SAYER & ASPLEY
[2016] FCCA 66
•28 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAYER & ASPLEY | [2016] FCCA 66 |
| Catchwords: FAMILY LAW – Property – credibility of the parties’ evidence - dishonesty on the part of both parties in relation to financial matters – Court’s inability to determine parties’ property interests in (country omitted) or values of those interests – exclude any property in (country omitted) when determining asset pool – contributions. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC,61DA, 65DAA, 65DAC, 65DAC,75, 79, 90MZD |
| AIF v AMS (1999) 199 CLR 160 Bevan & Bevan (2013) FLC 93-545 Bigelow & Reuter [2006] FamCA 1455 KB and TC (2005) FLC 93-224 Champness & Hanson (2009) FLC 93-407 Clauson& Clauson (1995) FLC 92-595 C & C (2005) FLC 93-220 Ferraro & Ferraro (1993) FLC 92-335 Hickey & Hickey (2003) FLC 93-143 Jones v Dunkel (1959) 101 CLR 298 Lee Steere & Lee Steere (1985) FLC 91-626 Mallet v Mallet (1984) FLC 91-507 MRR v GR (2010) FLC 93-424 Mulvaney & Lane (2009) FLC 93-404 R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257 Rolfe and Rolfe (1979) FLC 90-62 Runcorne & Raine [2008] FamCA 837 Russell v Russell (1999) FLC 92-877 Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70 U v U [2002] HCA 36; (2002) 211 CLR 238 Wainder & Wainder (2011) FLC 93-473 |
| Applicant: | MR SAYER |
| Respondent: | MS ASPLEY |
| File Number: | MLC 10689 of 2012 |
| Judgment of: | Judge Roberts |
| Hearing date: | 1 & 2 June 2015 |
| Date of Last Submission: | 2 June 2015 |
| Delivered at: | Launceston |
| Delivered on: | 28 January 2016 |
REPRESENTATION
| The Applicant appeared unrepresented |
| Counsel for the Respondent: | Mr A Scriva |
| Solicitors for the Respondent: | Daniel Lawyers & Associates |
ORDERS
Parenting Orders
That MR SAYER (“the husband”) and MS ASPLEY (“the wife”) have equal shared parental responsibility for the children W born (omitted) 2000, X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2011.
That the child W is to live with each of her parents as may be negotiated between W and her parents from time to time.
That the children X, Y and Z are to live with the wife.
That until such time as the husband obtains suitable independent accommodation the children X, Y and Z are to spend time with the husband at such times as may be agreed between the husband and the wife, but failing such agreement as follows:
(a)each alternate weekend during school terms from after school on Friday until the start of school on the following Monday; and
(b)for four weeks during the children’s school holidays to coincide with the husband arranged leave from his employment.
That when the husband obtains suitable independent accommodation the time provided for in Order 4(a) hereof is to be extended from after school on Thursday until the start of school on the following Tuesday in each alternate week.
Property Orders
That within 12 months of the date of these Orders the wife must obtain a discharge of the husband’s liability under the mortgage (“the mortgage”) currently secured over the title to the property situated at and known as Property W in Victoria (“the property”).
That contemporaneously with the wife’s compliance with Order No. 6 hereof, the husband must transfer to the wife all his right title and interest in the property.
That pending compliance with Orders Nos 6 and 7 hereof:
(a)the wife is permitted to occupy the property to the exclusion of the husband;
(b)the husband is restrained by injunction from using his equity in the property as security for any further borrowings whatsoever
(c)the husband is restrained by injunction from increasing the parties’ liability under the mortgage; and
(d)the wife must pay the regular repayments of principal and interest under the terms of the mortgage.
That in the event that the wife does not obtain a discharge of the husband’s liability under the mortgage pursuant to Order No 6 hereof within the specified time period, the husband and the wife must then do all things necessary to place the property on the market for sale on such terms as may be agreed between the husband and the wife, but failing agreement on such terms and method of sale as may be determined by the President of the Real Estate Institute of Victoria or his nominee.
That the real estate agent for the sale shall be as nominated by the wife and the wife shall appoint solicitors or conveyancers of her choice to conduct the conveyancing in respect of the said sale.
That upon settlement of the sale of the property, the proceeds of sale shall be applied as follows:
(a)Firstly, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage registered against the title to the property;
(c)Thirdly, to discharge any rates and water charges owing in relation to the property; and
(d)Finally, the balance to be paid to the wife.
That the husband be solely responsible for the payment of, and indemnify the wife from payment of the following:
(a)the personal credit union loan referred to in paragraph 20 of his affidavit filed 12 May 2015 as having a balance in the sum of $7,001; and
(b)all credit card liabilities referred to in that paragraph of his affidavit.
That other than as is specifically provided for in these Orders the husband and the wife are each solely entitled to the exclusion of the other to all other property and chattels in the possession of each of the parties as at the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Sayer & Aspley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10689 of 2012
| MR SAYER |
Applicant
And
| MS ASPLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the Applicant is MR SAYER (“the husband”) and the Respondent is MS ASPLEY (“the wife”).
The parties are aged 47 years and 39 years respectively.
They were married in 1996 and separated in June 2012. Their divorce became effective in November 2013.
They have a daughter, W aged 15, and three sons, X aged 12, Y aged 9, and Z aged 4 (“the children”), who have lived predominantly with the wife since the parties separated.
The parties are seeking both parenting and property orders.
General comment about the proceedings
These proceedings were commenced in late 2012. The documentation is voluminous and the file is made up of five parts. Some of the documents are unnecessarily voluminous. For example:
·the trial affidavit filed by the husband is only 23 pages in length, but it has 32 annexures, making the document 2.5 cm thick;[1] and
·an affidavit filed by the wife is only 21 pages in length, but it has no less than 34 annexures, thereby making the document approximately 4 cm thick.[2]
[1] Filed 12 May 2014
[2] Filed 25 February 2014
The husband is seeking “to recover such legal cost from the Wife as justified by the Honourable Court because of lack of co-operation and disclosure of the Wife’s financial records to the Husband as well as for submission of false document … as part of the Wife’s affidavit as all attributed significantly to increase the husband’s legal cost unnecessarily”.
Similarly, the wife is seeking “to recover legal costs from the Applicant husband incurred to her in this proceeding as a consequence of the Applicant husband’s false allegations, which caused for unnecessary lengthy proceedings”.
Each party clearly accuses the other of non-disclosure and giving false evidence and their allegations of dishonesty relate primarily to their property dispute. It is therefore necessary to make findings about the parties’ general credibility.
Many of the husband’s statements about his financial affairs lack credibility. For example, he claims that:
·In 2002 he purchased units in the (omitted) Unit Trust $25,000 (“the Unit Trust”).
·He sold those units in the Unit Trust for $50,000 in 2009 to a friend, Mr M, but no money actually changed hands because Mr M was to put that $50,000 by instalments into a (omitted) business in which Mr M, the husband’s brother and the husband were equal shareholders. (The husband also claims that the computer business failed and the husband accumulated losses of $130,432 over a period of only 3 financial years.)[3]
·The husband did not notify the Unit Trust trustee of the sale to Mr M until March 2012. His evidence was: “I notified to the trustee that, ‘Look, I already sold my shares. Please transfer. Make transfer all the – the account.’ That is in March 2012, well before my separation. But they didn’t actually update their records. They did it bit later on.”[4]
[3] See paragraph 35 of his trial affidavit
[4] See pages 59 and 60 of the transcript
Somewhat unusually the copies of documents produced by the husband in relation to the sale of his units in the Unit Trust (which purport to have been completed by the husband and Mr M on 12 July 2009 and 27 March 2011) appear to have the same typeface with the same witness using the same pen.[5] During the hearing I commented about that and said: “That just looks like those two documents are fiddled”.[6] I have not changed my view about that.
[5] See the second and third pages of Annexure 23 to his trial affidavit
[6] At page 63 of the Transcript
The first page of Annexure 23 to the husband’s trial affidavit purports to show that the husband and Mr S acquired “two units of $25,000 per unit” in the (omitted) Unit Trust on 1 March 2002 (Unit Certificate No. 11), whereas the last page of that annexure appears to show that Mr M was already the registered holder of 25,000 units in the Unit Trust as at 4 February 2002 (Certificate No. 13).
Mr M had earlier provided an affidavit, which in its entirety read as follows:
1. I have purchased one unit share-mentioned in Unit Certificate No. 11 (dated on 1 March 2002) of (omitted) UNIT TRUST ((omitted) PTY LTD) for $50,000 from MR SAYER in 2009. I paid $50,000 in various forms such as cash by instalments, purchasing stocks, furniture etc to the business (omitted).
2. I have finished paying the total amount of $50,000 in 2011.
3. Share transfer in my name has been finalised by (omitted) Unit Trust and I am the current share holder of the unit.
4. As required by (omitted) Pty Ltd, being a unit holder I have paid $1,400 to (omitted) Pty Ltd in 2013 to cover its the rates and land tax obligations.
Somewhat strangely, Mr M did not mention that he appeared to have acquired 25,000 units in the same Unit Trust in February 2002 as evidenced by Certificate No. 13. Further, Mr M was not made available for cross-examination, nor was any reasonable explanation was given for that.[7] Significantly, the husband had been given notice as early as March 2014 that if he wished to rely upon evidence by Mr M, he needed to be available for cross-examination.[8] I am therefore of the view that the principle in Jones v Dunkel allows me to draw an inference that Mr M’s evidence would not have helped the husband’s case.[9]
[7] See page 164 of the transcript
[8] See Annexure 32 to the husband’s trial affidavit
[9] See Jones v Dunkel (1959) 101 CLR 298
The purported independent witness to the signing by the husband and Mr M of the two documents on 12 July 2009 and 27 March 2011 was Mr A. However, Mr A did not provide an affidavit, nor was he made available for cross-examination.
The fifth page of Annexure 23 to the husband’s affidavit is a document purportedly signed by the husband on 20 March 2012. It states that:
Mr Sayer … is transferring the ownership to Mr M … without any exchange of money. From now on, Mr M will be accountable for any capital gains tax for the unit.
In my view, if it is significant that the document refers to the transfer in the present tense and not in the past tense. Similarly, it refers only to a future liability for capital gains tax and not to any liability that may have been incurred after July 2009. Although the husband said “That is in March 2012, well before my separation”,[10] it was perfectly clear from the evidence that the parties were having significant difficulties in their marital relationship in early 2012.[11] Consequently, I can only conclude that if that document was created in 2012, it was an attempt to remove the husband’s interest in the Unit Trust from any asset pool for division between the parties.
[10] See the last line of page 59 of the transcript
[11] For example, see Annexure 7 to the husband’s trial affidavit
I also conclude that the husband deliberately omitted to mention his interest in his late mother’s estate in the affidavit material that he filed in these proceedings. It was only after some persistent questioning by the wife’s counsel, and some additional questioning by me, that the husband somewhat reluctantly agreed that he had failed to disclose his one quarter share in the estate of his late mother.[12] However, in the Financial Statement filed by him on 12 May 2015, he had typed in the word “NIL” next to Item 56 which specifically seeks details of any “Interest in any trust or deceased estate”. In response to a question by me about that, his answer was:
I was not aware of any, your Honour, because I thought this is prior to my – that was purchased my – my – by my father. But I was not aware of it, that like even overseas, and that – it hasn’t been transferred to me or something like that, that I should mention that.[13]
[12] Pages 111 and 112 of the transcript
[13] Page 111 of the transcript
The husband’s earlier evidence had been that his father had died in 2007 and his mother had died approximately six months before he filed his Financial Statement. In addition, he also conceded that he and his three brother are equal beneficiaries in the estate which includes:
·land in (country omitted) that had once been considered for an eight story building re-development;[14] and
·ownership of eight or nine shops.[15]
[14] Page 93 of the transcript
[15] Page 114 of the transcript
Annexures “A8” and “A26” to the wife’s affidavit appear to corroborate that a significant property development in (country omitted) had been envisaged.
The husband is intelligent and well educated. Indeed, he had earlier tried to impress the court about his intelligence and education in a different context, when he said:
I’m also a writer of university‑level book. You know, I’ve got (omitted) degree, (qualifications omitted), and I’m also an (occupation omitted). I’ve written a book – two books, anyway. It’s university‑level books.[16]
[16] Page 30 of the transcript
I therefore have little hesitation in concluding that the husband’s answers about why he failed to disclose his one-quarter interest in the deceased estate were deliberately untruthful.
The wife’s evidence about financial matters was confusing and also appeared to lack veracity. Up until the second day of the hearing she appeared to maintain a position that she did not have any interest in any property in (country omitted). For example, at paragraph 42 of her affidavit affirmed 20 February 2014, she said:
… I deny that I have any financial interest in a property as alleged in (country omitted) or that I am waiting for any financial settlement other than to secure my current residence for the children. The purchase in (country omitted) was part of an elaborate scheme by the husband to make it appear that I had used joint funds for my own purposes and I note in paragraph 68 of his affidavit he alleges that we agreed to make the purchase. He now appears to be alleging that I was somehow the instigator of the purchase in (country omitted). I have no reason to buy property in (country omitted) as I do not intend to return there to live. If I were to do so I would live with my family.[17]
[17] She confirmed that in her affidavit filed 18 May 2015
However, in paragraph 39 of that affidavit she had conceded that the husband had requested her to sign an application for a flat in (country omitted) to be put in her name, and that she had signed that application “as the nominated allottee of that land” and after an adjournment during her counsel’s cross-examination of the husband, her counsel stated that “[the] wife concedes that at the time that the marriage was towards the end that you did agree to buy an apartment for her …or at least to put it under her name”.[18]
[18] Page 150 of the transcript
When she was cross-examined by the husband, the wife clearly accepted that there had been an agreement for an apartment to be purchased in her name, and that she had transferred her interest to one of her parents in order that funds already paid by her parents should not be lost.[19] That is clearly inconsistent with what the wife said in paragraph 43 of her affidavit which appeared to suggest that her parents were not involved in any such purchase.
[19] At the foot of page 199 of the transcript
As a result of dishonesty on the part of both parties in relation to financial matters (particularly in relation to their dealings between Australia and (country omitted)), I am simply unable to determine what property interests either of them has in (country omitted), or determine the values of those interests.
At paragraph 24 of his trial affidavit, the husband said:
Recently the Wife has sourced a legal opinion by an Advocate Mr I in (country omitted) dated on 11th of July, 2014 where Mr I expressed his view that the current ownership of the apartment belongs to the Wife’s mother … First of all, it is merely an opinion without basing on any legal documents issued by the Vendor justifying the claim. I have become perplexed to see the anomalies in the opinion being two different addresses of the Advocate’s chamber mentioned in the opinion as on the top it says the chamber of the advocate is on 2nd floor and on the bottom it says on 3rd floor of the same address! I really seriously doubt even the authenticity of the document. Recently the Husband also sourced a legal opinion regarding the current ownership of the apartment … where the Advocate clearly mentioned that he believes the Wife is still the owner of the apartment in the context of judicial system in (country omitted) based on evidences.
Frankly, I cannot see any reason why I should accept the opinion of one (country omitted) Advocate over another, when neither provided evidence in a form that could be tested.
In the circumstances, I propose to exclude any property in (country omitted) when determining what property should be included in the asset pool for consideration in relation to the parties’ property dispute. However, I will consider the parties’ applications for parenting orders before doing that.
Parenting matters - the parties’ positions
In his Amended Application filed on 17 October 2014, the husband was essentially seeking parenting orders that would provide for:
·the parties to have equal shared parental responsibility for the children
·the children to live with each of the parents on a week and week about basis
·arrangements about special occasions; and
·arrangements concerning the children’s education.
However, at the start of the hearing the husband was essentially seeking parenting orders that provided for the children to live with him five nights per fortnight during school terms and for four weeks during school holidays. He also sought orders for special occasions and for W “to be able to elect to spend further time with the Husband or the Wife”.[20]
[20] See the husband’s Case Outline filed
The parenting orders as expressed in the wife’s Case Outline filed 29 May 2015 were not particularly helpful. They were:
1. That the said children live with the Respondent wife.
2. That the children spend such time with the Applicant husband as the Court deems to be in the children’s best interest.
However, the mother’s position at the conclusion of the hearing, as expressed by her counsel in his closing submissions, appeared to be that:
·the mother had no difficulty with the father’s proposal to spend time with the children for four weeks per year during school holidays, provided that he obtains suitable accommodation;
·the three boys spend each alternate weekend from Friday evening until Sunday evening with the father until he obtains that suitable accommodation, at which time longer periods could be negotiated; and
·the parties 15-year-old daughter should be able to determine how long she spends with each parent.
It would appear from the above that the parties agree that W should determine the time that she spends with each of her parents. Further, the parties appear to agree that the children should spend four weeks with their father during school holidays, although the wife is of the view that the father should have suitable independent accommodation. I will refer to that further below.
Parenting matters - relevant law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration,[21] and in determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section refers to “primary considerations” and “additional considerations”.
[21] Section 60CA
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[22]
[22] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[23]
[23] Subsection 60CC(3)
Each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.[24]
[24] See Mulvaney & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[25]
[25] Section 61DA
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[26]
[26] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[27]
[27] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[28] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[29] made it clear that if it is not open to a Court to find that it is reasonably practicable, within the meaning of s 65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a Court to consider making an order as described in s 65DAA(1)(c).[30]
[28] MRR v GR (2010) FLC 93-424
[29] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[30] Also see Wainder & Wainder (2011) FLC 93-473
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[31]
[31] See KB and TC (2005) FLC 93-224
Discussion
In deciding what parenting orders I should make, I will consider the relevant evidence in the light of the considerations under section 60CC of the Act.
Primary considerations
The benefit of having meaningful relationships with both parents
There is no evidence to that the children have anything other than meaningful relationships with both parents. Indeed, the author of the Family Report noted that from “observations conducted throughout the course of the day it was clear the children have close and loving relationships with both of their parents”.[32] Further, I am satisfied that, based upon their current proposals, the parties each want the children to continue having meaningful relationships with the other party.
[32] See paragraph 45 of the Family Report dated 16 September 2013
Protecting the children from harm from abuse neglect or family violence
Sub-section (2A) of section 60CC now requires that the court must give greater weight to the consideration set out in paragraph (2)(b) in applying the considerations set out in subsection (2).
It is clear that there some family violence took place in the presence of the children during the parties relationship. However, it is not clear who was the primary perpetrator of that family violence. At paragraph 14 of the Family Report, the Family Consultant said:
Mr Sayer denied that he has ever been violent to Ms Aspley but said that Ms Aspley had hit and scratched him on many occasions. It is his belief Ms Aspley is unable to manage her anger.
And at paragraph 21, the Family Consultant also said:
Ms Aspley said “He hit me” and “He threatened to kill me if I told anyone.” Ms Aspley said the children were not in the room but could hear repeated arguments and then Mr Sayer reportedly told the children “If you tell anyone I will go to jail.”
It is clear from the Family Report that family violence occurred in the presence of the children on occasions. For example, the Family Consultant reported:
[W] stated that contrary to seeing her father hit her mother she had witnessed her mother hit her father and that she had also been hit.
and
W and X both reported they had witnessed their mother throw plates and hit their father but they had not seen their father be physically violent to their mother. This is concerning and unable to be validated in these interviews or the subpoenaed material.[33]
[33] See paragraphs 27 and 41 of the Family Report.
Like the Family Consultant, I am also unable to determine with any certainty who was the primary perpetrator of the family violence. However, I conclude that it was essentially situational violence during the parties’ cohabitation which is unlikely to re-occur because they have now been separated for two and a half years.
Relevant additional considerations
The children’s expressed views
It is important to keep in mind that paragraph (a) of subsection 60CC(3) expressly included the words “and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views”.
Both parties clearly accept that W is an intelligent girl with mature views, and that her views should be respected. Certainly, W is to be congratulated for her academic achievements, and I am satisfied from both parties evidence that she will move between both households in a manner that will enable her to continue to do well academically. Currently, the husband is living in the home of his brother and his brother’s family, which is clearly comparatively cramped and not likely to be conducive to any serious studying on W’s part. However, like W’s parents, I am satisfied that she is intelligent and mature enough to decide for herself which household will from time to time provide best for her needs. In those circumstances, I agree with the parties that W’s views should be respected. Consequently, I will not make any orders in relation to where W should live or spend time.
There is no suggestion by either party that there should be individualised orders for any of the boys. Clearly, their views should be given less weight than those of their older sister, simply because of their ages and maturity.
The relationships of the child with the parents and other people
As mentioned above, the author of the Family Report noted that it was clear that the children have close and loving relationships with both of their parents, and there is nothing to suggest otherwise.
At the time of the Family Report interviews, the two older boys indicated that they were closer to their mother, and the author of the Family Report stated that the children’s primary attachment appeared to be with their mother. [34] However, that does not detract from the fact that they have close and loving relationships with their father.
[34] See paragraphs 30 and 45 of the Family Report.
At the time of the hearing, the father was living with his brother and his family and the children appear to have normal loving relationships with their uncle, aunt and cousins.
The extent to which the parents have fulfilled their obligations to maintain the children
It is clear that both parties contribute to the financial support of the children. They lived predominantly with the wife, but the husband pays child support which is adjusted from time to time because he pays some educational expenses.
There is no suggestion that the parties are shirking their obligations to support the children, and I do not accept the wife’s belief that the father is seeking to spend more time with the children because “he’s motivated by reducing his Child Support” (as suggested by her counsel in his closing submissions).[35]
The practical difficulty and expense of the children spending time with and/or communicating with a parent
[35] See page 207 of the Transcript
The parties do not live very far from each other so this is not a consideration that causes me any concern.
The capacity to provide for the children’s needs
This consideration refers specifically to providing “for the needs of the [children], including emotional and intellectual needs”.[36]
[36] Subsection 60CC(3)(f)(ii)
Nearly two years prior to the hearing, the Family Consultant said this in the Family Report:
The polarised nature of each parent’s narratives in no way diminishes the reported violence and the impact on the children. The children’s exposure to their parents’ frequent arguments has distressed and confused them as they struggle with which parent to believe. The longer the children are exposed to the parental conflict and feel responsible for their parent’s happiness the greater the long term effects will be on their social and emotional development.[37]
[37] At paragraph 43
The Family Consultant went on to say:
It would seem the parents have yet to establish a cooperative parenting relationship regarding their children and their needs. It is imperative that the children’s emotional and developmental needs are a priority and the parent’s conflict and their own individual needs and wants are seen as secondary. It will also be important for the children that the parents are able to settle property matters.
Despite the fact that the parties have not been able to settle property matters, I am of the view that the parents have come a long way since then. They have realised that at age 15, W is at a stage in her life when she needs to be allowed some independence. Both parties are to be congratulated in relation to their current attitude about that. Clearly, they have both considered the content of the Family Report carefully and learnt from it. It is particularly pleasing to see how well W has done academically, notwithstanding that she was clearly enmeshed in the parties’ dispute at the time of the interviews for the Family Report. It shows that both parties have learnt to put to children’s needs ahead of their own needs and in that regard, both parents are to be congratulated for the manner in which they have more recently been providing for the children’s physical, emotional and intellectual needs.
The attitudes of the parents to the children and parental responsibilities
In my view, this consideration overlaps with that set out immediately above.
However, I am concerned that the parents do not communicate well with each other in relation to decisions about the children that should be made jointly after consultation. For example, the father conceded during cross-examination that he had purchased a school uniform, an iPad and a mobile telephone for W without consulting the mother at all in relation to those purchases.[39]
[39] At pages 41 and 42 of the transcript
The father clearly believes that the mother is more to blame for their inability to communicate and consult. On at least three occasions he stated that the mother needed to be more “civil and cooperative” with him, and when asked whether he agreed that there was no effective communication as parents, he said:
So we – and at the moment we’re struggling. Of course, you know, we have a bit of a difficulty, but the thing is, as I said, the more time passes I expect her to be a bit more cooperative, bit more civil in the best interests of the children because she is the mother. I’m the father. We have to accept that fact.[40]
[40] At page 43 of the transcript
In my view, both parents need to understand that parents sharing parental responsibility must consult with each other in order to make joint decisions in the best interests of their children. That obligation is found in section 65DAC of the Act, which reads in part as follows:
65DAC(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
65DAC(2) The order is taken to require the decision to be made jointly by those persons.
65DAC(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
Any family violence involving the children or family member
This is referred to at paragraphs 46 to 50 above, so I need not repeat what I have already said.
The likely effect of any change in the children’s circumstances
It appears to be agreed between the parties that things have stabilised with the passage of time. This appears to be acknowledged by the husband in paragraph 5 of his trail affidavit, where he said:
Since Feb 6, 2013 children have been coming to my house every weekend including staying overnight on fortnightly basis. Despite having some issues about children’s drop off and pickup times in the past, I feel that things have normalised a lot during the past year or so …
As mentioned above, the husband is now essentially seeking orders that the boys live with him five nights per fortnight during school terms and for four weeks during school holidays. In essence, the wife is not opposed to the school holiday time, or additional weekend time during school terms if the father has his own accommodation.
At the time of the hearing, the husband had been living with his brother and his family since his separation from the wife. His evidence in relation to the accommodation was as follows in his affidavit:[41]
Since 15 September 2012, I have resided with my brother, his wife and their two little children … . In (country omitted) culture, children of early ages hardly sleep in separate rooms. This is a four bedroom large house which also has a rumpus room as well as a study area. My brother's children live in the same room with their parents. This house has sufficient rooms for my children to stay overnight on weekends and during the week. My daughter W has her own room. Two sons X (12) and Y (8) sleep in another room. My little 4 year old son Z sleeps with me in my room. I pay half of the rental with my brother in respect to the said premises. Since Feb 6, 2013, children have been sleeping overnight in this arrangement without any issues.
[41] At paragraph 14
When he was cross-examined about that, the husband’s evidence appeared to be contradictory.[42] I do not propose to canvass those contradictions here, but it is quite clear that his brother’s four bedroom house must be very cramped when the husband’s children visit, because sleeping accommodation is required for the husband, his brother and his wife, two girls aged 9 and 15 and four boys aged between 4 and 12.
[42] See transcript from page 19 to page 21
I therefore agree with the wife’s view that the husband’s time with his sons should not be increased until he obtains accommodation independent of his brother. It is therefore appropriate to include that as a condition of increased time.
Conclusions – parenting orders
Should the parties equally share parental responsibility?
As mentioned above, pursuant to Section 61DA of the Act, the court must apply a presumption that it is in the best interests of the for the parents to have “equal shared parental responsibility”, but that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.
I have determined above that there has been “family violence” as defined in subsection 4AB(1) of the Act, so the presumption does not automatically apply, notwithstanding that I have also concluded that the family violence was “situational” and is unlikely to recur.
However, in Runcorne & Raine [43] Murphy J pointed out the seriousness of depriving a parent of the ability to share parental responsibility. Beginning at paragraph 34, he said:
34. A finding that the parties are utterly incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility, and a finding that this incapacity is highly likely to spill over into regular future conflict for the children, appears to me to lead to a conclusion that the sharing of parental responsibility in the manner envisaged by s 65DAC – and, in particular, sharing parental responsibility equally - is contra-indicated in the best interests of the children.
35. Equally, though, an order for “sole parental responsibility” in favour of a party means (as, it seems to me, follows from the statutory definitions) that the other party has no “duties, powers, responsibilities and authority” in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
36. The exercise of discretion in favour of excluding completely one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
37. There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238).
[43] Runcorne & Raine [2008] FamCA 837
The husband is seeking orders that the parties share parental responsibility for the children, and the wife appears not to seek any order in that regard. However, I can see no convincing reason why equal shared parental responsibility should not apply.
Section 65DAA considerations
Also as mentioned above, if I make an order for the parents to have equal shared parental responsibility for the children, I must consider whether spending equal time with each of the parents would be in the best interests of the children and reasonably practicable, and if so, consider making such an order.[44]
[44] Subsection 65DAA(1)
In this case, the husband is only seeking an order that the children spend time with him for four weeks per year in the school holidays (to fit in with his leave from his employment), so it is clear that equal time is not a practical consideration.
Similarly, while the husband continues to live in his brother’s home, “substantial and significant time” (as defined in the Act) is not a practical consideration. It will be appropriate for the children to spend five nights per fortnight with the father when he obtains his own independent accommodation, and I accept that his employer will allow him sufficient flexibility for that to work.
I also note that the wife has shown flexibility in the arrangements for the children to spend time with their father, and I have confidence that will continue.
I will make parenting orders to take account of these matters.
Property matters - the parties’ positions
In his Case Outline the husband sought financial orders that can be summarised as follows:
·That the wife retain an apartment and land in (country omitted), which he estimated to be worth $99,692;
·That she retain all “matrimonial jewellery estimated value of $60,000”;
·That she retain “matrimonial household belongings including furniture, white goods etc. of estimated value of $10,000”;
·That the wife transfer to the husband all her right, title and interest in the former matrimonial home at Property W in Victoria;
·That the husband indemnify the Wife in relation to loans and credit card debts;
·That the wife return furniture belonging to failed business (omitted) to the husband (valued by him at $3,275);
·That the husband retain the vehicles currently in his possession (with an estimated value of $5,500);
·That “otherwise pursuant to s.79 of the Family Law Act there be a just and fair division of all matrimonial assets and resources”; and
·An order for costs.
At the conclusion of the hearing, the husband was still seeking a transfer of the former matrimonial home to him but stated that the wife “can stay in the house as a tenant. She can get rent assistance from the government – I don’t have any objection to that – until all my children become 18 years old. And during that period I will not increase the rent”. However, that proposition was put on the basis of paying the wife an “appropriate sum in consideration of the superannuation” and was made approximately one minute before the end of the hearing.[45]
[45] See page 221 of the transcript
In her Case Outline filed on 29 May 2015, the wife sought orders that can be summarised:
·That the husband transfer all his rights and interest in the former matrimonial home to her;
·That “pursuant to Section 79 of the Family Law Act there be a just and fair division of all matrimonial assets and resources”; and
·Costs.
That case Outline was not particularly helpful to the Court, but at the end of the hearing her counsel submitted that:
·the entire superannuation of the husband should be “transferred” to the wife (or at least that portion that was accumulated during the marriage);
·all of the “equity” in the former matrimonial home be retained by the wife;
·the parties each retain any other assets or personal possessions currently in their possession; and
·they each be responsible for whatever debts the parties currently have in their own names.
87.I note that neither party sought a superannuation splitting order before making closing submissions at the end of the hearing and that subsection 90MZD(1) of the Act provides that the Court “cannot make such an order unless the trustee has been accorded procedural fairness in relation to the making of the order”. In my view the word “cannot” is quite clear.
Property matters - relevant law
Prior to the High Court decision in Stanford v Stanford,[46] the general approach to the determination of a property settlement application appeared to have been well established by authority as a multi-step process.[47] The steps were said to involve:
a)Firstly, an identification and valuation of the property, liabilities and financial resources of the parties;
b)Secondly, an evaluation of the contributions made by the parties as defined in section 79(4) of the Act;
c)Thirdly, a consideration of any relevant matters under subsection 75(2) of the Act; and
d)Fourthly, before making an order adjusting property interests, being satisfied in all the circumstances that it is just and equitable to do so under subsection 79(2).[48]
[46] Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70
[47] See Lee Steere (1985) FLC 91-626; Ferraro (1993) FLC 92-335; Clauson (1995) FLC 92-595, Hickey (2003) FLC 93-143 and C & C (2005) FLC 93-220
[48] Also see Russell v Russell (1999) FLC 92-877
However, in Stanford, at paragraph 37, their Honours French CJ, Hayne, Kiefel and Bell JJ said:
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
In paragraph 40 of Stanford, their Honours went on to say:
40. Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.[49] To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[49] R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257
Subsection 79(2) provides that the “court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”
Subsection 79(4) sets out the matters to be taken into account when the court considers what orders (if any) should be made in property settlement proceedings. It is not necessary to recite them in full at this point.
In the majority judgment in Bevan & Bevan,[50] Bryant CJ and Thackray J said:
The High Court in Stanford has laid down three “fundamental propositions” which will provide useful guidance to trial judges in approaching the task under s 79. These were recited above, and could be summarised thus:
1. Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2. The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3. A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.[51]
[50] Bevan & Bevan (2013) FLC 93-545
[51] At paragraph 73
However, it is important to note that their Honours said this in paragraph 42 of Stanford:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In my view, this is one of those cases where it is just and equitable to make a property settlement order because there is not and will no longer be the common use of property by the parties. However, it is important to recall that subsection 79(4) states that ‘in considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account” the matters listed therein. The specific use of the words “what order (if any)” in the subsection clearly allows the court to make no order altering property interests if that is considered appropriate.
Since the end of 2002 courts have been required to treat any superannuation interest as “property” for the purposes of property settlements and in appropriate cases courts may “split” superannuation interests. However, I note that neither party in this matter sought a superannuation splitting order prior to closing submissions at the end of the hearing.
The asset pool
At paragraph 20 of his trial affidavit, the husband summarised his estimates of the “current family assets” as follows:
·The home - $440,000
·Land in (country omitted) in the wife’s name - $24,453
·Apartment in (country omitted) in the wife’s name - $75,239
·The husband’s superannuation - $101,186
·Cars - $5,500
·The wife’s jewellery - $60,000
·House furniture - $10,000
·Total - $716,378
Significantly, that list did not include his interest in the estate of his late mother. However, as stated above, I propose to exclude any property in (country omitted) when determining what property should be included in the asset pool.
The value of the former matrimonial home at $440,000 is agreed, as is the outstanding mortgage balance at $303,217 (making the agreed equity $136,783).
The wife accepts that the combined value of the husband’s interests in two superannuation funds is $101,186.
The wife accepted the value of the cars referred to above. Both are effectively in the possession of the husband (although one appears to have been made available to his brother).
The wife disputed that she had jewellery worth $60,000[52] and the husband accepted that I would be unable to form any opinion about his assertion based only upon one photograph of the wife wearing some jewellery.[53] He therefore conceded that jewellery should not be included in the asset pool.
[52] For example, see paragraph 19 of her affidavit filed 18 May 2015
[53] Annexure 21 to his trial affidavit
The wife did not accept that she is in possession of household furniture worth $10,000 and she gave household contents no value in her Financial Statement. As neither party obtained any chattel valuations, I am not prepared to attribute an arbitrary value to household furniture.
The husband claims to have other debts totalling $65,540, made up as follows:
·Personal Credit Union loan (being paid by the husband) - $7,001
·Husband's (omitted) Bank credit card - $8,253
·Husband's (omitted) bank credit card - $9,120
·Husband's (omitted) credit card credit card - $8,236
·Husband's (omitted) bank ready credit - $15,095
·Husband's (omitted) bank credit card - $7,545
·Husband's (omitted) bank credit card - $10,290
It appears that the only one of those accepted by the wife as being relevant is the Credit Union loan of $7,001. I will take that debt into account but, for a number of reasons set out below, I do not consider it appropriate to take the six credit card debts into account.
A significant proportion of the total credit card debt appears to relate to the husband’s legal costs. In relation to that, the husband said this in his trial affidavit:[54]
Since separation, the Husband has incurred further debts mostly to pay legal bills of more than $40,000 to get access to the children; to represent for IVO applications at Werribee Magistrate Court etc as the Husband could not see the children at all for several months.
[54] See paragraph 34
In the same paragraph he also said he had paid some thousands of dollars in medical costs for his late mother before she died. The husband has somewhat reluctantly conceded that he is now entitled to one quarter of her estate.
Although the husband vehemently asserted that he is not involved in his brother’s computer business, he conceded that he had used his credit cards to assist his brother pay some of the expenses of that business.
On that basis, the asset pool I will take into account is as follows:
Assets Former matrimonial home $440,000 Husband’s superannuation $101,186 Husband’s cars $5,500 Total value of assets $546,686 Liabilities Mortgage balance $303,217 Personal loan balance $7,001 Total value of liabilities $310,218 Net value of asset pool $236,468
Contributions
The husband summarised the parties roles within their marriage at paragraph 18 of his trial affidavit as follows:
At the beginning of our marriage, we both had very little. I obtained my (qualifications omitted) within about four years of marriage and I commenced working with (employer omitted) where I continue to be employed. I have worked fulltime throughout the marriage and the Wife has been the primary carer of the children and homemaker.
Certainly, the husband’s direct financial contributions must have been greater than those of the wife. However, it is clear that contributions “made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent”[55] should not merely be recognised in a token manner, but rather, they should be recognised in a substantial way.[56]
[55] See section 79(4)(c)
[56] See Rolfe and Rolfe (1979) FLC 90-62 and Mallet v Mallet (1984) FLC 91-507
This was reinforced in Ferraro, [57] when the Full Court said:
The task of evaluating and comparing the parties’ respective contributions where one party has exclusively been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a “level playing field”. Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and cannot be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role.[58]
[57] Ferraro (1993) FLC 92-335
[58] Per Fogarty, Murray and Baker JJ at page 79,572
In Bigelow & Reuter, [59] Kay J (sitting as the Full Court of the Family Court of Australia) said:
What was the relevant finding is that the wife, whatever she was doing in the course of the relationship, was not able to earn money at the same rate that the husband was able to earn, but there is nothing to indicate that she was not pulling her weight in terms of effort and endeavour.
[59] Bigelow & Reuter [2006] FamCA 1455
I conclude that the parties contributions during their marriage should be give equal weight.
Subsection 75(2) factors
As stated above, the husband is 47 years old and the wife is aged 39 years. I have no evidence to suggest that they are not in good health.
As the husband stated in his trial affidavit, he is employed by (employer omitted) and has a taxable income in excess of $100,000 per annum, whereas the wife earns approximately $30,500 per annum. It is likely that the significant disparity in their incomes will continue for the foreseeable future.
The wife will continue to be the primary carer for the children, so the husband will continue to be assessed to pay Child Support to the wife.
It is clear that the subsection 75(2) factors are weighted in favour of the wife.
Discussion
The husband retains his superannuation. He has referred to its value at separation, but I am of the view that it should be considered at its current value. That is because the wife has been primarily responsible for the care of the children while the husband had been able to work in a better paid position and improve the value of his superannuation.
The husband therefore retains superannuation and cars with a combined value of $106,686. However, if he continues to be responsible for the credit union loan of $7,001, the net value to him will be $99,685, being 42% of the asset pool set out above.
If the wife retains the former matrimonial home, subject to the mortgage, the net value to her is $136,783, being 58% of the asset pool.
In other circumstances, I would have awarded a greater percentage to the wife, but the options available to the Court are limited by the parties’ circumstances and because both parties have been less than frank in their evidence. However, I am satisfied that they both have financial interests in (country omitted) that they have not been willing to disclose.
The wife says she may be able to borrow up to $305,000 to be able to discharge husband’s current liability under the mortgage. However, the total sum available to her may be less than $305,000 if the mortgagee limits her borrowings to 65% of the value of the property as was suggested during the hearing. I do not know whether she is able to receive assistance from others (such as relatives in (country omitted)), but she should be given that opportunity in order to do justice to her claim (and to keep the home available to the children, which is what both parties want).
In those circumstances, the wife should be given longer than is usual to raise the necessary funds. I therefore propose to allow her up to 12 months to finalise the discharge of the existing mortgage liability. That should not cause any hardship to the husband because the wife is paying the mortgage and he wants the home to remain available for the children.
Clearly, if the wife in unable to raise the necessary funds to discharge the husband’s liability under the existing mortgage within that 12 months, the former matrimonial home will have to be sold and the wife will be entitled to receive the entire net sale proceeds.
I will make orders to take account of what I have set out above.
Procedure
I heard this matter in Melbourne but I will be delivering this decision in Tasmania. My Associate will make arrangements to provide copies of these Reasons and the Orders by electronic means or by mail.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Date: 28 January 2016
[38] At paragraph 57
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