Saldowne and Reith
[2010] FamCA 169
•26 February 2010
FAMILY COURT OF AUSTRALIA
| SALDOWNE & REITH | [2010] FamCA 169 |
| FAMILY LAW – CHILDREN – With whom a child lives FAMILY LAW – PROPERTY SETTLEMENT |
| APPLICANT: | Ms Saldowne |
| RESPONDENT: | Mr Reith |
| FILE NUMBER: | PAF | 637 | of | 2006 |
| DATE DELIVERED: | 26 February 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 23, 24, 26 November 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney |
| SOLICITOR FOR THE APPLICANT: | Meyer Pigdon Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bell |
| SOLICITOR FOR THE RESPONDENT: | Matthews Folbigg |
Orders
That all existing parenting orders in relation to the children
A born … April 2002 and
L born … July 2003 (‘the children’)
are discharged.
The children will live with the mother at all times other than the periods prescribed in order 3, during which they will live with the father.
The children will live with the father during the following periods:
3.1from the conclusion of school on Friday until the commencement of school on Monday, or Tuesday if this time falls on a long weekend, each alternate weekend during school term time to commence on the first weekend of each school term
3.2each other Wednesday during school term time, from the conclusion of school until 7:00pm
3.3from 5:00pm on Friday until 5:00pm on Monday on the Queen’s Birthday and Labour Day weekends in each year
3.4from 9:00am on 5 April 2010 until 5:00pm on 9 April 2010
3.5from 9:00am on 13 April 2010 until 5:00pm on 17 April 2010
3.6for one half of all school holidays, commencing in July 2010 and being the first half in even-numbered years and the second half in odd-numbered years unless the parents otherwise agree in writing, subject to orders 4 and 5
Unless the parents otherwise agree in writing, the children will spend the following periods with the father:
4.1from 3:00pm on Christmas Eve until 3:00pm on Christmas Day when the children are in the care of the mother for the first half of the Christmas school holidays
4.2from 9:00am on Good Friday until 9:00am on Easter Sunday in 2011 and each alternate year thereafter
4.3for approximately 3 hours on each child’s birthday, being from 9:00am until 12:00noon on a weekend or school holiday or from the conclusion of school until 7:00pm on a school day if the children are in the care of the father on those days
4.4from 9:00am until 5:00pm on Fathers Day if the children are not otherwise in his care on that day.
Unless the parents otherwise agree in writing, the children will spend the following periods with the mother:
5.1from 3:00pm on Christmas Eve until 3:00pm on Christmas Day when the children are in the care of the father for the first half of the Christmas school holidays
5.2from 9:00am on Good Friday until 9:00am on Easter Sunday in 2012 and each alternate year thereafter
5.3from 9:00am until 12:00 noon on each child’s birthday, if those days fall on a weekend or school holiday when the children are in the father’s care
5.4from 9:00am until 5:00pm on Mothers Day if the children are in the father’s care on that day.
Unless the parties otherwise agree in writing, they will effect changeovers by:
6.1the father collecting the children from and returning them to school for the purposes of order 3.1
6.2the father collecting the children from school and returning them to the mother’s home for the purposes of order 3.2
6.3the mother delivering the children to the father’s home and the father returning them to the mother’s home at the commencement and conclusion respectively of all periods prescribed in orders 3.3, 3.4, 3.5, 3.6 and 4
6.4the father delivering the children to the mother’s home and the mother returning them to the father’s home at the commencement and conclusion of all periods prescribed in order 5
7.1 The mother is restrained from involving either child in any further therapy with Ms C.
7.2The parents will forthwith do all things necessary to arrange for and implement therapy for the children and themselves as recommended by Dr M.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Settlement of Property
Within three (3) calendar months of the date of these orders, the husband will pay to the wife the sum of $372,400.
Simultaneously with and upon payment of the sum of $372,400 by the husband to the wife, both parties will do all things and execute all documents required to effect the transfer to the husband of the whole of the property situate at and known as W property in the State of New South Wales.
The husband will indemnify the wife and keep her indemnified against all liability for the debt to the husband’s mother.
The husband will indemnify the wife against all liabilities of whatsoever nature attaching to the property at W including but not limited to rates, utilities and insurance.
All material produced on subpoena be returned.
IT IS NOTED that publication of this judgment under the pseudonym Saldowne & Reith is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAF 637 of 2006
| MS SALDOWNE |
Applicant
And
| MR REITH |
Respondent
REASONS FOR JUDGMENT
the proceedings
Mr Reith and Ms Saldowne are in dispute as to settlement of property and parenting orders in relation to their children:
A born in April 2002 (8) and
L born in July 2003 (6).
The applicant, Ms Saldowne, sought orders that the children live with her and spend time with their father each alternate weekend; each other Wednesday afternoon and for half of all school holidays. Weekend time would commence after school on Friday and conclude at 5:00pm on Sunday. Until March 2010 school holiday time would be broken into four day blocks and would then extend to continuous periods. The respondent, Mr Reith, proposed a week-about equal time arrangement for the children.
The Evidence and Witnesses
The applicant wife, Ms Saldowne, relied on her affidavits sworn on 29 May 2009 and 30 October 2009, together with her Financial Statement verified on 30 October 2009. I feel compelled to comment on the size of the affidavits filed in the wife’s case. Her affidavit sworn on 29 May 2009 consisted of 402 pages and was approximately 4cm thick. I was concerned at the cost to the wife and the time required of me to read this volume of material.
The respondent husband, Mr Reith, relied on his affidavit sworn on 16 October 2009 and Financial Statement verified on the same date. He also relied on an affidavit of his mother, Mrs Reith, sworn on 16 October 2009.
The wife also relied on affidavits of Ms C, a psychologist, sworn on 18 January 2008, and her brother-in-law, Mr S, sworn on 2 November 2009. Mr S was not required for cross-examination.
Ms C saw the wife and A on several occasions in November and December 2007. She prepared a report which was undated but must have been written in December 2007. Ms C also gave oral evidence.
Ms C did not see the husband or L, yet she purported to offer opinions as to the outcome of the proceedings. She also purported to assess L’s psychological state without the benefit of any interview with or assessment of him. With due respect to Ms C, these limitations mean that I treat her evidence with considerable caution. I place far greater weight on the evidence of the single expert, Dr M.
I had the benefit of a number of expert reports. A real estate valuer, Mr B, valued a property at E, at $360,000 as at 1 July 2000. This evidence was unchallenged.
I also had the benefit of a Family Report dated 20 December 2006 prepared by a Family Consultant, Ms P. She was not required for cross-examination.
I also had the assistance of two reports by the court-appointed expert, Dr M, dated 16 September 2007 and 10 June 2009. Dr M gave oral evidence in addition to her two reports.
I was assisted also by a report dated 16 November 2009 from a chartered accountant, Mr G. He prepared valuations of the husband’s interest in the companies R Pty Limited and Systems Pty Limited. Mr G was not required for cross-examination.
Background
The husband, who is now 45, and the wife, who is now 42, commenced cohabitation on 1 July 2000 and married in October 2000. At this time the husband was employed as an analyst and the wife operated her own business in health services.
Each of the parties had an interest in real estate when they commenced cohabitation. The husband owned the property at E, which he had purchased from his mother in March 1999 for $320,000. He paid $90,000 to his mother on settlement of the purchase. The parties disagreed as to what repayments have since been made and the current balance of this alleged loan.
At the commencement of cohabitation the wife was the joint owner of a property at O, which she had purchased with a friend for $301,000 in August 1996. Each owner contributed savings of $38,000 and they jointly borrowed the balance of the purchase price, being approximately $225,000.
Between 1999 and 2001 the wife and the co-owner leased the O property and used the rental to meet mortgage repayments. The wife received approximately $151,000 when they sold the property in May 2001. Between October and December 2001 she transferred a total of $120,000 to the husband’s mother from these funds.
In August 2001 the husband transferred the E property to the parties as joint tenants. They carried out extensive renovations between July 2000 and August 2003, with the assistance of the wife’s brother-in-law, Mr S. This property was sold for $569,000 in August 2003.
The parties then purchased the former matrimonial home at W for $630,000. The husband’s mother paid the deposit of $63,000 and the balance came from the proceeds of sale of the E property, together with joint savings.
The husband holds 100 A class shares and 1 management share in a company known as R Pty Limited. The husband’s parents established this company in 1972. The husband’s mother holds one D class share, 51 preference shares and 46 management shares. The husband’s two brothers each hold one management share and 100 B & C class shares.
The husband received fully franked dividends from R Pty Limited of $5,000 on 29 September 1995, $25,000 on 20 June 1997, $25,000 on 1 December 1998 and $10,000 on 28 June 2000. The company contributed $9,780 to his superannuation fund in 1997. He has received no other financial benefits from this company.
Mr G was of the view that the husband’s shareholding in R Pty Limited has a nil value. He summarised his reasoning as follows: “….. the power and control currently held by [the husband’s mother] allows her full discretion as to the timing and amount of any future dividends as well as the individuals that will receive dividends. She also has the ability to pass on this power and control to any individual/s that she chooses.”
The husband is the sole director and shareholder of a company known as Systems Pty Limited, which he incorporated in 1996. He operated his business as a consultant via this company until he took on full time employment in 2003 or 2004. The company now owns shares in public companies. On an asset-backing basis, Mr G valued the husband’s interest in the company at $9,000 as at 30 June 2009. It was agreed that the company had a value of $15,500 at the date of trial, due to an increase in the value of its shares.
The husband worked full-time throughout the parties’ cohabitation. The wife left the paid workforce for three to four months when A and L were born. She also left the workforce at the time of the birth of the parties’ stillborn daughter in May 2001.
The parties separated under one roof on 9 January 2005. In March 2005 the wife and the children moved into rented accommodation. They moved to another house in February 2006 and finally to their present accommodation at T in February 2007. The husband has occupied the W property at all times since the separation.
The parties made their own arrangements for the children to spend time with their father after the separation. There was a dispute as to the amount of time they spent with him and the frequency of overnight stays. Ultimately interim orders were made on 24 November 2006, which provided that the children spend time with their father from 5:00pm on Friday until 4:30pm on Sunday on three out of four weekends; from 5:00pm on Friday until 9:00am on Saturday on each fourth weekend and from 4:00pm until 7:00pm each Tuesday. There was also provision for the children to spend time with each of their parents on special occasions.
On 21 January 2008 the parties consented to interim orders in relation to A’s school and L’s preschool. These orders provided that A attend N Public School and that L remain at I Preschool.
Approach to Parenting Issues
The principles which govern the determination of these proceedings are substantially set out in Part VII of the Family Law Act. Section 61C provides that each of a child’s parents has parental responsibility until the child attains the age of 18 years, unless the court makes an order which alters the statutory conferral of joint parental responsibility.
If a parenting order is made, a statutory presumption arises that it is in the best interests of a child for each of his or her parents to have equal shared parental responsibility: section 61DA(1). This presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence: sections 61DA(2) and 61DA(3). This presumption may be rebutted if the Court is satisfied that its application would conflict with the best interests of the child: section 61DA(4)
When this presumption is applied, the Court must first consider making an order for the child to spend equal time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable. If equal time is not in the best interests of the child or reasonably practicable, the Court must then consider making an order for the child to spend substantial and significant time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable: section 65DA(1) and 65DA(2)
The concepts of “substantial and significant time” and “reasonable practicability” are addressed in sections 65DAA(3), 65DAA(4) and 65DAA(5). The definition of “substantial and significant time” seems to have the aim of bringing to a child the benefit of major involvement of both parents in his or her life and allowing the child to share events of special significance with each parent. In assessing “reasonable practicability” the Court must have regard to the distance between the parents’ homes and their capacity to communicate and cooperate with each other, as well as the impact on the child of such an arrangement
If neither equal nor substantial and significant time would promote a child’s best interests, then the outcome is to be determined in accordance with the child’s best interests. The process by which a child’s best interests are ascertained involves a consideration of the objects and principles set out in section 60B and the primary and additional considerations set out in section 60CC.
The Primary Considerations: Section 60CC(2)
section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents; and
section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
A and L have two loving, committed parents. Nothing in the evidence suggested any need whatsoever to protect them from physical harm due to being subjected or exposed to abuse, neglect or family violence. In the opinion of Dr M, however, A’s psychological well-being would be placed at risk if orders are made for a week-about arrangement. It is important to trace the development of this opinion in Dr M’s reasoning, as her position shifted between September 2007 and June 2009.
In her first report Dr M identified certain pathological aspects to the children’s relationship with their mother. She reported:
“The mother shares a close relationship with the children such that she is overly concerned at minor illnesses and tends to give way to the children’s wishes rather than viewing them from an adult perspective.”
Dr M described the disadvantages of A’s failure to attend preschool for an acceptable amount of time each week. She said:
“This is likely to impact on his socialisation with his peers and will not provide him with the optimum beginning to his school career. Presumably [L] will follow in the same footsteps. It is important for children to learn that there are other adults in their circle upon whom they can rely and trust, to prepare them for school. It is also critical for children in this age group to have the opportunity to socialise with similar age children and to learn social rules of their own peer group. If they do not do so, they will stand out at school, be teased, find it difficult to make friends, all of which could impact on their future social and psychological development as they move through life.”
Dr M attributed this risk to the mother’s parenting style. She reported:
“In my view it is the mother who is holding [them] back from forming these relationships, not maliciously but because she is afraid for the children. The mother is overly indulgent with the children and clearly finds it difficult to set and maintain limits with them. The children’s behaviour is out of control and aggressive when with her. Their behaviour quickly changes when the mother is not present.
There seems to be something about the mother’s interaction with the children, particularly [A], which encourages him to behave in this way. This is detrimental to their relationship and for [A’s] future relationships.”
By contrast, Dr M detected no difficulties in the children’s relationship with their father in 2007. She reported:
“The children share a warm, caring relationship with their father who is interested in them as individuals and who understands their differing needs. Neither child showed any fear of the father although [A] showed resentment in front of his mother about having to meet with his father, this resentment was not evident when he was with his father. In fact [A] appeared to enjoy the interaction with his father. Thus I think it is likely that [A] has formed the view that his mother is pleased if he describes a bad relationship with his father, wanting to remain with his mother. I do not believe this is something the mother is consciously planning.”
Largely for these reasons, Dr M supported the husband’s proposal for an equal time arrangement in September 2007. She recommended:
“In my view, the father’s proposal for equal time would best meet the children’s interests as [A] in particular is not contained by his mother and is at significant emotional risk. He needs the security of this containment. There are also issues to do with poor socialisation of the children, which are of significant concern so close to beginning formal schooling. I strongly suggest that the children attend preschool on a regular basis to give them practice socialising with other children, prior to attending mainstream school.”
Dr M, however, made this recommendation conditionally. She reported:
“To date this [level of communication and cooperation between the parents] has been poor and for a 50/50 parenting arrangement would need to improve either by email communication or a communication book so that the children did not subvert the parents’ efforts, [A] in particular.”
By the time of the second report in June 2009, Dr M’s position had shifted substantially. Her recommendation was:
“Now that the boys are both attending school I think it is imperative the mother has some full weekend time in which she can engage more fully in the boys’ increasing recreational interests, something which she is keen to do and which would not exclude the father from attending such as swimming, scouts, soccer.
In my view it will be in the children’s best interests to spend the majority of their time with their mother ie weekdays during school time with weekends alternating between the mother and father with half school holidays shared between the parents.”
In the 2009 report Dr M observed that the children’s opportunities for socialisation had increased. She noted that the mother told her that she took the contents of the first report “very seriously”.
Dr M observed an improvement in the quality of the children’s relationship with their mother in 2009. She reported:
“The mother has always been a primary caregiver and she has a close, loving relationship with the children. At times I believe she is still overly concerned with minor illnesses but this is exacerbated by the father’s excessive cross-examination of her if there is anything wrong with the children. I am pleased that the mother has made opportunities for the children to socialise more and it is pleasing that the school has found this to be successful.
On this occasion I did not find the children’s behaviour to be out of control or aggressive when with the mother. Indeed, they responded to her instructions promptly.”
In the second report Dr M described the children’s relationship with their father as follows:
“The children share a warm, caring relationship with their father though of a different calibre to the one they share with their mother. The children are not afraid of the father but [A] is resentful of the amount of time he has to spend with his father which is time away from his mother, although he would not repeat this in front of his father. Despite this, I wondered if he felt some responsibility for the mother when not with her, to prevent her from being alone. I do not believe that this is something the mother is consciously planning.”
In both her report and oral evidence Dr M expressed a strong opinion that a week-about arrangement would place A at risk of psychological harm. In June 2009 she reported:
“I anticipate that the father will be disappointed by this report. However, for such young children and for such a sensitive child as [A] I would not be prepared to make recommendations which increase his separation from his mother and thus increase his psychic distress as this could lead to emotional problems later in life.”
In her oral evidence Dr M said of A:
“He still remains a very anxiously attached and vulnerable child. I think there is still a risk that he will regress to where he was when I first saw him.
His regression would manifest in aggression and being oppositional. He may also engage in some self-harm – he has run on to the road previously.
It would just disorganise his whole inner world. He feels safe with his mum in a very infantile sense.
It does not mean that he hates his dad but he has an allegiance with mum. He wants to keep her safe.
[A] had changed quite a lot in two years but he is still a child in emotional trouble – he seems to be struggling. Internally he is not comfortable and gets desperate at times.
He is an insecure child. It is something about him internally that is making this difficult.”
Dr M was alert to the possibility that the wife had deliberately influenced A to say that he does not want to spend more time with his father. She said:
“Obviously I considered whether [A] had been set up, even unconsciously, by his mother, but he kept going back to the theme of wanting time with mum. I was very strongly convinced by him. Children who have been set up rush in and tell you what they have to say and then get on with play or whatever I suggest but he kept returning to the theme of time with mum.”
Dr M gave no ground in relation to any of these firm opinions. Her ultimate recommendations must mean that she considers that the children can enjoy a meaningful relationship with both parents, without the necessity of an equal time regime. In her oral evidence Dr M said:
“The idea is that children should spend good quality time with each parent.”
I am satisfied that Dr M attempted to balance the need to protect A from psychological harm with the benefit to both children of an ongoing close relationship with each of their parents.
The Additional Considerations: Section 60CC(3)
section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;
In the first report Dr M said:
“The children are too young to express views showing that they understand the significance of how much time they spend with each parent.”
Her observations, however, led her to conclude that “both children clearly want to see both parents”.
In her second report Dr M said:
“The children [A] and [L] at 7 and 5 respectively are old enough to have their views considered by the court, especially [A]. There is a consistent pattern of [A] repeating to his mother and to anyone else who will listen, that he does not want to spend as much time with his father and is resentful that he does not have enough weekend time with his mother. This was not reflected in the way he behaved in the session with his father but was said repeatedly when his father was not there.
[L], on the other hand, expressed more lukewarm desire to spend more time with his mother but was not particularly focussed on this. He was able to respond to his father’s interest in his play at whatever level. There was a marked difference between the children’s primary attachment figure, for [A] his mother and for [L] his father. This is not the pattern one would expect if this were a matter of developmental expectation only. Again I feel it was clear that both children wish to see both parents.”
Dr M made the same observation in relation to A in her oral evidence. She said:
“[A] has said to anyone who will listen that he does not want a change to week-about.”
I am satisfied that A’s stated opposition to a week-about arrangement reflects a genuine wish to avoid lengthy separations from his mother. I consider that his views reflect the nature of his relationship with his mother.
section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
I have referred already to the expert evidence relevant to this consideration.
section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
In an Outline of Case document submitted on behalf of the husband it was conceded that “both parents are willing to facilitate a continuing relationship between the children and the other parent. The parties differ as to the nature and extent of the perceived benefits of a stronger relationship with the father and this exacerbates or causes additional focus on issues”.
In his primary affidavit the husband seemed to suggest that the wife deliberately undermined overnight time when he entered into a new relationship. She maintained that the children were unsettled by overnight time and that she was concerned about their emotional reaction. This explanation sits comfortably with Dr M’s evidence as to A’s insecure attachment to his mother. I am not satisfied that the wife ever was motivated to limit the children’s time or relationship with their father.
No complaint was raised on behalf of the wife as to the husband’s willingness or ability to encourage a close and continuing relationship between her and the children. I am persuaded that each of the parties is willing and able to facilitate a close and continuing relationship with the children’s other parent.
section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In her second report Dr M described in graphic terms the likely impact on A of a change to a week-about arrangement. She said:
“The relationship between [A] and his mother is such that if he were to be moved from the mother’s home, except in a crisis situation, such as her extreme physical ill-health, I think [A] is likely to decompensate, regress in his behaviour and become oppositional and aggressive. This should be avoided at all costs.
[L] on the other hand would be better able to take this in his stride and he continues to be the child who is likely to do better in 50:50 care with his parents while [A] would be likely to do much worse.”
Dr M reinforced these opinions in her oral evidence. I have referred already to her prediction of emotional damage to A as a result of a change to a week-about arrangement. Dr M did not support the introduction of a week-about regime only for L. She said:
“I have reservations about whether [L] could handle week-about without [A]”.
On behalf of the husband, it was submitted that there should be a week-about arrangement to guard against the risk of depression in the children and “betrayal if [A] forms a view that his mother has impeded his relationship with his father”. There was no expert evidence of any such risks to either A or L. Dr M merely acceded to some general propositions put to her by counsel for the husband. She said:
“Historically the importance of attachment to fathers has been understated. With adolescent males, attachment to fathers is a better predictor. They stay attached to mum but want dad to respect them and see them as manly. There is a strong link between depression and father attachment, more so for girls.”
She did not link these general considerations to either A or L.
Dr M also referred briefly to current academic literature on the impact of children of equal time arrangements. She said:
“The latest research shows that once kids get to 12 or 13, they want a secure base, one base.”
It is thus my view that nothing in the evidence of Dr M supported the introduction of a week-about arrangement. On the contrary, she expressed a strong opinion that A is likely to suffer psychological damage if such a regime is imposed upon him. As noted, Dr M doubted that L could cope alone with this outcome. I have indicated already that I am satisfied that there was no successful challenge to any of Dr M’s evidence.
section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
No difficulties have so far arisen with the practicalities and expense of the children spending time and communicating with each of their parents. I was left, however, with a very clear impression that there is a real difficulty in terms of the extent to which the husband requires the wife to provide minute details on most, if not all, aspects of the children’s lives and involve him in day-to-day decision making.
As noted, I was unimpressed with the sheer size of the wife’s affidavit sworn on 29 May 2009. On the other hand, the annexed email correspondence demonstrates the level to which the husband has insisted that he must be involved in details of the children’s day to day lives. The wife told Dr M that she received 1,200 emails from the husband in the three years after the parties’ separation. It seems most unlikely to me that genuine issues relating to the children’s welfare would have necessitated this volume of correspondence.
My clear impression was that the husband has created issues and areas of conflict between the parties which need never have existed. It seems that he is motivated to participate in, or even control, all aspects of the children’s lives. The sheer volume of correspondence makes it impracticable, if not impossible, to analyse and summarise every issue which the husband has raised since the separation. A few examples will suffice to illustrate the basis for my conclusion.
In March 2008 there was an email exchange about a dance at A’s school. (pages 282 to 286 of the annexures to the wife’s affidavit) In an email dated 19 March 2008 the wife simply asked the husband whether he proposed to attend the dance in April 2008, as she wanted A to know whether both of his parents would be there. Six emails followed, until the husband finally indicated that he would attend at about 12:00 noon on 5 April 2008. When asked about why this exchange had occurred, the husband said: “We had not agreed on how we would handle being there together”. I did not understand why such an agreement was necessary, some two years after the separation. The parties had come into contact with each other, in the presence of the children, on many occasions since March 2006. The husband also referred to an alleged “unilateral action” on the wife’s part in relation to the children’s participation in soccer.
The email exchange over soccer commenced on 20 March 2008 and continued until 30 September 2008 (pages 323 to 344 of the annexures to the wife’s affidavit). The husband raised numerous issues and required answers to several questions before he would consent to the children starting to play soccer. Among the issues which he raised, about this seemingly innocuous matter, were the following:
·What friends of the children were enrolled at the proposed soccer club? How did the children come to know these friends? He asked: “can I get access to those friends?”
·What “rules of behaviour” should be applied if both parties attended a match?
·What should be the impact of the cost of soccer on his child support obligations?
·What should happen in 2009 if the children wanted to pursue different sports?
·What should happen if A wanted his mother to attend a match and he (the husband) disagreed?
·Should each party be free to talk to other parents at matches and issue social invitations to them?
In cross-examination the husband said that he “believed these issues should be addressed” before the children could begin to play soccer. It seemed to me that the husband unnecessarily complicated the everyday issue of children’s participation in organised sport. I could detect no justification for this detailed level of enquiry of the wife. This exchange suggested to me a wish or need for control in the husband.
The issues of kindergarten and infants school generated a very large volume of email correspondence. The wife summarised the issues raised in an email dated 17 April 2007, which I will set out in full:
“Hi [Mr Reith]
As we spoke for one hour on this issue on Friday night and have had at least 5 conversations about this topic in the last few months plus email correspondence, I wish to note these down for our mutual reference.
You asked me many specific questions about the topics listed as follows:
My time with our boys
- the structure of our boys days when with me
- the activities they are involved in when with me
- who they socialise with when they are with me
- exactly what they do
- when they go to church and is it on Sundays, and is it Sunday school
- how often they go to church
I answered these even though I have already explained in detail on several occasions.
My intentions re preschool
I clarified that I had only put [A] and [L] in for a 2 hour session last week only and that there was no permanent booking in place at [T Preschool]. And that I wanted to see how both [A] and [L] went at this centre before we went further. As noted previously, I had said to you I wanted to put [A’s] name on the wait list of some preschools, with a view to him attending later this year.
What centres I have contacted
- you asked me how many centres I had contacted
- you asked me to name the centres I had contacted
- the style of these centres
- you wanted to know which centres I had even considered contacting
- you asked me which centres I would consider now
[T Preschool]
I explained again about the style of care here.
You asked me detailed questions about this centre, including how many children were in the story circle participating in the bean bag game, how many children were outside versus inside etc. I answered these to the best of my knowledge, given that I had only been there a few minutes at drop off and collect.
You confirmed you had already called up to verify the information I had given you prior to their first attendance and after asking me further detailed questions about this centre, were not satisfied. I suggested you visit the centre yourself to see. You said you would again call the Director and quiz her on her preschool program.
I said I’d like them to go again for a morning next week. You didn’t object.
General child care information
You confirmed you had no local knowledge in your area and were not aware of the differences in style of centres (and could not name the types available). I then explained these to you and why I had a preference for preschools over long day care, that I have local knowledge of various centres – which have good reputations and which have bad reputations (eg centres where parents have witnessed bullying), from my friends.
Family Day Care
I explained that I still had our boys listed on the family day care system but had requested a placement with children of 4 years and over.
However, since we now have the [T Preschool] option, I think we can take them off the Family Day Care books. Do you agree? If so, please advise and I will contact them.
[I Preschool]
I explained this would be my preference for [A] when we felt he was ready for preschool but that I wanted to see how he goes at [T Preschool] first. To make a better judgement on [I Preschool]. You indicated that you thought putting [A] in [I Preschool] or any other preschool program in the immediate future would be “putting him in at the deep end”. You expressed reservation about how he would cope, with or without [L]. I had a similar feeling about this and was keen on the flexibility offered by [T Preschool] (we could put [A] in for a longer day or an extra morning/day, with or without [L]).
However, as I noted it would be good to book in now to keep our options on [I Preschool] open. You said you were happy for me to do that.
Childcare cost
I asked if you would pay half the childcare costs and you replied that you would not. In particular you said that you remembered [I Preschool] being expensive and you would expect me to pay the full costs.
If you have anything further to add, please indicate by email.
Regards, [the wife]”
An email dated 27 April 2007 from the husband to the wife sheds further light on his approach to the making of decisions in relation to the children. He wrote:
“[Ms Saldowne]
You say that you have answered my questions even though you had already explained in detail on several occasions. Particularly, I’d not known before how often they attended church, whether or not it was Sunday School, and whether their attendance at the library activities was regular. You hadn’t explained on several occasions as you state.
As you point out I asked you a stack of questions about what centres you had contacted. Had we been openly discussing this I would’ve expected these questions to be answered as part of each of us bringing forward what we know. I found that I had to “push” to get you to reveal information that might help us in our research, and that I was frequently given a response like “why do you need to know that?” Clearly this isn’t going to make it easy for us to equitably share decision making.
You say “you said you would again call the director”. I’ve not yet contacted the director (did you think I had already contacted her, and so were intending contacting her again?)
I’m still uncertain about your intentions. You mention putting [A] onto lists for preschools, but I don’t know which areas you’re considering. You say “later in the year” but then discuss the possibility of his place at [I Preschool], which would be available immediately.
Now that my exams are finished I’ll do some research in this area and also contact [T Preschool].
As you note, we’ve had a series of conversations and emails about this. It seems that we’re still trying to establish where we start: I’m still asking you many questions about what the situation is currently and trying to clarify what each of us intends. Clearly if we are going to negotiate this equitably there will be lots more conversations and emails.
Unless there is a cost associated with family day care I see no reason to take the boys off the list. If we place [A] in pre-school it may be an option for [L] that we should consider. Have they made any offers of places this year?
Cheers
[The husband]”
I was left with real concerns about the husband’s ability to address realistically the practicalities of the children moving between their parents. It could well be that his priority is his own status as a parent, at the expense of a child-focussed approach to both significant and day-today issues.
section 60CC(3)(f): the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I am satisfied that each parent has the capacity to provide for the children’s physical and intellectual needs. I was left with real reservations, however, as to the extent which the husband has insight into their emotional needs. This concern arises largely from his insistence on equal time, despite the very concerning evidence of Dr M as to the likely effect on A. As noted, I also have concerns in this regard because of his insistence on detailed information and discussion about most, if not all, issues and decisions relating to the children.
The husband said that he does not expect “anything beyond teething difficulties” for A if a week-about arrangement is introduced. His view was that A will “soon get over missing his mother”. In my assessment, the husband seriously underestimated the consequences for A of this proposed change.
My impression was that the husband was focussed on his status as a father and his sustained quest for “equitable parenting”. He used this term in an email dated 6 May 2007, when he wrote:
“You have typically responded to that with a statement ‘you are fixed on 50:50 and should be flexible’. To this I responded that I am not fixed on it and would be happy to consider alternatives, as long as those alternatives could show that inequitable time did not equate to inequitable parenting.
On Thursday I refused to say what other things I would consider would balance an inequitable time arrangement, although I did say that I had tried to describe these things in the past. I am not offering 50:50 or 60:40 plus a, b & c, I am offering 50:50. I am not fixed on 50:50, as long as you can show me that the alternative you suggest would not lead to inequitable parenting.”
In cross-examination the husband made a number of revealing statements as to his attitude and priorities. He said:
“I embarked on a course to obtain shared care.
I unilaterally retained the children overnight twice. They were not at all distressed in my care. Yes, this was a tussle over control of the children’s lives, I was determined to achieve shared control.
Yes I have continued to push for more time and control by legitimate methods.
Yes one element of the dispute has been a battle for control, of me feeling excluded from their lives.”
In my view these statements are very telling, in terms of the husband’s priorities as between his interests and those of the children.
I was concerned that the husband seemed seriously to underestimate the importance of constructive communication and cooperation between parents for a successful week-about arrangement. In her second report Dr M said:
“There is extensive affidavit material produced by the mother mostly of email communication between the parties, indicating at least as many cases of poor or misunderstood communication as there are of adequate communication. As stated in my previous report, if the 50:50 arrangement were to proceed there would need to be a willingness and honesty in communication between the parents or the parents may subconsciously subvert their plans.”
The husband took issue with these opinions of Dr M. He said:
“I disagree that present communication is such that week-about could not work.
Communication is strained.
I don’t see that a dramatic or significant improvement in communication is necessary for equal time to work.
We would need to communicate effectively for week-about to work. We do it at present.
I see no difficulties with communication other than normal parenting difficulties.”
The volume and contents of the emails left me with quite the opposite impression. It is obvious that Dr M reached a similar conclusion on the basis of this material. If parental communication was in fact “effective” or involved “no difficulties…..other than normal parenting difficulties”, this enormous volume of email communication would not have taken place.
My impression was that the husband lacks the capacity to be flexible with arrangements for the children. One striking example was that he insisted on one extra hour with the children because they had attended a medical appointment. I was at a loss to understand how this adjustment could be required in the interests of the children. It seemed obvious to me that the husband demanded this additional hour because he felt that he had an inalienable right to the precise amount of time stipulated in the interim orders. It might reasonably be expected that a truly child-focussed parent would wish to accommodate medical appointments. This approach on the husband’s part does not auger at all well for a week-about arrangement.
section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
There was no suggestion of any family violence.
section 60CC(3)(l): 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;
No relevant matters arise pursuant to this consideration.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
There was no submission on behalf of either party that these considerations should play a role in the determination of the competing applications for parenting orders.
The Presumption of Equal Shared Parental Responsibility
Neither party contended that this presumption had been rebutted or should not apply, in the interests of the children. Independently of this mutual concession, I am comfortably satisfied that the husband and the wife should have equal shared parental responsibility for their children. The distribution of the children’s time between their parents is, of course, another question entirely.
As the husband and the wife will have equal shared parental responsibility, I am first required to consider whether orders for the children to spend equivalent time with each parent would be in their best interests and reasonably practicable. The husband’s proposal was for a week-about arrangement but I will also consider other configurations of equal time.
Equal Time
In my view there are two weighty contra-indications to an equal time regime, whether in a week-about arrangement or in any other configuration. The first consideration is the compelling evidence of Dr M as to a significant risk to A’s psychological well-being in an equal time arrangement. As noted, I found the evidence of Dr M to be unshaken. It seems to me that I must therefore give substantial weight to her expert opinion.
The second consideration is the problematic communication and lack of cooperation between the husband and the wife. I have made extensive reference to the voluminous email correspondence and the husband’s propensity to create issues which need never have arisen. It seems to me to be likely that even more issues would be provoked in an equal time arrangement, given the lack of cooperation and flexibility between the parents.
As an adjunct to this second contra-indication to an equal time arrangement, I have real concerns about the husband’s seeming unwillingness or inability to compromise in appropriate circumstances. As noted, I find his insistence on extra time because the children attended a medical appointment to be a telling indication of his priorities. An equal time regime would require flexibility and compromise, which the husband has yet to demonstrate.
All of the evidence strongly suggests that an equal time arrangement would be contrary to the children’s best interests. It concerns me that the husband persisted with this application, despite compelling evidence from Dr M as to the psychological risk to A and the necessity for constructive, cooperative parental communication. I simply cannot ignore these weighty considerations and order an equal time arrangement.
Substantial and Significant Time
Having declined to make orders for equal time I am then required to consider whether it is in the children’s best interests, and reasonably practicable, for them to spend “substantial and significant time” with each parent. As noted, the Act contains no temporal definition of this term.
Essentially, the same contra-indications weigh against orders for substantial and significant time as militate against orders for equal time. Dr M’s ultimate recommendation was that the children spent “the majority” of their time with their mother and weekend and school holiday periods with their father. She suggested that they spend long weekends with their father, to facilitate visits to his extended family. She was in favour of changeovers at the children’s school. Further, she recommended that A undertake therapy with a practitioner who is independent of both parents and who is a person other than Ms C. I will make orders in accordance with these recommendations.
Settlement of Property
Approach to Settlement of Property
According to guidelines established through a series of leading decisions, the Court is required to determine the following matters on the evidence:
·firstly, the assets, liabilities and financial resources of the parties to the marriage are to be determined
·secondly, all relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other
·thirdly, the matters in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2) must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution
·finally, an order under section 79 must not be made unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order.
The Assets
The parties agreed that they have non-superannuation assets with the following values:
1.
W property
$635,000
2.
Husband’s interest in R Pty Limited
$0
3.
Husband’s interest in Systems Pty Limited
$15,500
4.
Husband’s loan account with Systems Pty Limited
$36,178
5.
Husband’s savings
$7,715
6.
Husband’s motor cycle
$3,000
7.
Husband’s shares in Y Group
$1,198
8.
Wife’s shares
$25,157
9.
Husband’s household contents
$6,000
10.
Wife’s household contents
$3,000
11.
Wife’s jewellery
$1,500
Entries in the “red book” were tendered by consent (exhibit 4) as evidence of the value of the husband’s 1997 Mazda and the wife’s 1994 Toyota motor vehicles. On this basis I find that the wife’s Toyota and the husbands’ Mazda motor vehicles are valued at $3,630 and $5,280 respectively.
The parties disagreed as to the total of the wife’s bank savings. Exhibit 3 showed that she has $2,761 in three St George Bank accounts. She also has a Macquarie Bank account entitled “[Ms Saldowne] Trading as […]”. This account had a balance of $2,322 as at 23 October 2009, according to her Financial Statement verified on 30 October 2009. This admission against interest was the best evidence of the balance of the wife’s Macquarie Bank account. I thus find that the wife has bank savings totalling $5,083.
It seemed to be common ground that each parties’ paid legal costs should be omitted from the list of assets. The husband’s Costs Notice indicated that his paid costs came from “wages”, which I take to mean income earned since the separation. Costs paid from this source should not be included in the list of assets.
The wife’s Costs Notice indicated that her paid costs came from savings and a bank loan. There was no breakdown of these two components and no evidence as to when or from what source she accrued these savings. I was taken to no evidence that the wife paid any of her legal costs from savings which she held as at the date of separation. For these reasons I will omit the paid legal costs of each party from the list of assets. I will also exclude the wife’s liability of $21,000, incurred for the purpose of payment of legal costs.
The parties agreed as to the identity and value of their superannuation funds as follows:
1.
Husband’s BT Lifetime Personal super
$63,076
2.
Husband’s AMP Custom super
$34,737
3.
Husband’s First State super
$26,240
4.
Husband’s Public Sector super
$9,200
5.
Wife’s BT Lifetime Personal super
$29,865
The Liabilities
The only asserted liability was a joint debt to the husband’s mother. There was no evidence to support the allegation in the Outline of Case document filed on behalf of the husband that his mother holds a “mortgage” over the W property. The basis of this contention was never explained to me.
Ultimately, it was conceded on behalf of the wife that “documents support the provision of funds and payments back to [the husband’s mother]”. The dispute was as to the quantum of this liability.
The husband alleged that the parties owe his mother $138,385. I was never informed of the calculations on which this figure was based.
The husband maintained that his mother sold the E property to him for $230,000, of which he paid $90,000 on settlement of the purchase. He said that their agreement was that the balance of $140,000 would be repayable over ten years at 4% interest. He said that they agreed to reduce the interest rate to 3% around November 2002. I accept this evidence.
According to the husband, his mother then paid the deposit of $63,000 and expenses totalling $36,128 when the parties purchased the W property. Using the figures set out in his affidavit, the total amount which has been repaid to the husband’s mother is $245,777. Without any allowance for interest, therefore, the current balance of this debt would be $83,351.
According to the husband’s mother’s affidavit, she advanced to the parties a total of $329,128. She said that she has been repaid a total of $237,708, leaving a current balance of $91,420 without any allowance for interest.
As noted, I was never provided with an explanation as to how the husband’s figure of $138,385 was calculated. I assume that the difference in the raw figures which I have extracted from his affidavit and that of his mother is attributable to an interest component. It was always open to the husband to provide a breakdown of his figure and supporting calculations.
With the evidence in this uncertain and unclear state, I can safely find only that the parties have a joint capital debt to the husband’s mother of the order of $83,000 to $91,000. I am satisfied that this debt carried an interest component, which the evidence does not enable me to quantify. For the purposes of calculation of the net pool of property I will adopt the higher figure of $91,000, in recognition of the interest component. I will bear in mind the uncertain quantum of this liability when I come to consider a just and equitable outcome to these proceedings.
Financial Resources
It was suggested on behalf of the wife that the husband has a financial resource of $458,344, being his interest in R Pty Limited as a potentially successful claimant in a minority oppression action. This figure was calculated by Mr G on the basis of the following assumptions:
“a) That [the husband’s mother] retains the 46 management shares and control of the company until her death and she will not transfer the management shares on her death – the effect being that the husband and his brothers will each have one third of the voting rights on the death of [the husband’s mother].
b) That there will be no dividends paid to any shareholder until the death of [the husband’s mother].
c) That [the husband’s mother] will live for a further 12 years (which is the life expectancy of a female aged 77 per the 2005-2007 Australian Bureau of Statistics Life Table.
d) That on the death of [the husband’s mother], the husband and his brothers will agree on the method by which they will access the assets held in the company, that they each agree that their entitlements are one third of the assets and that the husband will be free to access his proportion of the assets in the manner which he chooses to do so.”
It may well be that some or all of these assumptions never come to pass, which would mean that the husband has no financial resource to the value of $458,344. It thus seems to me that it would be more appropriate to take into account, pursuant to section 75(2)(o), the fact that the husband has an interest in R Pty Limited which may bestow relatively substantial benefits on him at some time in the future.
It was conceded on behalf of the wife that she holds financial resources totalling $520, being money in four bank accounts which she operates as trustee for the children. There was no evidence as to the circumstances in which she opened these accounts or her purpose in doing so. I will not include these savings as a financial resource of the wife.
I thus find the assets, liabilities and financial resources of the parties to be as follows:
Non Superannuation Assets
1.
W property
$635,000
2.
Husband’s interest in Systems Pty Limited
$15,500
3.
Husband’s loan account with Systems Pty Limited
$36,178
4.
Husband’s savings
$7,715
5.
Wife’s savings
$5,083
6.
Husband’s motor cycle
$3,000
7.
Husband’s Mazda motor vehicle
$5,280
8.
Wife’s Toyota motor vehicle
$3,630
9.
Husband’s shares in Y Group
$1,198
10.
Wife’s shares
$25,157
11.
Wife’s jewellery
$1,500
12.
Husband’s household contents
$6,000
13.
Wife’s household contents
$3,000
$748,241
Liabilities
| 105. | Joint debt to husband’s mother | $91,000 |
Financial Resources
Neither party holds a financial resource.
Contributions
Each of the parties brought a relatively substantial asset into the relationship. Mr B valued the husband’s property at E, at $360,000 as at 1 July 2000. The husband purchased this property from his mother for $320,000 in March 1999 and he owed her approximately $230,000 when the parties commenced cohabitation. He thus had an equity in this property of around $130,000 in July 2000.
The wife held an interest in a property at O when the parties began to live together. She received approximately $151,000 when this property was sold in May 2001.
Each of the parties owned shares at the commencement of cohabitation. The husband held a parcel of shares in public companies valued at $26,627, together with his interest in R Pty Limited.
The wife owned shares which she said were worth $3,000 but which the husband maintained had a total value of $9,310. It seems to me that he is more likely to be correct, as he sourced the price of all shares held by the parties from the ASX.
The husband also held the assets of the company Systems Pty Limited, which were valued at $4,880. The wife alleged she had savings of approximately $10,000 but the husband maintained that her bank balance was $2,176. There was no documentary evidence to corroborate either party’s contention.
Each of the parties had superannuation benefits at the commencement of cohabitation. No documentary evidence was tendered to establish the value of these funds in July 2000. The wife claimed that her superannuation was worth $10,000 and the husband maintained that his three benefits had a total value of $57,600.
At the commencement of cohabitation each of the parties had a car and household contents. There was no evidence as to the value of these chattels.
The husband was in the paid workforce throughout the parties’ cohabitation. It was conceded on behalf of the wife that he “made the primary financial contribution”. At the same time, it is clear that the wife was primarily responsible for the care of the children and the household tasks. She was in the home while the husband was at his workplace, so she was obviously in a position to carry out the role of primary child carer and homemaker. I have no doubt that the husband participated in the care of the children and the running of the household to the fullest possible extent, when he was available to do so.
The husband received no dividends from R Pty Limited during the parties’ cohabitation. He last received a dividend payment in June 2000.
The husband’s mother provided funds to the parties in a manner which must have been of considerable financial assistance to them. On the other hand, the wife repaid to the husband’s mother approximately $120,000 from the proceeds of sale of her property at O. The parties made periodic repayments to the husband’s mother between January 2002 and their separation in January 2005. I treat the balance now owing to the husband’s mother as a joint debt of the parties. For these reasons, I do not attach significant weight to these advances as a contribution on behalf of the husband.
The wife’s brother-in-law, Mr S, made a direct non-financial contribution on her behalf. His unchallenged evidence was that he provided about 64 to 80 hours of unpaid labour in the course of the renovations to the E property.
On behalf of the wife it was ultimately submitted that contribution should be found to be equal, unless I am satisfied that the parties have a debt to the husband’s mother. In that event it was submitted that a contribution finding in her favour is warranted. The final submission on behalf of the husband was that “contribution favours the husband a little”.
One difficulty in assessing the parties’ respective contributions is the lack of corroborative evidence as to the value of their superannuation funds at the commencement of cohabitation. The husband said that he had superannuation with a total value of $57,600 and the wife maintained that she had a fund worth $20,000. I can only accept that their respective estimates are accurate.
The husband now has superannuation with a total value of $133,253 and the wife $29,865. There have thus been substantial contributions to the husband’s funds during cohabitation. Accepting his figure of $57,600 at the commencement of the relationship, it follows that he has increased the value of his superannuation by about $65,800. The evidence does not enable me to quantify the increase between the date of separation and the trial.
The value of the wife’s fund increased by only about $9,865 during the relationship. Again, I cannot tell what proportion of that increase has accrued since the parties’ separation.
It seems to me that the parties’ contribution should be found to be equal as at the date of trial. During their cohabitation they adopted complementary and mutually supportive roles of principal income earner and primary homemaker and parent. The husband introduced more valuable assets and superannuation when the parties began to live together but the wife’s brother-in-law made a contribution on her behalf to the renovations of the E property. It seems to me that there was no particular contribution by or on behalf of either party which was unmatched by any contribution of the other party. I thus find that the parties made equal contributions to the net pool of property and superannuation.
Section 75(2) Factors
I have considered all factors set out in section 75(2) but will refer only to those considerations which seem relevant to these proceedings.
section 75(2)(a): the age and state of health of each of the parties;
The husband is 45 and the wife 42 years old. There was no suggestion that either party suffers from any ill health.
section 75(2)(b): the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The husband has qualifications in systems technology and earned a gross salary of $111,613 in the 2009 tax year. His net income from employment for that period was approximately $79,300. He has consistently earned a reasonable level of income.
The wife holds a degree of Bachelor of Business and is a qualified health worker. She is self-employed, with a gross income of approximately $500 per week. She pays income tax of $50 per week and her net income from all sources, including child support, amounts to approximately $1,000 per week.
section 75(2)(c): whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The parenting orders that I will make will see the children spending substantially more time in the care of their mother than is the case with their father.
section 75(2)(f): subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
The husband holds substantially greater superannuation benefits than does the wife. He sought a splitting order, which would allocate $37,000 from his BT Lifetime Personal Super Fund to the wife. She sought no splitting order.
I will not make a splitting order as sought by the husband. It seems to me that the wife requires liquid funds immediately, to accommodate herself and the children. Any benefit which she receives from a splitting order would not be available to her for many years. The husband will be in a much more advantageous position, in terms of money available to him on retirement.
section 75(2)(na): any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
The husband pays child support of $285 per week. There may be some variation to that figure as a result of the parenting orders which I will make. He has been entirely reliable with payments and I have no doubt that he will continue to honour his obligations in this timely manner.
section 75(2)(o): any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
As noted, I take into account the fact that the husband has a beneficial interest in the company R Pty Limited. For reasons already indicated, I do not regard this interest as a financial resource in his hands. He has received no dividends since 2000 but he may do so in the future. At some stage he will probably receive a share in the assets of the company as well.
It was properly conceded on behalf of the husband that the section 75(2) factors favour the wife. The disparity in incomes, superannuation and responsibility for the care of the children clearly indicate the appropriateness of this concession. There is also the fact of the husband’s interest in R Pty Limited, although that is of less significance because of the contingencies identified by Mr G. I find that there should be an adjustment of 12.5% of the net non-superannuation assets in favour of the wife, on account of section 75(2) factors.
Result
The result is that I find that the net pool of non-superannuation assets should be divided in the ratio of 62.5% to the wife and 37.5% to the husband. I will make no order in relation to the parties’ superannuation funds, which will not be available to them in the ordinary course for many years.
The net pool of non-superannuation assets is valued at $657,241, of which 62.5% and 37.5% equal $410,776 and $246,465 respectively. The wife holds the following assets:
1.
Savings
$5,083
2.
Toyota motor vehicle
$3,630
3.
Shares
$25,157
4.
Jewellery
$1,500
5.
Household contents
$3,000
$38,370
and thus requires an additional $372,406 to bring up her 62.5% entitlement.
The husband holds the following assets:
1.
Interest in Systems Pty Limited
$15,500
2.
Loan account with Systems Pty Limited
$36,178
3.
Savings
$7,715
4.
Motorcycle
$3,000
5.
Mazda motor vehicle
$5,280
6.
Shares in Y Group
$1,198
7.
Household contents
$6,000
$74,871
and thus requires an addition $171,594 to bring up his 37.5% entitlement. The amounts of $372,406 and $171,594 are equal to the net equity in the W property, which is $544,000.
The husband sought an opportunity to retain the W property, upon payment of an appropriate sum to the wife. She agreed to this form of order. Upon the basis of the above calculations, the husband must pay to the wife a sum of $372,406 and provide to her an indemnity against all liability for the debt due to his mother. I will round off this figure to $372,400.
It seems to me that this outcome is just and equitable in all of the circumstances. The husband wishes to retain the W property and has an income which should enable him to service a mortgage of the required quantum. He and his mother both gave evidence to the effect that they will make their own arrangements in relation to payment of debt. On the other hand, the wife will have access to relatively substantial liquid funds, which she requires to accommodate herself and the children.
I certify that the preceding one hundred and thirty seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson
Associate:
Date: 26 February 2010
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