parent then be made?
I must now consider whether the boys spending equal time with each parent would be in their best interests and whether that is reasonably practicable.[12] Without much hesitation, I find that it would not be in the boys’ best interests and that it is not reasonably practicable.
Although the parents live at Suburb E and Suburb O respectively and, therefore, do not live very far apart, reasonable practicality is determined by consideration of other important matters as well as just residential proximity. Those include the parents’ capacity to communicate with each other and to resolve difficulties that might arise in implementing an equal time arrangement. I do not consider that the parents have demonstrated that capacity in this case.
The Family Consultant, Ms. M, reported[13] as follows:-
It was evident that the parents do not possess the capacity at this stage to communicate effectively with each other.
She went on to say[14]:-
The parents have a conflictual relationship. They differ in their attitudes about parenting which informs their parenting practices. … At this time, an equal shared care parenting arrangement would not successfully operate under such circumstances.
Mr. N was of the same view. He said[15]:-
Having regard to the history of care of the children during the relationship, the endemic mistrust and difficulties with communication between the parents, the children’s young ages (particularly [C]), the respective parenting styles (particularly the more child focused nature of the mother’s interactions with the children) and the children having sourced their primary security from the mother (and the likelihood that this is still the case), the indications are that they should live predominately with the mother.
I accept the opinion evidence of both Ms. M and Mr. N in this respect. There is nothing in the rest of the evidence that causes me to conclude, having regard to the matters set out in s.60CC(2),(3) and (4), that despite the opinions of those independent experts the boys’ interests require an equal shared care parenting regime to be put in place and that the parents could make it work by the necessary communication and conflict resolution.
Should an order for the children to spend Substantial and Significant time with the Father then be made?
I must now consider whether the children spending “substantial and significant time” with each of the parents would be in their best interests and whether that is reasonably practicable.[16] The term “substantial and significant time” is defined in s.65DAA(3). That time must include days that fall on weekends and in holidays and days that do not fall on weekends or holidays and time that allows the parent to be involved in the child’s daily routine as well as occasions and events of particular significance to the child and of special significance to the parent.
Once again, the current proximity of the parents’ respective residences would accommodate the boys spending such time with the father, but it is the remaining considerations in respect of determining the reasonable practicability of such arrangements that makes answering the question in the affirmative somewhat difficult.
As the parents’ capacity to communicate with each other and to resolve difficulties in implementing such an arrangement remains less than satisfactory I cannot immediately determine that it is “reasonably practicable” within the statutory meaning of that term for the boys to spend substantial and significant time with the father.
That very same incapacity of the parents to communicate with each other and resolve difficulties in the implementation of a “substantial and significant time” arrangement makes it difficult to affirmatively answer whether the boys spending such time with their father is indeed in their best interests.
I certainly am of the view that their best interests would be served by changing the current interim parenting arrangements so that each and every weekend is not broken up by the children spending time with each parent. Mr. N suggests that the boys start spending alternate weekends with their father. I accept, on the evidence, that is appropriate and in their best interests. Spending a whole weekend in their mother’s care followed by a whole weekend in their father’s care during school terms will allow the boys to maintain and further develop a meaningful relationship with their father and will allow each parent to more effectively plan their recreational time with the boys so as to maximise, for all involved, the use and enjoyment of that recreational time.
Mr. N opines, but, I discern, without any great deal of commitment to the suggestion, that it may be appropriate for the boys to spend time with their father each alternate weekend from after school Friday until before school on Monday. I consider, on the evidence, that the boys are now old enough, secure enough in their attachments to their father and comfortable enough in the environment the father presents for them, to comfortably spend more than one overnight at a time away from their mother’s care. The father has been getting a lot of emotional, practical and financial support from his parents since the separation of the parties. I accept the boys would have significant emotional attachments to their paternal grandparents and that they, too, would have significant emotional attachments to the boys. I expect that the boys will probably get to spend time with their paternal grandparents on many, if not all, of the weekends when they are in their father’s care. That, I find, will assist the boys and the father adjusting to the increased time together. Such extra time will give the boys and the father time to enjoy the recreational routine that spending whole weekends together offers. It will, I find, as Mr. N opines, maintain and enhance the boys’ attachments to their father.
However, I am not, in this case, attracted to an argument that it is in the best interests of these two little boys to stay overnight with their father on the Sunday night of a weekend during school term, even though the mother appeared prepared to accept such a proposal. I consider that the conflict and lack of trust between the parents and their incapacity to communicate with each other in addition to the comfort and security the boys experience in their mother’s demonstrated ‘child-focused’ care mitigates in favour of returning them to her home on the eve of the start of the school week. That will allow the boys to settle in for the evening at their mother’s home and, in the company of their mother, prepare themselves, emotionally and practically, for the start of the school week ahead, during which they will be living in the mother’s household.
I am nevertheless of the view that it is in the boys’ best interests to spend time with the father on days that are school days. I consider that the time that the boys spend with their father and the parenting regime that is to be put in place should provide opportunities for the father to be involved in the boys’ school day routine. Such parenting involvement includes, importantly, arranging and being responsible for the boys’ collection and care after school and their care of a morning before school, as well as their preparation for school and delivery to school at the start of the school day. The father has been involved in this of a Wednesday night and Thursday morning now for about a year. At the trial, seven months into that year, there was very little evidence to suggest that the father has not made that work in the boys’ best interests. I intend to make orders that continue to provide similar but slightly enhanced opportunities for the father to be involved in this part of the boys’ lives so that there is opportunity for the boys’ experience of their father’s significant part in their lives to be more than just the experience of enjoyable weekend recreational time but also through his active involvement in the more mundane, weekday school-based routine. I am confident, on the evidence, that the father has the capacity to take up these parental responsibilities to the degree that I intend to provide for in my orders and to undertake them in a way that will meet the boys’ best interests.
Accordingly, I intend to make orders that provide for the boys to spend time with their father every second week during school term from after school on the Thursday to 5:30 pm on the following Sunday. Such time gives the boys that ongoing opportunity to experience their father’s involvement in their before and after school routine, including overnight, but it comes at the end of a period of stability in the home of their mother, with whom they are primarily attached, that I consider is commensurate with their best interests. If the weekend that they are spending with the father coincidentally happens to be a long weekend, with the Monday being a Queensland Public Holiday, then, pursuant to the orders I intend to make, the boys will be able to remain in their father’s care until 5:30 on the Monday, giving them just that little bit longer in their father’s care.
I do not accept, given the level of conflict and mistrust between the parents, that it is in the boys’ best interests to spend another 2 nights in their father’s care in the other week, as suggested by Mr. N to be a possible outcome. I do not consider that the parent’s capacity to appropriately implement that type of arrangement and to resolve any difficulties that emerge in it is at a level at which I could be confident that such an arrangement would work in the boys’ best interests.
However, so that the time between seeing their father on a face to face basis from one alternate weekend to the next is not quite so long, a matter that I find is potentially problematic in respect to the maintenance and development of attachment between particularly young children, as these boys are, and the parent with whom they are not principally living, I intend to make orders that provide for the boys to spend time with and have an evening meal with their father and, potentially, if the father wishes, with their paternal grandparents, on the Thursday night in the first week of the two week cycle during school term. That will reduce the time between seeing their father during school term to 4 days and then 6 days, thus mitigating the impact that not seeing their father for 11 days at a time might have on the boys. The mother accepts that can be for an overnight stay. Accordingly, my orders will provide for that.
I intend to make orders that also will provide for the boys to spend time with their father during the Queensland school holidays. Given the age of the boys and the fact that they have not spent periods of time with the father of more than one overnight visit at a time, I intend for that holiday time to be introduced on a graduated basis with it being a matter of time before they actually spend more than a whole week in the father’s care during the long summer school holidays. Of course, the time during that long summer holiday is to ultimately be shared equally between the parents in a way such that the boys spend one long block with each of the parents. That allows for each parent to arrange for a longer holiday away with the boys if that is what they would like to do. Such longer holidays away with family are good for children and a wonderful part of family life as children grow and develop. These boys should have that opportunity with each of their parents after they have become used to spending longer periods in their father’s sole care and their father has become more accustomed to solely caring for them for longer periods at a time.
The orders I intend to make will also provide for the boys to spend days that are special in their lives with each of their parents. The boys’ birthdays, their parents’ birthdays, their grandparents’ birthdays, Mother’s Day, Father’s Day and the Easter and Christmas festive holidays will be spent where appropriately with each parent as equitably as possible. That, I find, is in their best interests.
Ultimately, the orders that I have determined are in the boys’ best interests will provide for them to spend time with their father in such a way that satisfies the definition of “substantial and significant” time.[17] It follows, notwithstanding my concerns expressed earlier in these reasons, that I am satisfied, after consideration, that the boys spending such time with their father is in their best interests and that it is reasonably practicable, as that term is defined,[18] for them to spend such time as my orders will provide with their father. I consider though, that the way in which I intend to structure that time and the logistics associated therewith, reduces, as far as possible, commensurate with the boys’ best interests, problems that the parents may face in respect of being able to co-operatively implement such arrangements and to communicate with each other for the resolution of any difficulties that might arise.
I also intend to make orders that provide for the boys to be able to communicate with their father between spending time with him. Speaking with him and hearing his voice over the phone between face to face time with him will enhance their meaningful relationships with him. That sort of communication has not been happening but I do not consider there is a good reason for it not to begin to happen now. I expect that the benefit to the boys of such communication will continue to increase as they grow older, particularly as their attachment to their father continues to strengthen.
I intend to make orders that include provision for the mother to take the boys to the an educational program as recommended by Ms. M to assist them in understanding their parents’ separation.
I intend to make orders that include provision for both parents’ involvement in the health care, education, religious, cultural and sporting development of the boys if that is the parent’s desire. Of course, it is axiomatic that the greater the level of co-operative, child-focused parental involvement in these things, the better for the child. I hardly need to remind the parents that it will be if the parents introduce conflict between them to their involvement in these things that the benefit of their involvement to the boys will turn to detriment to the boys.
Of course, the parents can agree between themselves as time goes by to vary the provisions of the orders I make. My orders will particularly provide for the children to spend time with the father and to communicate with him as might be agreed between the parents and, failing agreement, then as I order specifically. Such order provides the foundation upon which the future parenting arrangements for these two boys can be made between the parents themselves in a co-operative, child-focused fashion without their necessarily having to resort to a court for the determination of what is in the best interests of these boys. After all, no one can know these two boys as well as their parents do. It is they who should, ultimately, by agreement, determine what is in the best interests of their boys and that might include an increase in the amount of time that the boys spend with their father as they grow older and less dependent on the nurturing provided by the parent with whom they have their primary attachment. It is to be hoped they can agree upon such things as the need to arises.
THE PROPERTY ORDERS
Relevant Background
In 1994, at the age of 20, Mr. Risovic purchased the property at H Street, Suburb I. He says he bought it for $70,000 with help from his parents and his younger brother. Mr. Risovic says that there was an agreement that if the property was ever sold the net proceeds of sale would be split equally between him and his brother. He says his brother’s name was not on the title because he was under 18 years of age at the time of purchase.
Mr. Risovic says the balance of the purchase price was borrowed from the Commonwealth Bank and that at the time the parties married there was only about $13,000 still owing to the bank. The property is still owned by Mr. Risovic and has been rented to tenants ever since it was purchased. It is agreed, notwithstanding Mr. Risovic’s evidence about the agreement with respect to paying half of any net proceeds of sale to his younger brother, that the value to be ascribed to the property and considered in the pool of property to be divided is $285,000. That is the value ascribed to the entire property by the single expert, Mr. P. It is also agreed that the property was valued at $90,000 at the date of the parties’ marriage. That is also a value determined by the single expert.
Ms. Risovic says in her affidavit evidence that the property was purchased for $37,000 not $70,000 and that the balance owing on the mortgage when they married was $25,000 not $13,000. She says she knows this because Mr. Risovic told her several times early in their marriage. She says she also sighted a bank document that said the original home loan was for $37,000.
However, under cross-examination, Ms. Risovic accepted that the purchase price was $70,000, saying “it was something like this. I have seen it”. I note that Mr. P included in his valuation reports on that property information that I assume he obtained from searches, noting the property had been purchased in late 1993 for $70,000. That could have been pointed out to Ms. Risovic in the lead up to the trial. I consider it likely that is what Ms. Risovic was referring to when she said she had “seen it”. Of course, I must have regard to that mistaken view of the circumstances surrounding the purchase of the property when I am making a finding in respect of the disputed level of the mortgage debt on the property at the time of the marriage. I shall return to this issue a little further on.
In 1998, Mr. Risovic purchased the property at J Street, Suburb O. It was purchased for $50,000 with a deposit of $5,000. Mr. Risovic says he contributed money from his own savings and a compensation payment he had received in respect of an injury he had suffered as well as some his parents had given him. He says he borrowed only $19,000 from the Commonwealth Bank to complete the purchase. He rented that property out until he married Ms. Risovic and they then moved into it. It is still owned by Mr. Risovic.
It is agreed that the value to be ascribed to the property and considered in the pool of property to be divided is $300,000. Again, that is what the single expert says it is worth. It is also agreed that this property, too, was valued at $90,000 at the date of the parties’ marriage, that value also having been determined by Mr. P.
Mr. Risovic also owned a car when he married. He still retains that car and it is agreed it has a value of $1,500.
Ms. Risovic says that Mr. Risovic also owed his parents $10,000 when they married, in respect of borrowings he made to buy his car. She says he told her this and that later he told her that he had paid it off. I accept that evidence. I did not understand Mr. Risovic to dispute it.
In 2000, Ms. Risovic and her sister bought the property at Q Street, Suburb R for $107,500. They purchased it jointly, putting $5,000 towards the deposit and borrowing the balance. Ms. Risovic says she did not contribute as much to the mortgage as her sister because her sister worked full-time and she only worked 8 days per fortnight. After Ms. Risovic married and moved in with Mr. Risovic, her sister stayed in the Suburb R property and continued to pay all the mortgage repayments. The property was sold in June 2002 for $160,000 and the sister paid to Ms. Risovic the sum of $15,000 as her share of the $50,000 proceeds. Ms. Risovic says that she agreed on that given the circumstances of the difference in the repayments they had made to the mortgage.
Mr. Risovic says that he believes Ms. Risovic was entitled to a further $15,000 and that as she did not actually get that from her sister it must be represented in property that her sister has since purchased. For Mr. Risovic, it is argued that this extra $15,000 should be included in the pool of property to be divided between the parties and treated as already having been received by Ms. Risovic.
Ms. Risovic says that she contributed the $15,000 that she did receive towards reduction of the mortgage debt secured on the H Street, Suburb I property. She says that at around that same time, they also drew an additional $10,000 against the mortgage secured over a property they had purchased jointly prior to their marriage at S Street, Suburb T and also used that towards reducing the mortgage debt secured on the Suburb I property. That could all only be correct if the debt had been $25,000 at the time as Ms. Risovic asserts and not $13,000 as Mr Risovic asserts.
As I already observed, the wife was mistaken about the purchase price for that H Street property. Of course, that suggests she could very well also be mistaken about the mortgage debt at the date of marriage. However, I generally considered the wife was trying to be honest in all of her evidence whilst, as I have already found, I consider the husband made false denials in his evidence. As such, my impressions lead me to consider, in the absence of documentary evidence, that the wife is more likely to be correct in respect of the level of the mortgage debt on the H Street, Suburb I property at the date of marriage than the husband. I therefore accept that it was more probably around $25,000 than $13,000. In any event, I do not consider that the difference, if I am wrong, would make any noticeable difference in the end result of this property division.
In 2001, just before they married, the parties bought the property at S Street, Suburb T and registered it in joint names. Mr. Risovic says it was bought for $135,000 with a deposit of $7,000 which Mr. Risovic says came from some money that he received on the sale of an investment unit that he and his brother had owned at the U Town. The balance was borrowed from the Commonwealth Bank. Ms. Risovic says she recalls it was purchased for $189,000. The Suburb T property was also rented out to tenants. I do not consider it necessary to have to determine whose evidence is correct as the property was later sold before the parties’ final separation and the proceeds of sale contributed to purchasing other property. What it was purchased for is, therefore, of no real consequence.
In 2004, the family moved out of the J Street, Suburb O property and into the S Street, Suburb T property. The parties had their first separation whilst living there and the husband says that he continued to live by himself in that property until April, 2006, whilst the wife says the husband moved back to the Suburb O property and she and the children stayed in the Suburb T property until they reconciled back at the Suburb O property. The Suburb T property was then sold. The husband says the parties received net proceeds of sale of $161,000 and the wife says it was more like $110,000. Again, I do not consider it necessary to determine whose evidence is correct. They agree they put all of that money, whatever amount it was, towards the purchase of the property at D Street, Suburb E that was bought for $412,000. The balance purchase price was borrowed from the Commonwealth Bank. The D Street property was then rented out with the rental income being used to repay the mortgage debt. Ms. Risovic and the boys now live in this property and she wishes to retain it as her property after the property division.
In May, 2003, the couple purchased the property at V Street, Suburb W, jointly with Mr. Risovic’s brother. Mr. Risovic says it was bought for $345,000. Ms. Risovic says it was bought for $370,000. Once again, I do not consider it necessary to determine whose evidence is correct. The property was rented to tenants and the rental income used to repay the mortgage debt. The parties sold their half interest to Mr. Risovic’s brother in August, 2006 and received $11,000 net. There is no disagreement about that.
Mr. Risovic says that Ms. Risovic received that sum of $11,000 and has not accounted for it. He says the same thing in respect of another amount of $20,000 that the parties obtained in 2004 on a refinance of one of the loans. Ms. Risovic denies not accounting for any money she received during the marriage. She says the funds went into a joint account and were used, in one instance, to purchase a car, otherwise, for family purposes. I accept her evidence.
In June, 2007, the parties purchased the property at J Street, Suburb O for $245,000. They borrowed the entire purchase price from the Commonwealth Bank and rented the property to tenants. That property was sold a year later for $318,000 and they received net proceeds of $61,000. They then used about $50,000 of that money to purchase the property at X Street, Suburb I for $258,000, borrowing the balance of the purchase price from the bank.
Accordingly, at the couple’s final separation in October, 2008, the husband owned the properties at J Street, Suburb O and H Street Crescent, Suburb I and the parties jointly owned the properties at X Street, Suburb I and D Street, Suburb E. Only the latter two properties were encumbered by mortgages.
In mid-2009, several months after their final separation, the couple listed the X Street, Suburb I property for sale. They received an offer of $266,000 in August, that year. They signed the contract but the purchaser was unable to obtain finance and the sale did not proceed. Further written offers of $262,000 and $255,000 were received but Mr. Risovic says Ms. Risovic did not agree to sign those contracts. Mr. Risovic says, eventually, after the bank indicated urgent action was needed, Ms. Risovic agreed to sell the property at an offer they received of $235,000. On settlement, the parties received net proceeds of $8,448 which they simply divided equally. Mr. Risovic asserts that because Ms. Risovic refused to accept the offer of $262,000, the parties lost $27,000 when they sold it for $235,000.
The husband and his parents did some renovation work on the H Street, Suburb I property during the period of cohabitation of the parties. That included painting the house inside and out, constructing a carport using contractors, the construction of a fence and renovation of the bathroom.
The parties themselves did some renovation work on the J Street, Suburb O property during their cohabitation. That included roof repairs, the installation of a carport, the installation of garden beds, painting the outside and inside of the home, the enclosure of a veranda, electrical work, installation of new lighting, renovation of the kitchen and bathroom, and laying new tiles. The parties undertook quite a bit of that work themselves, in addition to using contractors.
The wife says that the husband’s parents gave the husband $10,000 at the time of the purchase of the J Street, Suburb O property and that was used towards its purchase. The husband appears to accept that.
Throughout the cohabitation of the parties, the husband was a truck driver earning $50,000 to $60,000 gross per year. He contributed that money to the well-being of the family. The wife worked as a nursing assistant at all periods, apart from those where she took leave to care for the boys after their births. She had taxable income of $1,644 in 2006, $43,565 in 2007, $22,816 in 2008 and $21,493 in 2009. She contributed that money to the well-being of the family.
As I have already noted, the wife asserts, and I accept, that the she was the principal provider of parental care to the boys during the marriage, and I accept that she undertook most of the domestic tasks required in caring for the family as a whole during that time. I accept that the husband undertook most of the tasks required to maintain the yard and the house itself.
Since the parties’ separation, the husband has lived in the J Street, Suburb O property that was mortgage debt free at separation. The husband has also continued to receive all of the rental income from the H Street, Suburb I property which was also mortgage debt free at separation.
The wife and boys initially lived in a rental property for about 9 months after separation paying $350 per week rent. At the same time, and for that entire 9 month period, the wife paid the shortfall between the mortgage repayments and outgoings on the X Street, Suburb I property and the D Street, Suburb E property and the rental income being received for those properties during that time. The husband made no contribution to that shortfall whilst he was living rent free in the former matrimonial home at Suburb O.
The wife’s specific evidence, which I accept, is that for that 9 month period she received $20,000 in rental income in respect of the D Street, Suburb E property and paid $25,530 in mortgage payments and other outgoings in respect of the property. From the time she and the children moved into that property until she swore her affidavit filed 26 November, 2010, she paid $28,046 in total in mortgage repayments, rates and other outgoings. Similarly, in respect of the X Street, Suburb I property, from separation until it was sold in March 2010, she received $16,442 in rental income and paid out approximately $26,460 in mortgage repayments and other outgoings in respect of that property.
Since separation the wife has had the principal care of the boys with not much relief from all that involves. She had received from the husband, to the time of swearing her affidavit, a total of $7,137 in child support, an average of about $68 per week for the two boys, far short, I find, of the actual cost to her of maintaining those boys.
The husband’s affidavit evidence was that he lost his employment in September, 2009. However, under cross-examination, he conceded that he had, in circumstances where he was given some form of ultimatum, actually resigned. After that he tried to start a business but that was not successful and he then went back to his original form of employment. He was working casually, mostly for one particular company and in June, 2010, he became a permanent casual with that company. He says his shifts and hours have been reduced and that has resulted in reduced income. He says in his affidavit filed 15 December, 2010, that his income at the time was $595 per week from working and $250 per week rent from the H Street, Suburb I property.
The husband says he has had to borrow from his family and from the bank to help him with his day to day expenses and to pay his legal fees for the representation he has had in these proceedings. He said he borrowed $30,000 from his family, about half of which he has used for living expenses. I infer, from his evidence, that the balance of $15,000 was used to pay legal fees. He also borrowed a further $70,000 from the bank to pay legal fees. That debt at the date of trial was agreed to be $66,849. The husband used post-separation income, some of which was rent from the Suburb I property, to make the loan repayments in respect of that debt.
The wife doubts the husband did borrow from his family as he says he did. I could find no basis for not accepting his evidence on that, particularly as he clearly stated about half had been used for living expenses, leaving me to conclude the other half had been used to pay legal fees. He made that admission, I find, most likely knowing the probable consequence of that admission would be a notional add-back of that which is found to have been paid in legal fees.
The wife, too, says that she has borrowed $30,000 from her parents since separation. That amount has been borrowed from them in various amounts as she has needed it from time to time. There is no evidence that any of that has been spent on legal fees. Whilst the husband presented a case that I should not accept the wife’s evidence in this regard, I reject his argument and accept that the wife, like the husband, has since separation had to borrow from family to help her cope with the financial pressures faced. I could find no basis at all for not accepting the wife’s evidence.
The wife’s credit card debt at separation was $2,500 and that has increased to $5,000 since separation, mostly, she says, as a result of paying for rates and insurances on the properties.
Principles to be Applied
Both parties presented their cases in accordance with the four step process of determining just and equitable property division orders that is authoritatively accepted as an appropriate method for doing so.[19] Firstly, the pool of property of the parties or either of them is to be determined and the values to be ascribed to the property and the liabilities that are included in that pool are to be fixed with a view to determining the net value of all of that property and liabilities. Secondly, consideration is to be given to the contributions of the parties, as required by s.79(4)(a) to (c) of the Act, and a notional percentage division arrived at having regard to those contributions. Thirdly, consideration is to be given to the matters set out in s.79(4)(d) to (g) of the Act, including all of those matters referred to in s.75(2) of the Act so far as they are relevant, to determine whether justice and equity requires adjustment to the notional percentage division of the net pool arrived at after the second step and, fourthly, orders that are just and equitable in all the circumstances of the case are to be fashioned having regard, although not in any rigid sense, to the positions arrived at upon the first three steps.
In this case, I find no reason to deviate from that four step process just described, particularly given that the parties themselves accept it is appropriate.
What is the pool of property that is to be divided?
I find that the property and liabilities of the parties or either of them to be made subject to property division orders is as follows:-
Assets
Real property J Street, Suburb O (husband’s) $300,000
Real property H Street Crescent, Suburb I (husband’s) $285,000
Real property D Street, Suburb E (jointly owned) $470,000
Motor car (husband’s) $ 1,500
Motor car (wife’s) $ 4,500
Bank accounts (wife’s) minimal
Bank accounts (husband’s) minimal
Bank accounts (jointly owned) minimal
Contents of husband’s home $ 1,500
Contents of wife’s home $ 1,500Sub-total $1,064,000
Liabilities
Mortgage to CBA encumbering Suburb E property $262,000
Mortgage to CBA encumbering Suburb I property $ 66,850
Wife’s credit card debt $ 5,000
Wife’s debt to her parents $ 30,000
Husband’s debt to his family $ 30,000
Sub-total $393,850
Net Total $670,150
Amounts notionally added back in accordance with
principle
Amount of money borrowed by husband from his
family used to pay legal fees $ 15,000
Amount of money borrowed by husband from bank
and used to pay legal fees (amount still owing) $ 66,850
Sub-total $ 81,850
Superannuation Interests
Husband’s Super $ 38,614
Husband’s Y Super Fund $ 875
Husband’s Z Super $ 2,785
Wife’s AA Super $ 22,878
Wife’s BB Super $ 6,761
Sub-total $ 71,913
Net Total of all assets, liabilities, add-backs and super $823,913
I have notionally added back to the pool of property two amounts. Both of those amounts represent money the husband has borrowed since separation that he has used to pay legal fees. The greater of the two amounts is the balance at trial of the amount he still owed to the bank in respect of the loan he took out and used to pay legal fees. The lesser of the two amounts is that which he paid in legal fees from money he borrowed from his parents. I notionally add both of those amounts to the pool, finding that to be in accordance with well established principle.[20]
I have not added back the notional sum of $15,000 that the husband argues represents half of the wife’s actual entitlement to receipt from her sister of half of the net sale proceeds of the Suburb R property. I accept the wife’s evidence that all she received for her interest in that property when it was sold was $15,000. I am not persuaded either that she actually received another $15,000 and did not account to the husband for it or that she should have received another $15,000 and that, consequently, it should now be notionally added back. If the husband had concerns about the wife not getting her fair share of the sale proceeds of that property at the time it sold, as his current position suggests he did, his concerns did not translate to action at that time or at any time during the parties’ cohabitation. I find no basis for dealing with the matter now in the way the husband contends.
I have also not added in any amount representing notional loss on the sale of the X Street, Suburb I property as the husband argues should be done due to the wife’s refusal to accept offers that were higher than the ultimate sale price. The argument was, I find, effectively, that the relevant facts bring the matter within the exception, outlined in Kowaliw,[21] to the general principle that financial losses incurred by parties to a marriage should be shared by them. I infer that the husband argues, by raising the issue, that the wife acted recklessly, negligently or wantonly in refusing to accept the better offers. I am simply not satisfied on the husband’s evidence or the evidence of the wife under cross-examination that the wife acted in a way that could be so described or that would, in any way, justify the add back argued for by the husband.
What notional division should the contributions of the parties to the date of the trial result in?
The husband brought in to the marriage the Suburb I property worth $90,000 at the time with a debt, I have found, of about $25,000 secured by mortgage over it. Accordingly, he had equity of $65,000 in the property, about 72 per cent of its value. He also brought in the Suburb O property unencumbered. Those two properties are now worth $285,000 and $300,000 respectively, a total of $585,000. That represents approximately 71 per cent of the total pool of net divisible property. Appropriate weight must be given to that fact.[22] In this context, I must not overlook the direct contributions I have found the wife made to the improvement of the Suburb O property during the parties’ cohabitation and I do not. Similarly, I do not overlook the myriad of other contributions also made by the wife during cohabitation of the parties and after the separation of the parties that, without doubt, assisted in the continued retention by the husband of those properties.[23]
The husband also brought in the interest in the U Town unit, a $10,000 debt to his parents that he repaid during cohabitation, a car and some furniture. The wife brought in her interest in the Suburb R property. Clearly, the husband’s initial direct contributions heavily outweighed the wife’s.
I find that the parties each contributed to the best of their capacities in various ways during the years of their cohabitation, the husband earning more income than the wife, the wife contributing more in terms of parenting and home-making than the husband. The husband’s parents’ gift of $10,000 to the husband is also not overlooked as a contribution made by him.
Since their separation, the wife’s contributions across all of the s.79(4)(a),(b) and (c) contributions fields, heavily outweigh the husband’s. I do not overlook though that by the inclusion in the calculation of the divisible pool of the wife’s debt to her parents, her credit card debt and the husband’s debt to his parents, that each party must be considered to have indirectly contributed the use of that money to that which it was used for.
Trying to compare the contributions made by the husband in the form of the two real properties with the contributions made by the wife since separation in principally caring for the two boys, both practically and financially, as well as the other contributions made by the wife in paying the shortfall between rental income and outlays on two of the real properties and the husband’s continued occupation of the former matrimonial home, and his retention of the rental income from the Suburb I property is, it must be said, like trying to compare apples with oranges.
Of course, the process is not meant to be a mathematical one or an accounting exercise. It is a discretionary process with weight to be given to relevant matters as is considered appropriate to do justice and equity between the parties.
Whilst I do not accept that the greater contributions made by the wife since the parties’ separation totally counter-balance or off-set the greater initial contributions made by the husband through the properties he brought with him into the marriage, I do accept the argument advanced by counsel for the wife that they go a long way towards doing so. I accept and find that the notional percentage division based on the assessment of all of the parties’ contributions to the time of trial should be fixed at 56 per cent in favour of the husband and 44 per cent in favour of the wife. In doing so, I am mindful of the overall 12 per cent differential, which is notionally equal to just under $100,000 in terms of the total value of the divisible pool. I consider that appropriate in all the circumstances of all the contributions.
Should the remaining considerations result in an adjustment to that notional division to do justice and equity between the parties?
The wife is 39 years of age, healthy and continues to work in health services at the CC Hospital for 38 hours per fortnight. She does that, usually, by doing 3 shifts per week. She earns approximately $440 gross per week ($22,800 per year) and also receives $205 per week in the form of Commonwealth Government paid Family Tax payments. In her affidavit filed 26 November 2010 she said she had not received any child support from the husband since October, the previous month. Under cross-examination, she said that the assessment that was current at the trial was for the husband to pay $260 per month (equal to $60 per week). That being the case, I find that the wife will continue to bear the major responsibility for financial support of the children into the future, just as she has since separation.
The wife makes herself available to care for the children when she is not working. They are put into before and after school hours care, at her expense, when she goes to work. I do not accept the argument advanced for the husband that the wife, reasonably, could be expected to work more hours and earn more income in all the circumstances.
The husband is 36 years of age, healthy and continues to work for a company in the food production and distribution industry. In his affidavit filed in December 2010, he says he earns $595 per week ($30,940 per year) and $250 per week ($13,000 per year) in rental income from the Suburb I property. The husband said in his affidavit that he would be able to take on full-time work if it became available to him. Under cross-examination, he said that he could get more work from his current employer as they have “very flexible arrangements.” I find, on the basis of that evidence, that the husband has the capacity to readily earn more income in the foreseeable future, even with the additional care of the boys that he will have under the orders I intend to make, and that it is not unreasonable to expect that he will or, at least, that he could if he wanted to. One could expect, if that were the case, his child support liability will increase at the same time. I accept that as a natural consequence of a finding that he will earn more in the near future.
I do not overlook the fact that the wife seeks to retain the Suburb E property and to be paid a cash sum by the husband. Any cash sum that I determine he is to pay her will have to come from the sale of property or borrowings or both. The Suburb I property may have to be sold or further encumbered by increased mortgage debt. The husband will have less disposable income whichever of those two courses he takes.
A 56/44 contributions based notional division would give the wife $362,000 in net property and superannuation and the husband $461,000 worth.
I note that 10 per cent of the divisible pool of net property and superannuation is equal to approximately $82,000. I must be conscious of the actual monetary or dollar value of percentage figures when I am exercising the discretion whether or not to make an adjustment to the contributions based notional division at this part of the process.
Consideration of the relevant factual matters leads me to conclude that the wife will have the principal responsibility for caring for the two young boys, practically and financially, for many years to come. She will be doing that in circumstances where she will be earning less income than she would have been if she did not have the responsibility of caring for the children. She cannot expect much in the way of actual financial assistance for the boys from the husband, who, nevertheless, will go on earning quite a bit more than she does without having the same demands on that higher income as she has on her lower income. Additionally, the wife’s responsibility of providing care for the children and the impact that will have on her earning capacity in the future will limit, to some extent, the amount of superannuation that she will accumulate for her own retirement. The husband will not experience the same limitation on the continued accumulation of superannuation. These are all direct consequences of the decisions taken by the parties during their marriage to have children and to arrange their parenting affairs in the way that they have.
Conscious also of the fact that any adjustment that is made in percentages as opposed to dollar values, results in a 2 per cent actual shift in the differential between the parties after the contributions based notional division for every 1 per cent of adjustment, I am satisfied that in order to do justice and equity between the parties in this case, having regard to all of the matters that I am required to consider at this part of the process, an adjustment of no more than 10 per cent in favour of the wife is necessary. Accordingly, after making that adjustment, I determine that the appropriate percentage division of the pool of net property and superannuation so as to be able to make orders that are just and equitable is 54 per cent in favour of the wife and 46 per cent in favour of the husband.
Such a percentage division results in the wife being entitled to have settled upon her net property and superannuation to a value of $444,913 and the husband $378,999.
What just and equitable orders should now be made?
The wife currently has the following:-
Motor car $ 4,500
Bank accounts minimal
Contents of her home $ 1,500her AA Super $ 22,878
her BB Super $ 6,761
less
her credit card debt $ 5,000
her debt to her parents $ 30,000Net Total $ 639
That would, on my determination, have her entitled to receive another $444,274 of net property from what remains either jointly owned or owned by the husband. As she seeks to retain the Suburb E property and to refinance its mortgage debt herself, so that she and the boys can continue to live there, orders providing for that would give her a further net amount of $208,000. If the orders provide for that then they would need also to provide for her to get another $236,274 in cash or property from the husband.
The husband owns the unencumbered property at Suburb O worth $300,000 and the property at Suburb I worth $285,000 that he has encumbered since separation with the mortgage currently securing the debt of $66,850. He therefore has a total of $518,150 in equity in those two properties. I am satisfied that the amount of $236,274 can be sourced by the husband, either by further borrowings or by sale of one or both of the two properties or a combination of both sale and further borrowings.
I consider there to be nothing unjust or inequitable in giving the wife the opportunity to retain as her sole property the Suburb E property provided she refinances the mortgage into her own name. I consider there to be nothing unjust or inequitable in ordering, in all the circumstances, the husband to pay to the wife a cash sum of $236,274 at the same time as he transfers to her his interest in the Suburb E property and she refinances the mortgage debt into her sole name. Of course, in default of payment by the husband provision will have to be made for one or both of his properties to be sold for payment of that cash amount to be otherwise effected. I consider there to be nothing unjust or inequitable about that consequence in all the circumstances of this case. I will order accordingly.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 September 2011.
Associate:
Date: 21 September 2011
[1] S. 60CA of the Family Law Act
[2]These are set out expressly in s.60B of the Act. Just how they are to be considered was extensively discussed by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 and considered by me in Preston and Preston [2011] FamCA 618 at [36]-[48]. What Murphy J had to say on the point in Cowley & Mendoza [2010] FamCA 597 is also, respectfully, noteworthy.
[3]Goode v Goode (2006) FLC 93-286 (Full Court), MRR v GR (2010) 84 ALJ 296 (High Court), as analysed and discussed by Murphy J in Cowley & Mendoza
[4]Marsden and Winch (No.3)[2007] FamCA 1364 per Warnick and Thackray JJ at [77]
[5] S.61DA(2)
[6]See “Family Violence Best Practice Principles”, Published by the Family Court of Australia and the Federal Magistrates Court of Australia, 2011, page 6 and the footnotes referred to therein.
[7]Those categories of family violence and the other two categories, “violent resistance” and “separation instigated violence” are defined at page 6 of the publication just cited.
[8] See report of Mr N attached to his affidavit filed 23 February, 2011, - paragraph 10.1 on page 13
[9] See report of Mr N attached to his affidavit filed 23 February, 2011, - paragraph 10.2 on page 13
[10] See report of Mr N attached to his affidavit filed 23 February, 2011, - paragraph 10.6 on page 13
[11] See ss. 61B and 65DAC and the definition of ‘major long-term issues’ in s. 4
[12] See s. 65DAA(1) and (5)
[13] See her report attached to her affidavit filed 1 June 2010 at paragraph 24 on page 4
[14] Paragraph 27 on page 4
[15] See report of Mr N attached to his affidavit filed 23 February, 2011, - paragraph 10.12 on page 14
[16] See s. 65DAA(2)
[17] As defined in s.65DAA(3)
[18] S.65DAA(5)
[19]See Hickey & Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; Coghlan & Coghlan (2005) FLC 93-220
[20]See In the Marriage of Townsend (1995) FLC 92-569; Chorn and Hopkins (2004) FLC 93-204; Omacini and Omacini (2005) FLC 93-218
[21] (1981) FLC 91-092 at 76,644
[22] See Pierce (1999) FLC 92-844
[23]See Bilous v Mudaliar & Anor (2006) 35 FamLR 55; Williams & Williams [2007] FamCA 313; Wood & Wood [2007] FamCA 526; Ellem & French [2009] FamCAFC 22
Key Legal Topics
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Family Law
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