Sackville and Yule
[2009] FMCAfam 1400
•24 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SACKVILLE & YULE | [2009] FMCAfam 1400 |
| FAMILY LAW – Parenting – most issues agreed – dispute about some specific issues including time on special days, arrangements for Christmas school holidays, the conditions to be attached to interstate and overseas travel and control of children’s bank accounts – Property – 12 year relationship – small net asset pool – heavily encumbered former matrimonial home – dispute about whether certain liabilities should be taken into account in determining the pool available for division or should be the sole responsibility of the husband. |
| Family Law Act 1975, ss.60CC, 61DA 75 & 79 |
| Re NHC & RCH (2004)FLC 93-204 Clauson v Clauson (1995) FLC 92-595 Pierce and Pierce (1999) FLC 92-844 Hickey & Hickey (2003)FLC 93-143 Mallett & Mallett (1984) FLC 91-507 |
| Applicant: | MR SACKVILLE |
| Respondent: | MS YULE |
| File Number: | DNC 132 of 2009 |
| Judgment of: | Terry FM |
| Hearing dates: | 23 September & 16 October 2009 |
| Date of Last Submission: | 16 October 2009 |
| Delivered at: | Darwin |
| Delivered on: | 24 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barry |
| Solicitors for the Applicant: | De Silva Hebron |
| Counsel for the Respondent: | Mr Black |
| Solicitors for the Respondent: | Cecil Black Family Lawyers |
ORDERS
Parenting Orders
BY CONSENT:
That each parent promptly enrol in and complete all sessions of the Parenting after Separation course.
AND IT IS ORDERED:
That in addition to the time provided for in the orders made on 23 September 2009, the children [X] born [in] 1998 and [Y] born [in] 2000 shall spend time with the husband:
(i)from the conclusion of school on Tuesday until 6.00pm on Sunday or until 6.00pm on Monday if Monday is a public holiday each alternate week during school terms commencing on the first Wednesday of each school term;
(ii)for half of the Christmas school holidays each year being the second half of the 2009/2010 holidays and each alternate year thereafter and the first half of 2010/2011 holidays and each alternate year thereafter.
That if [X] has been selected to attend an interstate or international swimming meet which is to occur during the husband’s Christmas or mid-year school holiday time or wishes to attend a local swimming meet during that period, the husband shall ensure that [X] attends the meet and attends all training sessions which she is required to attend by her coach for the purposes of that meet, and if the husband is unable because of his holiday commitments to comply with this requirement then he return [X] to the wife’s care.
That provided that the children and both parents are in Darwin on Christmas Day, the children shall spend time with the husband from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in 2010 and each alternate year thereafter and from 2.00pm on Christmas Day to 2.00pm on Boxing Day in 2009 and each alternate year thereafter and with the wife from 2.00pm on Christmas Day until 2.00pm on Boxing Day in 2010 and each alternate year thereafter and from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in 2009 and each alternate year thereafter.
That provided that [Y] and the parents are both in Darwin on [Y]’s birthday the wife shall spend time with [Y] from 6.00pm on the night preceding his birthday until 12 noon on his birthday in 2010 and each alternate year thereafter and the husband shall spend time with [Y] from 6.00pm on the night preceding his birthday until 12 noon on his birthday in 2011 and each alternate year thereafter.
That [X] and [Y] shall spend time with the parent the children are not otherwise with on [X]’s birthday from 6.00pm on the night preceding her birthday until 12 noon the following day if the birthday falls on a non-school day and until the commencement of school the following day if the birthday falls on a school day.
That each parent is permitted to travel interstate or internationally with the children during their period of holiday time with the children provided that they give to the other party at least twenty-eight (28) days prior to departure a written itinerary containing the dates of departure and return, destinations, flight numbers and the name, address and telephone number of the place where the children will be staying during the holiday.
That the wife shall make deliver the children (if it is the school holidays) and the children’s bags to the front gate of the husband’s residence or unit complex at the commencement of the husband’s time with the children and the husband shall return the children and their bags to the front gate of the wife’s residence or unit complex at the conclusion of his time with the children.
That except in the event of an emergency and except to assist the children to unload their belongings from the car neither parent shall get out of their motor vehicles when dropping off the children or the children’s bags.
That the wife’s application to spend time with the children on New Years Eve, Australia Day each year and on [omitted] Day each alternate year is dismissed.
That each parent do all acts and things and sign all documents required to return the money in the children’s accounts with National Australia Bank to accounts in respect of which the parents are signatories as trustees for the children.
AND IT IS NOTED:
(A)That the parents agree that in addition to the payment of child support that is assessed to be due or is payable pursuant to an agreement between the parents, either parent may pay for the sporting and school expenses (including school fees) and the costs of the children’s mobile telephones, as is agreed between the parents, and that parent shall be reimbursed by the other parent within fourteen (14) days of presentation of evidence of payment of those additional amounts. The amount reimbursed shall be an amount calculated on the ratio of the wife’s current pre-tax salary and superannuation package and the husband’s current pre-tax salary and superannuation package for the same period.
Property orders
That provided that the wife refinances into her sole name the loan from Members Equity secured over Property W within forty nine (49) days of the date of these orders the husband shall sign all documents required to transfer to the wife at the expense of the wife the whole of his right title and interest in the Property W property.
That as and from the date of transfer the wife shall indemnify the husband and keep him indemnified in respect of all rates, taxes and outgoings owing in respect of the property.
That if the wife fails to comply with order (12) the Property W property be sold and the husband and the wife do all acts and things and execute all documents necessary to sell the property on the following terms:
(a)the property be listed for sale with a real estate agent agreed between the parties;
(b)in the event that the parties cannot agree on the nomination of such agent they shall jointly approach the President of the Real Estate Institute of the Northern Territory of Australia and accept his or her nomination of a real estate agent to sell the property;
(c)in the event the parties are unable to agree on a listing price, the time of listing, the method of sale and conditions of such sale, they shall accept the recommendations of the real estate agent appointed pursuant to these orders for the sale of the property in respect of each such matter.
That upon completion of the sale of Property W the proceeds of sale shall be applied as follows:
(i)firstly to pay all costs, commissions and expenses incurred in respect of the sale;
(ii)secondly to pay the amount required to discharge the loan secured by mortgage over the property;
(iii)thirdly to pay the balance to the wife.
That until completion of the sale:
(i)the wife shall be entitled to sole occupancy of the property;
(ii)the husband and wife shall continue to pay the mortgage payments, rates and other outgoings for the property as they fall due in proportion to their salaries.
That in the event that either party refuses or neglects to comply with the provisions of these orders the Registrar of the Federal Magistrates Court of Australia at Darwin is hereby appointed to execute all deeds and documents in the name of the defaulting party.
That unless specified in these orders and except for the purpose of enforcing payment of any money due under these orders or subsequent orders, each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in possession of each party and superannuation standing in their respective names.
IT IS NOTED that publication of this judgment under the pseudonym Sackville & Yule is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 132 of 2009
| MR SACKVILLE |
Applicant
And
| MS YULE |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Sackville and Ms Yule separated on 1 January 2009 after a relationship of almost twelve and a half years.
On 19 March 2009 the husband filed an application for property orders. He later amended his application to seek parenting orders as well. The wife filed a response and (after an unsuccessful conciliation conference) the matter was listed for final hearing.
On the first day of the hearing, most of the parenting issues were resolved and consent orders were made. The issues which ultimately required determination were:
i)whether the husband’s time with the children during school terms should be from after school on Tuesday until 11.00 am on Sunday each alternate week or from after school on Wednesday until the commencement of school on Monday each alternate week;
ii)whether an order should be made that the parents transport the children’s overnight bags between their respective residences at changeovers or whether the children should be required to take their bags to school (if changeover was on a school day) for collection by the parents;
iii)the amount of time the children should spend with the husband during the Christmas school holidays each year;
iv)whether the children should spend time with the wife every New Years Eve and every Australia Day;
v)whether the children should spend time with each parent every Christmas Eve/Christmas Day or only if both parents were in the same town on Christmas Day;
vi)whether the children should always spend time with each parent on the children’s birthdays or (in respect of [Y]’s Birthday) only if both parents were in the same town on that day;
vii)whether the children should spend time with the wife between 5.30am and 8.30am each alternate [omitted] Day;
viii)the conditions to be attached to interstate and overseas travel;
ix)whether the husband should have his control over money previously held in trust for the children restored;
x)the exact wording of a notation about the parents contributing equitably to the costs of the children’s school fees and school expenses, sporting activities and mobile phones.
Prior to final submissions there was also an issue about whether an order should be made requiring the parties to attend a post-separation parenting course. However during final submissions the wife’s counsel advised the court that the wife now consented to that order being made.
The property dispute concerned the appropriate division of a small pool, which principally consists of the heavily encumbered former matrimonial home and the superannuation entitlements of each party, with the husband’s entitlement being by far the larger.
The husband proposed that the home be sold and the mortgage repaid, and that the wife keep the net proceeds of sale, her motor vehicle and her superannuation. It was his case that this would deliver the wife 62% of the pool.
The wife proposed that she receive 80% of the pool. She would like to retain the home and she proposed that she also receive part of the husband’s superannuation, by way of a splitting order.
The Evidence
The witnesses in the case were the husband and the wife.
The husband relied on his affidavits filed on 19 March 2009 and 19 August 2009, his amended application filed on 19 August 2009 and his financial statement filed on 17 September 2009.
The wife relied on her affidavits filed on 17 April 2009 and her affidavit and financial statement filed on 27 August 2009. The wife handed up proposed parenting and property orders at the commencement of the hearing.
The husband was a calm and responsive witness. He put his case plainly and made appropriate admissions during cross-examination without evasion.
The wife was highly emotional during the hearing. It was abundantly clear from the content of her affidavits, from the content of emails she sent to the husband after separation and from some of her answers in the witness box that she was hurt and bitter about the marriage breakdown. The wife’s counsel during final submissions made reference to the fact that the wife “remained emotionally affected by the separation and its aftermath.”
The hurt and bitterness felt by the wife infused her evidence (for example she could not refrain from saying that at separation she gave the husband everything from the house that he wanted, including his alcohol and she referred to the husband’s daughter from a previous marriage as ‘your offspring’). I treat the wife’s evidence with some caution.
Background
The husband is 47 and the wife 37 or 38.[1] They commenced cohabitation in Darwin in August 1996, married in April 1997 and separated on 1 January 2009. They thus had a relationship of almost twelve and a half years.
[1] The husband gives the wife’s date of birth as 1972 but in her initiating application filed on 10 August 2009 the wife gives her date of birth as 1971
There are two children of the marriage, [X], born in February 1998 and [Y], born in January 2000.
The husband was previously married and has a daughter [Z], born in 1990.
The husband is [qualified in the Legal Industry] and was employed consistently throughout the marriage as a [occupation omitted]. The wife was a [omitted] student when the parties commenced their relationship. She completed her studies in 1999 and was thereafter employed reasonably consistently as a [occupation omitted] until separation.
The parties purchased Property W in 1997 for $197,000.00 and this property became their home for the remainder of the relationship. When the parties separated on 1 January 2009 the wife remained in the home with the children and the husband rented accommodation elsewhere.
At separation the parties had a mortgage and credit card debt. They agreed that they would each contribute to the mortgage repayments and other outgoings in proportion to their incomes until a property settlement could be finalised. The husband took responsibility for payment of the number of credit card debts and he also paid the costs of maintaining his own household.
The husband commenced proceedings on 19 March 2009. The wife was aggrieved about the husband commencing property proceedings so soon after separation, but it was his case that there was some urgency in the property matters being resolved. The mortgage payments increased when the wife drew $119,000.00 from the mortgage shortly after separation, and the husband rapidly found that the requirement that he contribute to the mortgage on the former matrimonial home and other outgoings on the home and expenses for the family as well as rent on his own premises and repayment of credit card debts was placing him in an untenable financial situation.
The financial pressure on the husband increased after May 2009 when the wife’s contract ended and she became unemployed, and the husband was required to make all the payments on his own.
I accept that she has found it difficult for her to deal with court proceedings while she also dealing with her distress about the break down of the marriage. However I also accept that the husband found himself in a very difficult financial position after separation and that it was reasonable for him to commence court proceedings to resolve property matters.
The parties attempted some mediation about parenting issues, but could not agree on all relevant issues, and it was logical for the husband to amend his application so that parenting proceedings were dealt with by the court at the same time as the property proceedings.
The disputed parenting issues
The children, [X] and [Y], are close enough to 12 and 10. They attend [omitted] School and both have sporting interests. [X] is a talented swimmer who has been selected to represent the NT and [Y] does Taekwondo.
Since separation the children have lived with the wife in the former matrimonial home, and since about April 2009 they have been spending time with the husband for five nights each fortnight.
On the first day of the hearing the parties agreed on many parenting issues, including agreeing in principal that the husband should spend five nights per fortnight with the children during school terms. However a number of issues remained in dispute.
The first issue the parents could not resolve was whether the husband’s time with the children each alternate week during school terms should be from after school on Tuesday until 11.00am on Sunday or from after school on Wednesday until the commencement of school on Monday.
The Tuesday to 11.00am Sunday arrangement has been in place since April 2009 and the wife said that the children were used to this arrangement and that it suited them and should continue.
The wife queried why the husband wanted more time with the children on Sundays, saying that he frequently just sat them in front of the television. She said that they could do that at her place, and that if the children were just hanging about or ‘veging out’, they preferred to do that at her place anyway.
The wife’s evidence about the children’s relationship with the husband was relentlessly negative and I am not convinced that the picture she painted of the children’s relationship with the husband was accurate.
The husband wants to change the current arrangements so that the five nights are preserved but his time begins on Wednesday and ends on Monday. He gave two reasons for proposing the change.
Firstly he said that because the children were fairly busy with sport on many other days of the week, he would like to have them for the whole of Sunday so that he could spend more unstructured recreational time with them on a day which was not consumed by training or sport.
This problem could be cured to an extent by providing that the children’s time with the husband end at 6.00pm on Sunday. However the other reason the husband gave for wanting the time to end on Monday morning was so that he could drop the children off at school on Monday rather than at the wife’s home on Sunday.
It was the husband’s case that the wife had a “”volatile and sometimes apparently uncontrollable temper”[2] and that he did not want the wife coming to his home nor did he want to go to the wife’s home. He said that he had real fears that the wife might orchestrate an incident at changeover and then might (unjustifiably) call the police and seek a domestic violence order against him. The husband said that in his position he simply could not afford to find himself the subject of a domestic violence application.
[2] Husband’s affidavit filed 19 August 2009 paragraph 11
The wife was dismissive of the husband’s claim that she and the husband might come into conflict at changeover.
The second dispute was about changeover of the children’s bags between the parents. The wife proposed that she deliver the children’s bags to the husband’s home at the start of time to be spent with him and the husband return the children’s bags to the wife’s home at the conclusion of that time.
The wife said that the children took a lot of ‘stuff’ with them at changeover and it would be too difficult for them if they had to take all this to school and leave it in the office. She said that she had spoken to the school and they were not enthusiastic about ‘minding’ the children’s changeover baggage.
The husband opposed such an arrangement. He proposed that on school days the children should take their bags to school at the commencement of their time with him and at the conclusion of their time with him. He said that he would drive out to the school to pick up the bags on Wednesday (his preferred commencement day) and would drop the bags back to the school on the Monday morning.
The husband said that he had spoken to the school and they were happy to store the children’s changeover baggage in the school office on Wednesday morning and on Monday morning.
The third dispute between the parties was the amount of time the children should spend with the husband during the Christmas school holidays.
The parties agreed that the children should spend half of the mid year school holidays with the husband. They agreed that during the one week holidays at the end of Term 1 and Term 3 the children would spend time with the husband as they normally did during school terms, which would effectively give him half of these holidays as well. They were unable to agree however about a division of time during the Christmas school holidays.
The husband sought an order that the children spend half of the Christmas school holidays with him, alternating between the first and second half.
One of the reasons the husband gave for seeking a reasonable block of time during the Christmas school holidays was that he has family interstate. He is also a person who likes to travel. The Christmas school holidays present the best opportunity for parents to travel with children for a reasonable period of time.
The husband said that he should be permitted to exercise his own judgment during his half of the holidays as to whether he took [X] away from Darwin or not.
The husband said that while he respected [X]’s involvement with swimming it should not be allowed to overrule all other considerations including his wish to take both children away on a holiday during the Christmas school holidays and [Y]’s right to spend holiday time with the husband. The husband said that he was concerned to ensure that the children were well-rounded and did not become so engrossed in competitive sport that they neglected other interests in life.
The wife proposed was that the husband should spend fifteen days with the children during these holidays at a time nominated by her.
The primary reason put forward by the wife for wanting control over the husband’s time with the children during the Christmas school holidays was to ensure that [X] did not miss out on any swimming meets or swimming training.
[X] belongs to the [omitted] Swim Club and trains each week. In 2008 [X] represented the Northern Territory at the [omitted] Games in Canberra.
The wife is heavily involved in [X]’s swimming. She has trained to become a Technical Official at Swimming NT meets.
[Y] does Taekwondo but he is not involved with that sport to the level of intensity that [X] is with swimming.
The wife’s insistence that the husband have only fifteen days during the holidays at a time of her choosing may also have been related to her wish to spend time with the children every year on Christmas Day, New Years Eve, [Y]’s birthday and Australia Day.
If the husband has the children for half of the Christmas school holidays and particularly if he chooses to travel away with them during that period, which he might well do, the wife would not be able to see the children on all of those days every Christmas holidays.
It is understandable that the wife would want to spend time with the children on Christmas Day and with [Y] on his birthday. I accept that New Years Eve and Australia Day may also be important to the wife and may well have been the subject of planned activities in past years.
Another area of dispute was whether the children should spend part of each alternate [public holiday omitted], commencing in 2010, with the wife.
The husband opposed the wife having time with the children on [omitted] Day. [Date omitted] happens to be his birthday. The parties agreed in general terms that the children should spend time with each of them from 2.30pm on the day preceding their respective birthdays until 7.00pm on the birthday, and it was clearly the husband’s view that the wife was now staking a claim to time on [omitted] Day simply to frustrate him having a full day with the children on his birthday.
The wife said that she wanted to take the children to [activity omitted]. She said that she had done that in 2009. There was no evidence however that attending the [activity] was a family tradition and the wife did not give any compelling reason for why it was essential to the children’s well being that they be able to attend the [activity].
The next dispute between the parties was about the conditions to be attached to interstate and international travel.
The husband proposed that each party be permitted to travel interstate or overseas with the children during their period of holiday time. He said that as far as [X]’s swimming was concerned he should be permitted to exercise his own judgment about whether it was appropriate to take her away from Darwin.
The wife proposed an order that “neither parent be permitted to take [X] away from Darwin if to do so would require her to miss her swimming training or swimming meets while she chooses to swim competitively.”
She also proposed that interstate and international travel be subject to a requirement that the children be in Darwin to spend occasions of special significance (i.e. their birthdays, New Years Day, Christmas Day, Australia Day and [Y]’s birthday) with her.
The next dispute was whether the husband should have his control of the money previously in the children’s trust accounts restored.
Prior to separation the parents were trustees of the children’s bank accounts. At separation [X] had $10,089.07 in her account, and [Y] had $9,247.18.
On 1 January 2009 the wife used some of the money she drew down from the mortgage to pay $3,000.00 into [X]’s account and $3,000.00 into [Y]’s account. On 5 January the wife closed both accounts and transferred the money to new accounts in respect of which she alone was trustee.
When the wife became unemployed in May 2009 the existence of these accounts was an impediment to the wife obtaining Centrelink benefits. The wife arranged for term deposits and savings accounts to be opened in the children’s names at National Australia Bank. The children alone are the signatories for these accounts.
When the wife swore her 27 August 2009 affidavit [X] had $16,374.41 in her account and [Y] had $15,517.14 in his account.[3] The wife said that she had paid money into the accounts, in addition to the $3,000.00 deposits, since separation. She did not disclose the source of those additional funds.
[3] Wife’s affidavit filed 17 April 2009 paragraph 5
The husband said that it was irresponsible to allow children of 11 and 9 to have control of such large sums of money. He was also not confident, given the wife’s propensity to act in a volatile and impulsive manner, that she might not use the money in a way he disagreed with.
It was the wife’s case that there was no evidence that the money would be misused if it remained in the children’s control and that the husband should not have control over money she had put in post-separation. She further queried whether it was now possible to wrest the money back from the children.
The final issue was the wording of an order proposed by the wife about the husband paying amounts in addition to child support.
The parties were in agreement that they would both contribute as set out in the wife’s proposed order, but I had reservations about the wording of the proposed order.
While the parents no doubt understand what is currently encompassed by ‘school fees and school expenses’ (the children are attending [omitted] School) and understand what is currently encompassed by ‘sporting expense’s’ and ‘the children’s mobile telephones’, difficulties could arise in the future if one parent decided that the children should be enrolled at a different school or participate in a different sport or should get a different mobile phone perhaps linked to the internet or with video facilities and the other parent disagreed with choices or the expense involved.
In my view it is appropriate to make a notation rather than an order in the terms proposed by the parties. The parents clearly accept and understand what the provision means at present. If some dispute arises in the future then the parents will have to resolve it by means of an application to the child support agency for a variation of the husband’s assessed child support.
The children’s best interests
Any orders I make about the children must be orders which treat their best interests as the paramount consideration. Subsections 60CC(2) & (3) of the Family Law Act set out the considerations to which I must have regard in order to determine the children’s best interests.
The primary considerations in s.60CC(2) is as follows:
“a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”
I am satisfied that [X] and [Y] have a meaningful relationship with each of their parents, and that they will continue to have a meaningful relationship with each of their parents whether I make the orders proposed by the wife or the orders proposed by the husband.
It was the husband’s case that the wife was volatile and quick tempered, and he was critical of the wife for some of her interactions with the children, but the husband did not mount a case that the children were at risk of abuse, neglect or family violence in the wife’s separate care.
The wife complained that it was the husband who was bad tempered, and that he had sometimes gone out leaving the children at home alone, but she did not mount a case that the children were at risk of abuse, neglect or family violence in the husband’s separate care.
As to the additional considerations, there is no objective evidence of the children’s views. The wife gave a good deal of evidence about the children’s views but unfortunately the wife’s evidence as a whole was infused with considerable bitterness toward the husband, and I am not persuaded that she presented an accurate and balanced picture of the children’s views.
I am satisfied that the children have a good relationship with each of their parents. The wife maintained that she was closer to the children and more sensitive to their needs, but the husband has been uneventfully spending five nights per fortnight with the children since April 2009 and the wife consented on 23 September 2009 to this arrangement continuing.
The wife is passionately devoted to her children and I do not consider that she would have agreed to the children continuing to spend five nights per fortnight with the husband if she truly doubted that they had a good relationship with him.
The children have a sister [Z], who lives interstate, and there was nothing to suggest that they had anything other than a good relationship with her.
The wife questioned whether the paternal grandmother who lived in Darwin had a good relationship with [Y] in particular. I have reservations about whether the wife has presented an accurate picture of that relationship and can make no findings about it.
There was no evidence about the children’s relationship with the wife’s extended family, but no concerns were raised about those relationships.
Family on both sides have had interaction with the children during their lives, and it is natural and in the children’s best interests that they have opportunities to continue to spend time with extended family on both sides in the future. I consider that the husband and wife are both responsible parents who can be trusted to be attentive to the children’s comfort and well being and to limit the children’s involvement with any family members who might unacceptably threaten that comfort and well being.
The husband impressed in the witness box as being sensitive to the importance to the children of the wife’s role as their parent. I am satisfied on all the evidence that he has the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the wife.
I have some concerns about the wife’s willingness and ability to facilitate and encourage a close and continuing relationship between the husband and the children. The wife is very bitter about the marriage breakdown. In her affidavits she was dismissive of the husband as a parent and had nothing good to say about him.
It is difficult to escape the conclusion that the wife’s application to spend time with the children for part of each [omitted] Day was made because it would frustrate in part the husband spending his birthday with the children. The wife’s insistence that she spend every New Years Eve and every Australia Day with the children also had the flavour of being designed to make it as difficult as possible for the husband to take the children away during the school holidays.
The wife is however intelligent and resourceful and it could well be that once these proceedings are resolved and once some time passes, her distress will abate and she will then be able to accept the husband’s importance to the children and properly facilitate and encourage their relationship with him.
The husband’s proposal about his time with the children during school terms would result in a change for the children, but I consider that the children would adapt to that change without too much difficulty, especially if the wife could bring herself to accept the change.
There would be some practical difficulty for the children if they were required to take extra bags to school at changeover and return extra bags at the end of changeover and store them in the school office. The children may well not enjoy that intrusion on their school life.
I am satisfied that the husband has the capacity to provide for the children’s needs. I am satisfied that he is aware of the requirements of [X]’s swimming. I consider it unlikely that he would override a strongly held wish by [X] to compete in and train for a swimming meet.
I am satisfied that the wife has the capacity to provide for the children’s needs, subject to a concern about whether the wife has the capacity to provide for the children’s emotional needs at present.
I am satisfied that the wife does on occasions display “a volatile and sometimes apparently uncontrollable temper” and that since separation the children have been exposed to this behaviour.
The wife insisted that it was the husband who was aggressive and bad tempered not herself. However I accept the husband’s counsel’s submission that while there was no evidence to corroborate the wife’s claims about the husband there was ample evidence to corroborate the husband’s claims about the wife.
The husband attached to his affidavit a number of emails sent to him by the wife in which she made outrageous claims including claims that the husband had killed his first wife, and in which she subjected the husband to a plethora of offensive comments.
The incident concerning the dogs on 2 June 2009 is a further example of the wife behaving impulsively and aggressively.
On 2 June 2009 the parties attended court for a mention of their matter and it was stood down for negotiations. The parties were unable to reach an agreement satisfactory to the wife about some financial matters, and the wife left the court precincts before the matter was called back on. The husband remained at court until the matter was finally disposed of that day.
I accept the husband’s evidence that when he left court and turned on his phone he found that the wife had sent him a message saying that she was taking the four dogs, who had remained at the former matrimonial home since separation, to his flat. Shortly afterwards he received a phone call from the wife who informed him that he had better get to his place straight away as she was taking the dogs there.
I accept the husband’s evidence that the wife screamed abuse at him, saying among other things:
“you filthy fucking whore” and (a large number of times) “you fucking bastard” and also said “the kids are in the car with me, I’m on speaker, tell them why you won’t feed their dogs. Explain that to them you fucking bastard.”
The husband said that when he arrived at his flat he found the wife there with the children and the four dogs. He said and I accept that the wife continued to hurl abuse at him and that the children were upset.[4]
[4] Husband’s affidavit filed 29 August 2009 paragraphs 25-29
As a result of the wife delivering the dogs to the husband the husband was forced to give up his flat and find a larger place so that he could accommodate the dogs. This meant that his rent increased. Somewhat ironically the wife at the hearing complained about the amount of rent the husband was now paying.
The husband’s attached to his August 2009 affidavit transcriptions of a number of text messages the wife sent to his phone in August 2009 which are offensive and provocative.
A further incident occurred between the parties on Father’s Day 2009. The husband went to the wife’s home at 2.00pm on Saturday to collect the children. [X] was not at home. The husband said that the wife was difficult to engage in conversation and he eventually left, indicating that he would return later for [X]. I accept the husband’s evidence that he remained calm throughout this encounter and did not threaten the wife or raise his voice.
When the husband returned he found that the wife had called the police who were at the premises. After a brief conversation with the parties the police left. [X] was apparently unfazed by this incident and left with the husband.
Further corroboration of the husband’s claim about the wife’s volatility was her behaviour during the hearing. On the first morning of the hearing she became audibly and visibly upset to the point where she sacked her solicitor, although she later reinstated him. She was audibly and physically reactive and emotional throughout the proceedings while sitting in court and on at least one occasion the court had to adjourn because the wife abruptly left the court.
I am satisfied that the wife does on occasions behave in a impulsive, ill-thought out and aggressive manner and that when she does so in the presence of the children, as happened during the incident with the dogs and during the incident at the home on Father’s Day, she fails to properly provide for the children’s emotional needs.
There was some evidence to suggest that this was part of the wife’s personality, and was not something which simply arose out of the stress of separation and therefore might abate in time.
It was the husband’s case that the wife and his daughter [Z], who lived with the parties for the first few years of their relationship, never hit if off and that as time went by the wife treated [Z] increasingly harshly.
[Z] lived with the parties until Easter 2001, when the husband sent her to Melbourne to live with his brother. [Z] thereafter remained in Melbourne and the husband’s brother, who has no children, assumed the cost of bringing her up.
The wife denied that there were difficulties in her relationship with [Z] or that she was ever harsh toward [Z]. However her reaction to the husband giving [Z] an air ticket for her eighteenth birthday, together with her impulsive and aggressive actions toward the husband after separation, incline me to believe that the husband’s evidence about what happened between the wife and [Z] is to be preferred.
It also inclines me to be concerned that the wife has a propensity to behave in an aggressive and impulsive fashion which may continue even after the wife becomes reconciled to the separation.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
I take into account that [X] is an enthusiastic swimmer who has been involved in swimming at state level.
I accept the husband’s contention that it is important that [X] be well-rounded and exposed to other influences, but if [X] is showing promise as a swimmer then it does seem to me that she should be permitted to attend meets and training if she wishes, even if this conflicts with the holiday plans of one of the parents.
I also take into account that the children through the wife have connections with South America. The children will be able to maintain a connection with that part of their heritage through the wife, no matter what orders I make in these proceedings.
Finally I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
In my view orders which are drafted as broadly as possible, and are not hemmed about by too many conditions, and orders which are designed to deal with arrangements for the children in the longer term as well as the arrangements which are appropriate while [X] is swimming competitively, are the orders least likely to lead to the institution of further proceedings.
Conclusion about parenting matters
In respect of the issue of the time the children should spend time with the husband during school terms, the choice is between the proposals that the time be from Tuesday to Sunday at 11.00am or alternatively at 6.00pm, or whether it should be from Wednesday until Monday.
If the husband’s time is to end on Sunday there is no compelling reason why it must end at 11.00am, and in my view it would be in the children’s best interests to be able to spend a whole weekend with the father instead of part of a weekend.
The real issue is whether the time should end on Monday morning rather than Sunday evening. If it does it must automatically commence on Wednesday to fit in with the parties’ agreement that the children spend five nights per fortnight with the father.
The court is not of course bound by the proposals of the parties and another option would be to order that the time be from Tuesday until Monday morning. However neither party proposed that the children should spend six rather than five nights with the husband nor did they have an opportunity to make a submission about this possibility and I intend to consider the matter within the parameters set by the parties.
The husband’s primary reason for wanting to return the children to school on Monday rather than to their home on Sunday was so that he could avoid any risk of a confrontation with the wife.
I can understand why the husband is concerned about the possibility of a confrontation occurring with the wife. However the children are almost 12 and almost 10 and they are quite old enough to walk some distance from the respective parent’s car into the home, carrying their own bags (and if necessary making two trips). It will be more comfortable for the children if they are able to have their bags dropped off at home, rather than being required to take the bags to school and have them stored in the school office.
The children are both involved in sports and they take a reasonable amount of stuff with them when moving between their parents households. It is not reasonable to expect the school to care-take the children’s belongings in the school office, and it would be preferable if the parents took charge of transporting the belongings between their respective homes.
On public holidays such as Christmas Day and on changeovers during school holidays the parents are going to have to manage a civil changeover at some place other than the school in any event.
The issue is a finely balanced one but in my view the best arrangement, and one best approaching normality for the children, is to order that the changeover happen at the front gate of each parent’s residence. If the husband is concerned about being exposed to false allegations he may need to take someone with him for the changeovers for a period of time.
Given the difficult relationship between the husband and the wife at present, there is also something to be said for leaving in place an arrangement approximating to the one which has been in place since April, rather than changing and unsettling the arrangements.
I therefore intend to order that the husband’s time during school terms be from Tuesday to 6.00pm Sunday. I intend to make the changeover orders sought by the wife, save that I also intend to order that neither parent get out of their car at the other parents residence except to assist the children to remove belongings from the car.
In my view it is in the best interests of the children that orders about the husband’s time with the children during the Christmas holidays are made in the usual terms, with the children spending alternate first and second halves of the holidays with the father.
I do not intend to impose a restriction on either parent travelling away with the children during their period of holiday time.
This might mean that in some years the parents are not each able to spend time with the children on [Y]’s birthday and on Christmas Day. However the three week block periods at Christmas to which each parent will be entitled gives that parent the opportunity to travel interstate for a meaningful period to see family or simply to holiday, and also gives each party the opportunity to travel internationally with the children if they wish to do so.
If orders are made that the children must remain in Darwin so that each parent can spend both Christmas Day and [Y]’s birthday with them, it will be difficult for each parent to make appropriate travel plans. In my view the children’s best interests would be served by an order which allowed them to accompany their parents on holiday. They are old enough to endure without harm a situation where from time to time they do not see one of their parents on Christmas Day and [Y]’s birthday.
I will make an order that each parent spend time with [Y] on his birthday if both parents are in Darwin.
The difficulty for the husband of being able to travel during the Christmas holidays would be compounded if the children were also required to spend each New Years Eve and Australia Day with the wife.
The wife did not provide any compelling evidence about why the children’s best interests required that they spend these occasions with her every year and I am not going to make an order about these days.
In my view the husband can be trusted to make a child focussed decision about his holidays giving way if [X]’s swimming requires it. The husband is proud of [X]’s achievements just as the wife is. However there is merit in the husband’s submission that [X] needs to have opportunities to engage in family life and that on occasions the swimming may need to take a back seat. It is also not in either child’s best interests if [X]’s needs should always trump [Y]’s needs.
I do however intend to make an order that if [X] has swimming meets or training needs for those meets which she wishes to attend and the father is not willing to remain in Darwin then the father shall return [X] to the mother’s care.
I am not going to make an order that the children spend part of [omitted] Day each alternate year with the wife. There is no long standing tradition of the family attending [activity omitted] and no particular connection of these children to any [omitted] Day ceremonies.
The remaining issue is whether the husband (and indeed the wife) should be restored as trustee of the children’s bank accounts.
One of the wife’s objections to the husband’s proposal was that she had had deposited money into the children’s accounts post separation (in addition to the amount drawn down from the mortgage) and she considered it unfair that the husband become trustee for money he had not deposited.
The wife’s counsel further submitted that there was no evidence that the wife would misuse the children’s money and that therefore there was no justification for an order that the husband be re-instated as a trustee.
I accept that there are no reasonable grounds to believe that the wife would waste or misuse the children’s money. While I am satisfied that the wife is prone to volatile and impulsive behaviour and while her action in respect of increasing the mortgage after separation is open to strong criticism, I am also satisfied that she is fiercely protective of her children.
However in my view this is not the end of the matter. The large amount available to the children was principally accrued during the marriage and during the marriage both the husband and wife were trustees of the accounts. The wife unilaterally put an end to this. On the wife’s evidence the money was intended to be for the children’s future education. I accept the husband’s submission that it is not satisfactory that children of almost ten and almost twelve should have sole control of such large sums of money.
The parents have agreed to an order that they have equal shared parental responsibility for the children and in my view it is reasonable that they should have equal control over the money which was formerly in the children’s accounts.
If the wife wishes to open new accounts for each child into which she alone deposits money in the future then she is at liberty to do so.
I intend to order that the husband and wife sign all documents and do all acts and things required to ensure that the money in the children’s NAB accounts is transferred to accounts in respect of which both the husband and wife are trustees.
Property matters
Section 79(1) of the Family Law Act permits the court to make such orders as it considers appropriate altering the interests of the parties in the property of the parties.
Section 79(2) provides that:
“The court shall not make an order under this section unless it is satisfied that, in all the circumstances of the case, it is just and equitable to make the order.”
Section 79(4) sets out the matters which the court is required to take into account in considering what order (if any) it should make.
In Hickey & Hickey [5] the Full Court said as follows:
“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a),(b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case….”
[5] Hickey & Hickey(2003)FLC93-143
The following statement by Gibbs CJ in Mallett & Mallett[6] is particularly apposite however:
“Decisions in particular cases of that kind can, however, do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the Court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all circumstances of the particular case.”
[6] Mallett & Mallett (1984) FLC 91-507
Assets & Liabilities
The non-superannuation asset pool consists of the following:
Description
Ownership
Value
Property W Joint 473,000.00 Toyota Kluger Wife 30,000.00 Total $503,000.00
The wife purchased the Toyota Kluger for $47,000.00 post-separation by drawing down on the mortgage. The husband is aggrieved about the wife’s actions. I will consider that issue further in the context of considering s.75(2) matters, but the vehicle must be included in the pool at its current value, which the parties agreed was $30,000.00. The value of Property W was also agreed.
The wife has the majority of the household furniture but neither the husband nor the wife proposed that any amount should be included in the pool for furniture.
The wife’s counsel submitted that an amount of $13,542.62 which the husband received on about 17 June 2009 when he ceased his employment at [C] should be added back to the pool. This money included a component of holiday pay which accrued prior to separation.
The husband said, and I accept, that this money is all gone. He used $2,800.00 to pay a bond when he was required to change accommodation after the wife demanded that he take the dogs. The balance was used to pay debts.
In Re NHC & RCH[7] the Full Court said as follows:
“we would in the present context draw attention to the following observations by later Full Courts:
2.11 There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge. (Marker [1998] FamCA 42, 1 May 1998, per Baker, Kay and Chisholm JJ.)…
46. Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives. (Cerini [1998] FamCA 143, 8 October 1998, per Nicholson CJ, Ellis, Kay JJ.)”
[7] Re NHC & RCH (2004)FLC 93-204
The money the husband received from [workplace omitted] is gone, and I accept that it was used to pay debts or to meet the husband’s reasonable post-separation commitments. I do not consider that there is any basis for adding it back to the pool as a notional asset.
The bond may ultimately be recovered by the husband, but on the other hand not all of the $13,542.62 is attributable to pre-separation efforts, so the fact that the bond may ultimately be recoverable does not alter my findings.
The parties agreed that the following liabilities should be taken into account:
Description
Ownership
Value
Mortgage secured over the Property W property Joint 370,000.00 Members Equity Mastercard Husband 11,961.00 Citibank credit card Husband 9,649.00
Although the mortgage currently stands at about $370,000.00, at separation it stood at $262,469.00. Almost immediately after separation the wife, without any consultation with the husband, withdrew $119,700.00 from a line of credit and increased the mortgage by that amount.
The wife’s immediate use of the money was as follows:
i)Money placed in [X]’s account 3,000.00
ii)Money placed into [Y]’s account 3,000.00
iii)Wife’s visa card for household maintenance 8,000.00
iv)Air conditioner, [X]’s room 3,000.00
v)[omitted] School fees 2009 10,000,00
vi)Purchase of Toyota Kluger 47,000.00
The wife paid $3000.00 into each of the children’s accounts in retaliation for the husband giving his daughter [Z] an eighteenth birthday present of about $3000.00.
In my view the husband could have legitimately sought to have this money retrieved from the children and returned to the pool but he did not seek to do so and this amount is effectively gone from the pool. I shall deal with the wife’s conduct in this regard however when dealing with s.75(2)(o).
The wife did not adequately explain what happened to the $8,000.00 she paid onto her credit card for home maintenance. However it was not suggested that any of this amount still existed. The husband did not seek an add-back in respect of this amount, but I will consider it further in the context of considering s.75(2)(o).
I will also consider the payment of the other amounts further when considering s.75(2) factors.
The wife kept the balance in an account under her control. After correspondence between lawyers the wife used the balance as follows:
i)[S]’s account 18,700.00
ii)[D]’s account 7,425.00
iii)Husband’s tax bill 7,694.00
iv)Balance paid back into mortgage account 11,181.00
The reason that the wife was able to drawn down such a large amount against the mortgage post-separation was that prior to separation the parties had increased their mortgage facility by $100,000.00 to provide them with funds to pay for renovations they were proposing to carry out at the former matrimonial home.
In preparation for the renovations the parties commissioned Mr S to draw up plans and post-separation when the renovations were cancelled he rendered an account for $18,700.00. The parties also incurred received a bill for of $7,425.00 for engineering costs.
The wife paid these debts from the $45,000.00 she had remaining in March 2009. It was her case however that these amounts should be “added back” to the pool. She said that the husband had gone ahead with the renovation plans knowing full well that he did not intend to remain in the marriage. When the marriage ended the renovations were naturally abandoned and the parties thus e lost $26,125.00 as a result of the husband’s actions.
The husband conceded that he commenced an affair with his current partner Ms W prior to separation, and he admitted that he was conflicted about the situation but he denied that he had any fixed plan over a period of months, and while the renovations were being planned, to end the marriage.
The husband is open to criticism for his behaviour, but it was clear that this behaviour itself did not end the marriage and indeed the incident which led to the husband leaving was the argument between the parties over the husband’s eighteenth birthday gift to his daughter [Z].
If there was any merit in the wife’s argument that the husband recklessly incurred the debt and committed waste the appropriate way to deal with the matter would be pursuant to s.75(2)(o) rather than by way of add-back. However I am not persuaded that there is any merit in the wife’s argument that the husband alone should bear responsibility for the architect’s bill and the engineer’s bill.
The wife also claimed that the amount of paid to the ATO on the husband’s behalf should be added back to the pool.
The husband’s tax bill was attributable to the husband doing some work as a barrister during the 2007- 2008 financial year. I am satisfied that the ATO debt was legitimately incurred by the husband during the marriage in pursuit of income earning opportunities, and there is no justification for adding this amount back to the pool.
The husband claimed that three additional debts should be taken into account, as follows:
GE Creditline Husband 6,815.00 AMEX Husband 13,969.00 CBA Visa Husband 6,461.00
The GE Creditline debt stood at $600.00 at separation. It was increased after separation as a result of the husband buying furniture, a laptop and computer equipment and rugs and other items required to set up his flat.
In my view it is reasonable to exclude the GE debt entirely from the liabilities. The husband has been making repayments on the card and the $600.00 would have been nominally repaid post-separation. The wife should not be required to accept responsibility for the husband’s post separation purchases, especially in circumstances where the husband did not include the items he purchased in the asset pool.
The AMEX debt stood at $6,291.00 at separation and stood at $13,969.00 at the date of hearing. The wife conceded that $2,141.00 of the AMEX debt should be included as a relevant liability. However she said that she should not be liable for the balance.
The amount owing on the AMEX card in early January 2009 included $3,017.00 used to by the husband to purchase an airline ticket for his daughter [Z] in December 2008, $400.00 used to purchase a gift for [Z], and $600.00 in hotel expenses incurred by the husband immediately after he left the home.
[Z] was part of the lives of these parties throughout their relationship. The gift the husband gave [Z] was made during the marriage and it was not disproportionate to the occasion i.e. an eighteenth birthday. I do not accept that the AMEX debt should be reduced by $3,417.00 to take account of amounts attributable to the gift to [Z].
The $600.00 for hotel accommodation immediately after separation was not in my view an unreasonable expense. The husband had to obtain accommodation after separation and he did not stay at the hotel for a lengthy period.
It was the husband’s case that the AMEX debt had increased after separation despite him making regular payments because he found it impossible to maintain all the debt repayments post separation, especially after the wife became unemployed, and meet his other legitimate outgoings and had to use the card to survive financially.
I accept the husband’s evidence and intend to include the AMEX debt in the pool in its entirety. However I will then need to be careful that I do not double count when considering the husband’s claim that he should receive credit for post-separation contributions because of his contribution to debt repayments.
The wife objected to being liable for any part of the CBA Visa card debt as she said that she had no knowledge of how the card was used prior to separation. Moreover the debt had increased from $3,435.00 to $6,461.00 post-separation.
The husband incurred some debt on his credit cards in relation to trips he made in order to pursue an affair in the later part of 2008. However he maintained that he had mainly pursued the affair when otherwise travelling legitimately to conferences.
It is impossible to isolate an amount on the CBA credit card or any other card which might be linked to the husband’s pursuit of the affair. I also accept that if the debt on this card increased after separation it was because the husband struggled to meet all his post-separation financial obligations. I intend to include the amount owing on this card as a relevant liability but I will consider the issue of the expenditure on the credit cards further when considering s.75(2)(o) matters.
The wife has two credit cards, with Members Equity and HSBC. To the best of my knowledge the debts on these cards ($2,420.00 and $1,885.00) are both post separation. I do not intend to include these debts as relevant liabilities but will take them into account when considering s.75(2) factors.
In my view the liabilities which should be taken into account are as follows:
Description
Ownership
Value
Mortgage secured over the Property W property Joint 370,000.00 Members Equity credit card Husband 11,961.00
Citibank Husband 9,649.00 AMEX Husband 13,969.00 CBA Visa Husband 6,461.00 Total $412,040.00
The net non-superannuation asset pool is thus $90,960.00.
The superannuation is as follows:
Unisuper and Australian Super Husband 155,078.00 Australian Super & AGEST & Unisuper Wife 54,471.00 Total 209,549.00
Contributions
The evidence was that neither party had any significant assets at the commencement of cohabitation. The husband was employed prior to the commencement of the relationship but he did not give any evidence that he came into the relationship with superannuation.
The parties purchased Property W in 1997 and the husband’s mother gave the parties $30,000.00 to assist with the purchase.
The wife claimed that this amount was repaid to the paternal grandmother during the relationship. During cross-examination however she conceded that she had no evidence that it had ever actually been repaid and no recollection of any actual repayments having been made. I accept the husband’s evidence that this amount was a gift.
The husband worked consistently throughout the relationship and his salary increased over the twelve years of the relationship.
The wife was a student at the commencement of the relationship. She completed her degree in 1998. In 1999 she completed her [omitted] and had some employment and from 2000 onwards was employed [in the Legal Industry].
The husband conceded that the wife carried out the majority of the parenting and many of the homemaker duties during the relationship. He said however that he also played his part including getting the children up and ready on school mornings and taking them to school and that he did most of the cleaning and cooking, and I accept the husband’s evidence.
The husband’s counsel submitted that the husband should receive an adjustment in his favour in respect of contributions because he earned more money than the wife during the relationship and because he provided financial support to the wife in the first years of the relationship when she was completing her degree.
I accept that the husband did earn more and that he did support the wife in completing her degree but in the context of a twelve year relationship where both parties worked to the best of their ability when employed and where the wife took on the role of the primary carer for [X] and [Y] immediately after their birth and did not oblige the husband to interrupt his career to provide care for them, I am not satisfied that the husband should receive an adjustment in his favour on the basis of his income or his support of the wife in early part of the relationship in completing her degree.
It was also submitted that the husband should receive an adjustment because of the gift from his mother. In my view this gift should attract some recognition as a special contribution by the husband. The contribution was important because it assisted the parties to acquire the real property.
This was but one of many contributions during the relationship however and it was made very early on in the marriage. In Pierce & Pierce the Full Court, in the context of considering the assessment of initial contributions, said as follows:
“In our opinion it is not so much a matter or erosion of contribution but a question of what weight is to be attached in all the circumstances to the initial contribution. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the former matrimonial home….”[8]
[8] Pierce and Pierce (1999) FLC 92-844
The same reasoning is relevant to assessing the weight to be given to a special contribution by one party during the marriage. While the contribution of $30,000.00 is significant in the context of a non-superannuation asset pool of net $90,000.00, it was made at the beginning of a twelve and a half year relationship and it represents less than 7% of the current value of the home. The wife made a significant parenting contribution during the relationship and also contributed her income over a period of eight or more years.
In my view it would be appropriate taking the gift from the husband’s mother into account to assess contributions to the date of separation as being 51.5% by the husband and 48.5% by the wife to the non-superannuation asset pool. I consider that contributions to the superannuation asset pool should be assessed as equal.
It was the husband’s case that he had made a considerable post-separation contribution by taking on responsibility for the whole of the debt repayments between May and September 2009 and a large part of the debt repayments between January and May 2009.
At the time of separation the wife was earning about $79,000.00 per annum and the husband about $130,000.00. The husband was assessed to pay child support of $377.00 per fortnight. He also contributed $120.00 per fortnight toward household expenses, $800.00 per fortnight for the mortgage and $50.00 per fortnight for pet expenses and contributed to the children’s sporting expenses, paid the credit card payments as they fell due and he paid his own rental of $600.00 per week and his own living expenses.
After May 2009 the husband’s contribution increased because the wife was no longer able to contribute. He then paid an extra $400.00 per fortnight for the mortgage, $400.00 per fortnight to the children’s accounts and $686.00 per fortnight child support.
The husband said that he was unable to meet all the expenses as time went by without increasing his credit card debt and borrowing from his partner and family.
To an extent the wife now shares in the result of this because I have included the husband’s credit card debts as relevant liabilities. However the husband also had recourse to his family and partner to borrow an amount of $9,000.00 and he did not seek to include this amount as a relevant liability.
I accept that the husband did make a considerable post-separation separation contribution but the husband was in a stronger financial position post separation and the wife was unemployed from May until September 2009 and did not have the capacity to contribute other than by parenting the children.
In my view in all the circumstances the husband should not receive an adjustment in his favour for his for post-separation contributions and contributions overall should be assessed as 51.5% by the husband and 48.5% by the wife to the non-superannuation asset pool and as equal to the superannuation asset pool.
This would entitle the husband to $46,844.40 of the non-superannuation pool and $107,917.73 of the superannuation pool and the wife to $44,115.60 of the non-superannuation pool and $101,631.27 of the superannuation pool.
Section 75(2) Factors
I am next required to consider the matters in s.79(4)(d) - (g) as far as they are relevant. In the circumstances of this case, the proposed orders will not affect the income earning capacity of the parties’, and there are no other orders between the parties which I need to take into account. I will take into account the child support the husband is paying when considering s.75(2)(na).
The husband is 47. He is now employed by [omitted] and receives a package of $180,799.00 per annum. The package includes superannuation and a novated motor vehicle lease.
The husband is on a contract which expires in June 2011. He has however on any assessment been on an upward trajectory over the last decade as far as his career and salary is concerned. He did not suggested that after June 2011 he would find himself unemployed or on a significantly lower salary. He agreed that he had good prospects of future employment.
The husband is in the [occupation omitted] and if he does [omitted] work in this connection he can earn between $120.00 to $150.00 per day. The husband said that at most he would be required to work for ten days each year. He has received little remuneration from this employment to date.
The husband made no complaint about his health.
The husband rents a three bedroom townhouse and pays $520.00 per week rent. This is not high by Darwin standards. The husband conceded that he had only been paying $300.00 per week for the two bedroom flat he lived in immediately after separation, but pointed out that he had been forced to give up his two bedroom flat (which did not have a yard) when the wife delivered the four dogs to him in June 2009.
The wife’s counsel suggested to the husband that the wife was now willing to take the dogs back and that it would be reasonable for him to return them and look for alternative accommodation. However given what I am satisfied is the wife’s volatility I can understand why the husband would be reluctant to do this.
The husband is liable for credit card debt in his name in the amount of about $48,855.00 and will continue to be responsible for these debts after these proceedings finish. In addition to this he borrowed $5,000.00 from his brother on 6 January 2009, $2,000.00 from his wife and $2,000.00 from his partner. These debts are not the subject of any formal agreement but the husband considers himself obliged to repay them.
The husband also owes about $26,000.00 in legal fees.
The husband said that after the proceedings were finished he intended to take out a personal loan and consolidate his debts. The husband said that his preliminary inquiries indicated that he could borrow up to $80,000.00 once the property proceedings were finalised and he was relieved of liability for the mortgage.
The husband is in a new relationship and his partner stays with him (or he stays with her) on most nights when the children are not with him. What evidence there is suggests that the husband’s partner is in a good financial position and is not likely to become dependent on him.
The husband was paying $385.00 per week child support for the children at the time of the hearing. This should have reduced as a result of the wife obtaining employment.
I do not accept the argument that the husband’s current income earning capacity is a product of the marriage. The husband simply built during the marriage on the skills and experience he acquired prior to the marriage. The wife did not make sacrifices to allow him to pursue his career.
The wife is 37 or 38. She was unemployed from 22 May 2009 to the end of September 2009 but at the time of the hearing had just obtained employment.
The wife [obtained occupational qualifications] in February 2000. She was steadily employed as a [omitted] between 2001 and May 2009 on packages as high as $98,951.00. The wife worked for [omitted] on a three month contract which ended in May 2009. In this job she was on package of $83,803.00.
This is not a case in which the wife’s ability to earn an income has been affected by the marriage. The wife was a student when the parties met and during the marriage was able to complete her degree and pursue employment, although she did have some time off in 2000 at the start of her career when [Y] was a baby.
I am satisfied that the wife has good prospects of continuing in well paid employment
The wife owes $1,885.00 on an HSBC Visa Card and $2,420.00 on a Members Equity Card. She owed legal fees of $20,000.00 in August 2009, and her legal fees are no doubt considerably higher since the hearing. The wife did not give any evidence about how she proposed to pay her legal fees.
The wife has not re-partnered.
As a result of the parenting orders the wife will have the primary care of [X] and [Y].
It might be argued that the husband’s higher income earning capacity should attract an adjustment in favour of the wife. However the husband is nearly 10 years older than the wife. Apart from four months in 2009, she has had steady employment as a [omitted] for over eight years and she might well be in a similar position to the husband in ten years time.
The strongest argument for an adjustment in favour of the wife for s.75(2) factors is that she has the primary care of the children. Because of the husband’s income she receives and will continue to receive a very good level of child support and she has a job which pays her a reasonable salary. However in Clauson v Clauson the Full Court said as follows:
“It should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunities, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails.”[9]
[9] Clauson v Clauson (1995) FLC 92-595
The wife may not lose career opportunities as a result of having the care of the children but the other observations in Clauson are relevant to the wife’s situation.
However in addition to the matters which relate to the parties current circumstances and future prospects there are a number of matters in this case which need to be considered in the context of s.75(2)(o) that is, any other matter which the justice of the case requires the court to take into account.
The wife increased the parties’ debt by 25% when she unilaterally drew down $119,700.00 on the line of credit immediately after separation. As a result the loan repayments increased from $942.47 per fortnight to $1297.20 per fortnight which in turn increased the burden on the husband who was assisting with the mortgage and also paying for accommodation elsewhere.
The wife used some of the funds drawn from the mortgage to purchase a new Toyota Kluger. I accept that the wife needed a motor vehicle after separation but I do not accept the wife’s evidence that she believed that she had the husband’s consent to purchase this particular vehicle.[10] I consider it likely that the wife acted impetuously and with a degree of anger and bitterness when she purchased this particular vehicle. As a result of the purchase $17,000.00 was rapidly lost from the pool.
[10] Wife’s affidavit filed 17 April 2009 paragraph 10
The wife’s use of $10,000.00 of borrowed funds to pay the children’s school fees a year in advance (rather than the school fees being paid from earnings as they fell due), and the $6000.00 was transferred to the children from borrowed funds, and the $3,000.00 used for air conditioning for [X]’s bedroom were all actions which in my view might come within the definition of waste.
These amounts totalled $36,000.00. In addition the wife paid $8,000.00 onto her credit card for “household maintenance” and has never properly accounted for this money.
There are some matters pertaining to the husband which need to be offset against this waste by the wife. The husband used his credit card in the later part of 2008 to meet the cost of trips interstate in pursuit of an affair and the wife should not be held liable for this expenditure.
The wife also contributed both financially and non-financially to the husband’s daughter [Z] between December 1996 and 2001, and she had no legal obligation to make this contribution..
In my view however when all these s.75(2)(o) factors are weighed and balanced what looms largest is the wife’s action in increasing the mortgage after separation. If the pool were larger, this would be a significant factor mitigating against any substantial adjustment in the wife’s favour for s.75(2) factors, in spite of the wife having the primary care of the children.
The real difficulty here however is that net non superannuation asset pool is very small.
Making an adjustment in the wife’s favour in respect of the non-superannuation pool only will do the wife little good, as the non-superannuation pool is worth only $90,960.00.
It would not be of any benefit to the wife nor would it be reasonable to make an adjustment in the wife’s favour for s.75(2) factors in respect of the superannuation pool. The wife is 37 and the children are almost 12 & 10. The care of the children is not keeping the wife out of the full time work force and there was no evidence that this responsibility might impede her career and therefore her ability to accrue superannuation.
Making an adjustment in the wife’s favour in respect of the superannuation pool will not assist the wife with the day to day care of the children and the children will both be 18 long before the wife retires. It will not assist the wife to retain the former matrimonial home. It will operate unfairly to the husband, who is nearly 10 years the wife’s senior and thus has 10 fewer years in the workforce to accrue superannuation.
In my view the outcome which is likely to work greater justice to the wife than an outcome dictated by the application of percentages to the respective pools is the outcome proposed by the husband namely, that the wife retain the Kluger, the entire equity in the former matrimonial home and her superannuation.
This would give the wife net assets of about $133,000.00 (being the car valued at $30,000.00 and the house at net $103,000.00). She would also retain superannuation worth $54,471.00.
The wife will of course retain a substantial debt for legal fees and her two credit card debts totalling $4,305.00 but there is no money available elsewhere in the pool to assist the wife in that regard.
The husband in this scenario would retain his superannuation of $155,078.00. He will retain no tangible assets, and will retain substantial credit card debt. When the credit card debt is added to his legal fees he will be required to borrow about $80,000.00 in order to consolidate his debts.
Although in this scenario the husband will retain a significant debt, but he can consolidate it and he is a high income earner. He will also retain his superannuation and he is 10 years closer to retirement than the wife.
The wife will receive the maximum cash to assist her to either retain the home or to put a deposit on a new home.
On the above figures this would give the wife close to 65% of a combined asset pool, and not only that, she will retain all of the tangible assets. In my view this is a just and equitable outcome.
Whether the proposed orders are just and equitable
The wife said that she would like the opportunity to retain the home. She asked that she be given three months from the date of the judgment to elect whether to take up this option. In the meantime she proposed that she and the husband continue to pay the mortgage and outgoings on the home in proportion to their salaries. She proposed that they come back to court for machinery orders if the house needed to be sold.
In my view it would not be reasonable to require the husband to continue making repayments for a further three months. The wife has by now been in employment for three months and she has a solid employment history. I intend to give the wife forty nine days (I would have given her forty two days but for the Christmas break) from the date of the orders to refinance the mortgage. If she is unwilling or unable to refinance the mortgage debt by the end of that time the home must be placed on the market.
I accept that during this period the husband will be required to continue paying the credit card debts and will not be able to apply for a personal loan to consolidate the debt. This will be a burden for the husband but he is the higher income earner and I am satisfied that it is appropriate that he continue to contribute to the welfare of the wife and children in that way for a further seven weeks.
The remaining issue is appropriate orders if the home has to be sold. If it has to be sold then commission may need to be paid, and if this happens it may diminish the amount immediately available to the wife. However there is no money elsewhere in the pool to compensate the wife for this.
If the home sells for considerably in excess of $473,000.00 then the wife may receive more than envisaged in the calculations. However the husband did not propose that any orders to be made to allow him to receive a percentage of the sale proceeds if that occurred. I therefore simply intend to order that if the house is sold the wife receive the proceeds of sale.
For all the above reasons the orders of the court will be set out at the beginning of the judgment.
I certify that the preceding two hundred and fifty-eight (258) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Barbara Cameron
Date: 24 December 2009
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