Sceterra and Sceterra
[2010] FamCA 23
•21 January 2010
FAMILY COURT OF AUSTRALIA
| SCETERRA & SCETERRA | [2010] FamCA 23 |
| FAMILY LAW – CHILDREN – parenting FAMILY LAW – PROPERTY – alternation of property interests |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Sceterra |
| RESPONDENT: | Ms Sceterra |
| FILE NUMBER: | SYC | 3878 | of | 2007 |
| DATE DELIVERED: | 21 January 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 1 May 2009; 7 July 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Heness |
| SOLICITOR FOR THE APPLICANT: | Worthington Williams Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies |
| SOLICITOR FOR THE RESPONDENT: | Adams & Partners |
Orders
Children
The child, N (“the child”), born … July 1999, live with the wife.
The wife have sole parental responsibility for the child.
The wife write to the husband twenty-one (21) days before implementing any major decision in relation to the child’s education, informing the husband of the wife’s proposal.
The husband may within fourteen (14) days of receiving the information from the wife write to the wife to provide her with his opinion about the cause of action she proposes. In the event that the husband does that, the wife will consider the husband’s opinion before implementing her decision on a final basis. (without being bound to change her proposal as a result of receiving the husband’s opinion)
The husband telephone the child between 4.30 pm and 5 pm each Tuesday and each Thursday. That telephone call is to be made by the husband to the wife's land line and the wife is to do all things she can do to facilitate the child being available to take the husband's call.
The child spend time with her father as follows:
6.1.From 8.30am to 4.30pm during non‑daylight saving time and from 9am to 5.30pm in daylight saving time each alternate Saturday. Changeover is to be at Westfield.
6.2.If the husband's normal weekend is not on his birthday then there will be a swapping of weekends so that the child sees her father on the Saturday that is his birthday.
Pending further order the husband is restrained from attending the child’s school at any time other than to attend school functions or sporting activities normally attended by a reasonable number of other parents.
Neither parent say anything to the child which would denigrate the other parent and that includes the husband making any comment to the child about the wife's sexual activity or whether or not she is a lesbian.
The husband is restrained from coming within 100 metres of the wife's residence from time to time and her place of employment from time to time.
Property
An order is made, pursuant to section 79 of the Family Law Act, in the terms of paragraphs 11 to 22 below.
The wife retain the sole right, title and interest in the property known as and situated at L (“the L property”).
The wife retain the sole right, title and interest in the property known as and situated at G (“the G property”).
The wife retain the sole right, title and interest in the 1996 Toyota Celica motor vehicle.
The wife retain the sole right, title and interest in the contents at the L property.
The parties do all things and sign all necessary documents to divide equally between themselves the NRMA shares.
The wife indemnify and keep indemnified the husband in respect of the mortgage encumbering the L and G properties.
The wife indemnify and keep indemnified the husband against any liability arising out of the judgment debt entered in the New Zealand Magistrates Court relating to proceedings with R Company.
The wife be responsible for her own taxation debt to the Australian Taxation Office and indemnify the husband in respect of any claim in relation to that liability.
Both parties indemnify the other in relation to any liability connected with any asset in their respective name, control or possession.
Otherwise than as provided in these orders, each party retain sole right, title and interest in any other property in their respective name, control or possession.
The parties do all things and sign all documents necessary to divide the Sceterra Family Superannuation Fund as to 78.3 percent to the wife and 21.7 percent to the husband and for that purpose;
21.1.whenever a splittable payment is payable in respect of the superannuation interest of the wife in the Sceterra Family Superannuation Fund the husband is entitled to be paid 21.7 percent of that splittable payment and there is to be a corresponding reduction in the interest that the wife would otherwise have but for this order in the fund.
21.2.whenever a splittable payment is payable in respect of the superannuation interest of the husband in the Scettera Family Superannuation Fund the wife is entitled to be paid 78.3 percent of that splittable payment and there is to be a corresponding reduction in the entitlement that the husband would otherwise have but for this order in the fund.
The previous order binds the trustees from time to time of the Sceterra Family Superannuation fund.
Where a party is required by these orders to do something by a particular date or within a particular period of time, if that party does not do so, pursuant to section 106A of the Family Law Act, a Registrar of the Family Court of Australia, Sydney Registry, be authorised to execute such form or document, including any necessary transfer document, on behalf of that party or those parties who have not complied, within the required time, with these orders and to do all acts and things necessary to give effect to the orders.
Interim Order 5 (requiring the wife to deposit with the Registrar of the Family Court of Australia at Sydney the child’s passport and leave it deposited with the Registry) made on 24 June 2008 be discharged.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations the parenting 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.
IT IS NOTED that publication of this judgment under the pseudonym Sceterra & Sceterra is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3878 of 2007
| MR SCETERRA |
Applicant
And
| MS SCETERRA |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This case is about what parenting arrangements should be made in respect of the child N, born in July 1999 (currently 10 years of age). The applicant husband is seeking orders that the child live with the wife and the parties have joint parental responsibility for the child in relation to education only. He seeks, inter alia, that the child spend one day with him every two weeks from 8.00 am to 8.00 pm and each school day from 8.30 am to 9.00 am. The wife seeks that the child reside with her, that she be granted sole parental responsibility. Initially, the wife sought that the issue of the husband’s time with the child be reserved pending the husband’s psychiatric assessment, but she modified that position during the hearing (see below). There is an issue as to who should make decisions about which school the child should attend.
A major area of factual dispute in this case relates to allegations by the wife that the husband subjected her to serious and systematic physical abuse during the marriage. The husband denies that he was violent or abusive on any occasion.
The parties also seek property orders pursuant to s 79 Family Law Act (“FLA”).
APPLICATIONS (parenting and property)
The husband
The orders originally sought by the husband are set out in his Amended Application for Final Orders, filed 18 November 2008. The orders sought are as follows:
4.1.THAT the child of the marriage, namely [N], a female, born […] July, 1999 (“the child”) live with the wife.
4.2.THAT the child spend time with the husband as follows:-
2.1Every alternative Saturday between 8.00am and 8.00pm.
2.2On the husband’s birthday between 8.00am and 8.00pm or after school to 8.00pm if on a school day.
4.3.THAT the child attend the local catholic school.
4.4.THAT the parties have the joint parental responsibility of the child.
4.5.THAT the parties forthwith do all things necessary to sell the following properties:-
5.1[L property]
5.2[G property]
4.6.THAT upon completion of each sale the proceeds of such sale be distributed in the following manner and priority:-
6.1in payment of any real estate agency commission and/or fees ancillary to each sale;
6.2in payment of all legal fees ancillary to each sale;
6.3in payment of all outstanding council, water and strata unit levies/rates
6.4in payment of all loans which are secured, by way of mortgage, as against the title of each property
6.5in payment of the balance, in equal shares to the parties.
4.7.THAT the parties enter into a superannuation splitting order which, in effect, provides the husband with 42.5% of the net value of the asset pool taking into account he receives one-half of the net proceeds of sale of the subject real estate.
4.8.THAT in respect of all other property, not specifically referred to herein, each party be declared the sole owner, to the exclusion of the other, of all property in their current possession and/or control.
4.9.THAT in respect of all other liabilities, not specifically referred to herein, each party be solely responsible for and indemnify and keep indemnified the other, in respect of all liabilities in their sole name.
During the hearing counsel for the husband sought leave to amend his application to include an order that the husband be allowed to spend time with the child between 8:30am and 9:00am each school day. In final submissions, the husband seemed to press the issue of parental responsibility, only so far as it related to decisions about schooling.
The wife
In her Amended Response filed 18 September 2008, the wife seeks orders in the following terms:
6.1.That the wife retain the sole right, title and interest in the property known as and situate at [L] in the State of New South Wales.
6.2.That the wife retain the sole right, title and interest in the property known as and situate at [G] in the State of New South Wales.
6.3.That the wife retain the sole right, title and interest in the 1996 Toyota Celica Motor Vehicle.
6.4.That the wife retain an amount of $75,000.00 from the joint Superannuation Fund with Macquarie Investments and for this purpose each party shall do all such things necessary to allow the wife to withdraw such amount from the fund.
6.5.That the parties do all things necessary to sell or discharge the NRMA Shares in their joint names and shall therefore share equally the proceeds of such sale.
6.6.That the wife indemnify and keep indemnified the husband in respect of the mortgage encumbering the property known as and situate at [L] in the State of New South Wales.
6.7.That the wife indemnify and keep indemnified the husband in respect of the mortgage encumbering the property known as and situate at [G] in the State of New South Wales.
6.8.That the wife indemnify and keep indemnified the husband against any liability arising out of judgment debt with the New Zealand Magistrates Court relating to proceedings with [R Company].
6.9.That the wife indemnify the husband in respect of any liability in her name, control or possession.
6.10.That the husband indemnify the wife in respect of any liability in his name, control or possession.
6.11.That otherwise than as provided for in these Orders, the husband retain the sole right title and interest in any other property in his name, control or possession.
6.12.That otherwise than as provided for in these Orders, the wife retain the sole right title and interest in any other property in her name, control or possession.
6.13.That the husband pay the wife’s costs of and incidental in these proceedings.
6.14.That the child [N] born […] July 1999 live with the wife.
6.15.That the wife have sole parental responsibility for the child.
6.16.That the issue of the husband’s time with the child be reserved pending the further underdoing psychiatric assessment.
During the hearing counsel for the wife indicated that her client was amenable to the husband spending time with the child one day per fortnight, but opposed the husband being allowed to attend the child’s school except for the purpose of official school functions. The wife proposed that there be defined periods of telephone communication, and suggested that the husband ring the wife’s home on two occasions during the week between the hours of 4:30pm and 5:00pm. In addition, the wife is seeking an order that within 28 days of the conclusion of the hearing, the husband seek a referral from his general practitioner to a psychiatrist, undergo a consultation with that psychiatrist and comply with any consequent recommendations. Counsel for the wife also indicated that her client seeks a non-denigration order.
INTERIM ORDERS
On 1 May 2009 interim orders were made in the following terms:-
1.Pending further orders, the child of the marriage [N] (born […].7.1999) live with the mother.
2.[The child] spend time with her father as follows:
2.1.From 8.30am to 4.30pm during non‑daylight saving time and from 9am to 5.30pm in daylight saving time each alternate Saturday. Changeover is to be at [Westfield].
2.2.If the father's normal weekend is not on his birthday in 2009 then there will be a swapping of weekends so that [the child] sees her father on the Saturday that is his birthday.
3.The father is restrained from coming within 100 metres of the mother's residence from time to time and her place of employment from time to time.
4.Pending further order the husband is restrained from attending [the child’s] school at any time other than to attend school functions or sporting activities normally attended by a reasonable number of other parents.
5.The mother have sole parental responsibility and in the event that she needs to take any major decision in relation to [the child] she will first write to the father 21 days before implementing any proposal, informing him in writing of the proposal and wait a further 14 days to allow the father to provide to the mother in writing his opinion on the course of action that she proposes.
6.The father telephone [the child] between 4.30 and 5 pm each Tuesday and each Thursday, that telephone call is to be made by the father to the mother's land line and the mother is to do all things she can do to facilitate [the child] being available to take the father's call.
7.Pending further order neither parent say anything to [the child] which would denigrate the other parent and that includes the father making any comment to [the child] about the mother's sexual activity or whether or not she is a lesbian.
DOCUMENTS READ
The following documents were before me in this matter:
Husband
Affidavit of the husband filed 29 July 2008.
Affidavit of the husband filed 18 November 2008.
Affidavit filed by BM (this affidavit was originally filed on behalf of the wife). Further oral evidence was led from BM.
Financial Statement of the husband filed 29 July 2008.
Wife
The wife relies upon affidavits sworn by her on 16 December 2008, 23 July 2008 and 2 November 2008.
The family report of Dr F dated 11 September 2008.
SHORT HISTORY
The husband was born in 1960 in India and is currently 49 years of age.
The wife was born in 1961 in India and is currently 48 years of age.
The parties’ first child, S, was born in 1988 and is currently 21 years of age.
The parties second child, N, was born in July 1999 and is currently 10 years of age.
The parties married in December 1987.
According to the husband, the parties separated on 15 June 2006. The wife gives this date as January 2004.
CREDIT
Husband
The husband has been convicted on two occasions, once of an offence of forgery (an offence of dishonesty) and another of breaching an Apprehended Violence Order (AVO) (in circumstances which the husband is denying any family violence.)
I deal in more detail below with findings in relation to family violence. The husband’s position was that there was no family violence. The child of the marriage, S, then aged nearly 20, was interviewed by Dr F in August 2008. Dr F has reported in relation to that interview. S told Dr F about his father being very physical with him and with the wife; S standing between his mother and father in order to stop his father hitting his mother; being kept “hostage” by the husband in the matrimonial home and being locked with his mother into a bathroom by his father. He remembers sleeping in a car with his mother and sister because they had to get away from the house because of his father’s behaviour. The husband denies that any of this happened. I am unable to accept the husband’s denials as being credible.
The husband’s credit was impugned as a result of a number of answers that he gave.
His oral evidence in relation to the times that N was with him did not correspond with the exhibited record in relation to N’s attendances at child care. The husband gave evidence that he thought that the wife had an interest in a property in India. When tested on that evidence, his assertion was totally unreliable.
The husband conceded in oral evidence that he had been to India but because he was on holidays he had not made any inquiry as to the existence of this property in respect of which he alleged the wife had an interest.
Similarly, he made a further allegation the wife had a claim in some type of litigation in Mumbai arising out of the estate of her late and/or missing father. He agreed however in twelve years and two visits to India, he had never made any inquiry about the litigation he said the wife was conducting in that country.
This matter was case managed by me for some time. It does not do the husband’s credit any good at all for him to have raised the prospect of the wife having interests in two pieces of real estate in India on the last day of the hearing, not having mentioned it anywhere previously.
I found the husband’s evidence in relation to the disposition of a business he operated for three years in respect of which he had paid $40,000 as being unconvincing. His original evidence that the business was sold to the same person who purchased the M property turned out to be unreliable.
The husband has pleaded guilty to embezzling the children’s scholarship account. He served a period of imprisonment, having pleaded guilty to that offence. In oral evidence before me he told me that he had not actually committed the offence (his evidence was that the forgery on the documentation that purported to be the wife’s signature was carried out by BM. I am unable to believe the husband about that.
Wife
Counsel for the husband pointed to the fact that the wife in her sworn evidence had proposed two dates of separation that she resiled from in oral evidence. The first date of separation proposed by the wife was in paragraph 4 of the affidavit sworn by the wife on 23 July 2008. There the wife says “the applicant and I separated on 15 June 2006”. It was an agreed fact that that was the date upon which the husband left the L property. Prior to that time however he had been living in one part of the property that could be shut off from the other part of the property and there was AVOs in place restricting the husband’s movements and contact with the wife. The husband asserts that the date of final separation was 15 June 2006. I do not accept that that could be so given the circumstances in which the AVO was sought and the terms of the AVO.
The next date given by the wife as separation is contained in paragraph 4 of her affidavit of 16 September 2008. There she says that the applicant and she separated in January 2005. The wife explained in oral evidence that she had thought January 2005 was the date of the sale of the M property. She has subsequently ascertained that that date was January 2004 and she amended the date of separation to January 2004.
Whilst the wife’s evidence about date of separation is less than satisfactory, I do not think it affects her credibility in any significant way. I accept that in the first affidavit she was simply giving evidence about when the parties actually physically separated. In the second affidavit she was attempting to say when, in her view, the marriage broke down and she got the date wrong because she misremembered the date of a conveyancing transaction.
Counsel for the husband also criticised the wife for the fact that in paragraph 82 of her affidavit sworn 23 July 2008 she said that “I paid the setup costs of this fund which were $900”. The fund referred to is the self managed superannuation fund that the parties set up prior to separation. The wife in oral evidence conceded that the amount of $900 was refunded to her and she conceded therefore that paragraph 82 of her affidavit did not tell the full story. This is a minor matter and not one which I believe affects the wife’s credibility in any meaningful way.
Counsel for the husband submitted that in cross examination the wife was vague and her memory was poor. It was true that on a number of occasions the wife indicated she could not remember or did not know the detail about a specific monetary transaction.
Looking at her evidence overall I find the wife did not deliberately set out to avoid questions or withhold information.
Conclusion on credit
Where the parties disagree about matters of fact I prefer the version given by the wife over the version given by the husband.
DATE OF SEPARATION
The husband asserts a date of separation as June 2006. The wife says it was 1 January 2004.
Counsel for the husband pointed to the fact that after the date of separation alleged by the wife, the parties involved themselves in a number of joint conveyancing transactions. The first was the acquisition of a property at A where the wife was partly on the title (although the husband was a 90 percent owner of the property). The contract for the A property was exchanged in June 2004.
The next was an ill-fated off the plan purchase of two units at H. The contracts for the purchase of those units took place in May 2004. The wife’s evidence is that the husband, because of cross collateralisation, insisted that her name be on these conveyancing transactions. One of the properties that was purchased off the plan did not actually receive development approval and the developer did not build it. The deposit on that property was transferred to the other property and subsequently refunded.
The wife sets out the pressure she was placed under to sign these contracts in paragraph 85 of her affidavit sworn 23 July 2008. I accept her evidence in relation to that matter. The net affect of the H property transaction was that although there was a refund of about $9,000 which apparently was received by the husband, there was an overall loss arising from the H property of about $36,000. I find it is appropriate for that loss to be born by the husband.
The husband also points to the fact that the wife participated in the acquisition of properties off the plan in New Zealand. Again, counsel for the husband points to the fact that those contracts were entered into after the date alleged by the wife as the date of separation. Counsel also points to the fact that the property at Y which was acquired in April 2005 for $245,000 with a borrowing from St George of $264,000 was something in respect of which the wife had an interest as legal owner. I accept the wife’s evidence that she had no knowledge as to what happened in relation to the acquisition of the Y property (apart from obviously signing documents) until well after that transaction had happened.
Counsel for the husband asserted that the wife had the use of the balance of the borrowings (the difference between $245,000 and $264,000). The wife denied that that was so and I accept they were not monies that came into the control or use of the wife.
I accept the wife’s version of events over the husband where those versions differ. I accept that the parties did effectively separate in January 2004, notwithstanding the fact that the parties continued to involve themselves in a number of conveyancing transactions.
CHRONOLOGY
The parties married and commenced to live together in India in December 1987.
They migrated from India in 1994.
The wife says that the husband’s violence towards her increased in about 1992.
The parties purchased a villa in K for $107,000 in 1994. A mortgage was obtained from the Commonwealth Bank. In 1996 the wife completed her university course. After the wife obtained employment in her field the wife says that the husband began assaulting her in the common areas of the home in the presence of the children.
In 1996 the parties purchased another villa in K for $110,000. A mortgage was obtained over that property.
In 1998 the husband ceased to be employed by the Commonwealth Bank. The parties sold both K villas. One of them sold for approximately $135,000 and the other sold for approximately $125,000. The proceeds of the sale were used to purchase land at M in the sum of $130,000.
In 1999 the husband started his own business. The wife was pregnant with N at this time and says that on two occasions the husband assaulted her by kicking her in the stomach.
The husband accused the wife of having an affair with his brother in 2000 and the wife reports violence escalating at that time.
In 2001 the husband opened a shop business. At about this time the wife moved to a separate bedroom. The wife alleges that after this time there were about three or four occasions when the husband forced her to have sexual intercourse.
In 2004 the husband ceased operating his business.
In 2005 the wife says that after an assault and threats to kill her she took the children and slept with them in the car at the train station.
The wife says in January 2004 the parties separated under the one roof. The M property was sold and the parties received a sum of $260,000 as the net proceeds. The parties agreed at that time to split the proceeds evenly but the husband took $160,000 and the wife received $100,000.
The wife used the $100,000 she received to assist in the purchase of a property at L, in her sole name.
At the time of the separation, the parties also had entered into a contract to purchase a property at Y at that time. The wife contributed to the mortgage payments in relation to that property. The bank entered the property and sold it. There were no proceeds of the sale left for the parties.
Between mid 2005 and mid 2006 the husband lived in a flat at the back of the wife’s property. On 25 November 2005 an AVO issued from the Local Court. The protected persons under that order were the wife and the child of the marriage S. The husband was subject of that order for two years.
In March/ April 2006 the wife purchased G property. She used the L property as security for the mortgage.
Between mid 2006 and October 2008 the husband lived with BM.
In May 2008 the husband stopped seeing the child N on weekends.
In July 2008 the husband took up residence in a three bedroom home in L, where he rented one room.
THE MATTERS I MUST CONSIDER ABOUT N
In deciding whether to make a particular parenting order my paramount consideration is the child’s best interests.
To determine what is in N’s best interests I must primarily consider those matters set out in section 60CC(2) FLA and additionally consider those matters set out in section 60 CC(3) FLA.
PRIMARY CONSIDERATIONS
Meaningful relationship
I find that it would be beneficial for N to have a meaningful relationship with both her parents. The extent to which her relationship with her father can be developed however, is limited to some extent by the other primary consideration.
Protection from harm
In this case, the opportunities to allow the maintenance and development of the relationship between N and her father need to be constrained because of a counterbalancing need to protect the child from harm from being subjected to or being exposed to, abuse, neglect or family violence.
A major area of factual dispute in this matter relates to alleged abuse of the wife by the husband during the relationship. In her affidavit filed 30 July 2008, the wife alleges that she was subjected to serious and systematic domestic violence by the husband, which included her being slapped, punched, kicked, having her hair pulled, being pushed to the ground, having objects thrown at her, and perhaps most seriously, being made to have sexual intercourse with the husband on three to four occasions against her will. The husband denies that he was ever violent.
I will set out below the wife’ s evidence in relation to issues of violence and the husband’s evidence in relation to those issues. The specific details of the wife’s allegations of violence were not the subject of any close scrutiny during the hearing. This may have been because the wife’s reached the conclusion that the child should see her father on a daily basis and the husband was not pressing for overnight time or extended holiday time. In relation to the more serious allegations by the wife because they were not the subject of any significant testing I do not intend to proceed to make specific findings in respect to specific allegations. I do however record the evidence given by both parties and in a general way I will reach a general conclusion that the wife has been subjected to family violence throughout the marriage and since the separation. The wife, however, has not been affected by the family violence to such an extent that would mean that it would be in the child’s best interest to spend no time with the husband.
The wife’s evidence
The wife makes the following statements in her affidavit:
70.1.“The first incident of violence occurred shortly after our marriage. The husband would hit or slap me approximately once per month after a verbal argument”. (paragraph 7)
70.2.The husband was very controlling of her and would not allow her to leave the house unaccompanied. She states that she had no financial independence as her salary went into his bank accounts (paragraph 8).
70.3.The violence towards her increased in or about 1992, following the death of her father and the departure of her brother overseas. The wife states that “The husband began to physically abuse me 3 to 4 times per month. The husband would punch me with a closed fist, slap me, hit my head, pull my hair, kick me and throw things at me” (paragraph 9).
70.4.After each incident of violence, the husband would apologise to her and say words to the effect of “It will not happen again” (paragraph 10).
70.5.The violence committed against her by the husband escalated significantly shortly after their migration from India to Australia in or about 1994 (paragraph 11).
70.6.The husband continued to be very financially controlling of her, withdrawing her wages from her account (paragraph 12).
70.7.The husband was physically and verbally abusive if she was invited to functions after work. As a result of her fear of the husband, the wife did not attend social functions and became very isolated (paragraph 13).
70.8.Following their move to Australia, the husband became very jealous and insisted that she was having affairs. The wife states that “the father would be physically abusive and hit and kick me if he saw me talking to another man” (paragraph 14).
70.9.The husband was very verbally abusive towards her in the presence of their children (paragraph 15).
70.10.The violence towards the wife increased at the time she was completing a two year university course in 1996. She states that she was constantly fearful of being assaulted during this period, however did not complain as she was scared that the husband would prevent her from studying if she did (paragraph 18).
70.11.The wife states: “In 1999 I was pregnant with [N]. The husband continued to be physically abusive towards me during the pregnancy. I recall two specific occasions when the husband kicked me to the stomach. I was very fearful at the time that our baby had been injured”. (paragraph 19)
70.12.The violence towards the wife increased once she commenced employment at a school (paragraph 20). At paragraph 21 she states “When I would return from work the husband would punch, kick and slap me and throw things at me also. This began to occur a couple of times a week”.
70.13.In paragraph 22 the wife states: “Most of the violence up until this point has been in our bedroom and at night. The husband would push me to the floor and I would crawl to the corner of the room. The husband would then hit and kick me whilst I lied there crying and trying to cover myself to protect myself”.
70.14.The wife states at paragraph 23 that when she began employment, the husband began to assault her in the family rooms of the house and in the presence of the children.
70.15.When the husband’s brother and his family came to stay with them from India, the husband would accuse her of having an affair with his brother and would be physically violent towards her each night that they were there. The wife states “In our room each evening, the husband would hit and kick me in the head, back and arms. During this period, the husband also made me sleep on the floor of our bedroom without pillow or blanket” (paragraph 25).
70.16.In paragraph 27 the wife states: “When I began to stay home the husband would call me several times an afternoon to make sure I was home. If I missed a call the husband would hit me when he returned home”.
70.17.When she said to the husband that she would not sleep in the same room as him until he got help, the physical abuse got worse and she began to sleep in a separate room (paragraph 28).
70.18.Paragraph 30 says: “On 3 to 4 occasions the husband came into the spare room and forced me to have sexual intercourse with him against my will”.
70.19.The wife began to sleep in the children’s rooms as she did not think that the husband would assault her with the children present (paragraph 31).
70.20.In paragraph 32 the wife says: “On one occasion however the husband entered the room where I was sleeping with both [S] and [N]. He punched me in the face and started to touch my genitals. My son woke up and tried to push his father’s hands away. The husband picked up a pillow and put it on our son’s face. [S] began to struggle and kick. I was screaming and trying to pull the pillow off [S’s] face. [N] woke up crying. Eventually the husband let go of the pillow and left the room”.
70.21.Prior to the parties’ separation she took a day off work on two separate occasions as the husband has assaulted her and given her bruises. She states that on each of these occasions the husband had locked her in the study for about 6 hours without food or water while the children were at school (paragraph 33).
70.22.In 2005 “the husband assaulted me and said to me words to the effect of ‘I will kill you and then myself and all the troubles will end’. On that occasion I left the home with the two children and we slept in my car at […] Train Station”. (paragraph 34) The wife states at paragraph 35 that on another occasion around this time, the husband again threatened to kill her and she and [N] slept in her car behind the local petrol station while [S] arranged to stay at a friend’s house.
On 24 June 2008 the parties gave evidence about an incident that took place in about November 2005. In her affidavit the wife elaborates that the husband, two children and herself were driving to attend a social function. While he was driving, the husband began to accuse her of having affairs with other men, which she denied. The husband then began to scream at her and leant across and hit her on the cheek with his hand. He pulled the car over to the side of the road and told the wife to get out of the car, which she did. The car drove off and the wife walked to a church and then took a taxi to the train station. She boarded a train to the local Station and walked home from there. The husband was not home when she arrived. (paragraph 37) The wife states that when the husband arrived home, he “hit me in the side of the head and pushed me to the ground. I then observed the applicant to lift a chair and I feared he was going to throw the chair at me. As the applicant lifted the chair I observed my son to stand between the applicant and I and grab his father’s hands. I then observed the applicant to hit our son in the face. I then observed my son to run out of the front door. I picked up [N] and ran after [S]. The father was chasing us in the middle of the road”. The wife states that she and the children did not return home until the police arrived. At paragraph 48 the wife states “This was the first occasion I had ever sought police assistance. I had never sought assistance from the police before as I was embarrassed and also fearful of the consequences of further violence. It was also difficult for me to seek assistance as culturally it is not acceptable that I involve others in my marital issues”.
The wife states at paragraph 24 that when she began employment, her son S began to try and intervene. He would stand between his parents and say to his father “You cannot do this to my mother”. The husband began to hit S. The husband also began to berate S in front of his friends and cause him great embarrassment. In relation to the husband’s behaviour towards the child S, the wife states at paragraph 16: “The husband also hit our son [S] when he was young. The husband has very high expectations of [S] academically and would smack him if he did not perform as well as he expected. The husband would also yell and smack [S] for little things like not packing his toys away”. At paragraph 17, the wife states that “the husband was also very verbally abusive towards [S] and would yell at him in front of friends. If I intervened and tried to have the father stop this criticism and yelling at [S] the husband would hit me when we returned home”.
In summary, the wife states
73.1.“On average throughout our marriage, I would say that I was subjected to physical abuse three to four times per month” (paragraph 50).
73.2.“During these assaults, the applicant would hit me in the face, head and back with both a closed fist and open hand. The applicant would also push me to the ground and kick me in my legs and back. The applicant would also pick up objects such as plates, cutlery, chairs and books and throw these at me”. (paragraph 51) “As a result of the applicant’s assaults upon me I suffered bruising, swelling, joint and muscular pain, headaches and black eyes. I tried my best to cover these symptoms with clothing, sunglasses or hates. I would also take time of [sic] work to avoid people seeing my injuries”. (paragraph 52) “I did not seek medical assistance for any of the injuries suffered as I feared that I would be questioned as to how my injuries occurred” (paragraph 53).
73.3.“Both of my children have witnesses these assaults upon me on many occasions” (paragraph 54).
73.4.“The husband has on several other occasions pinned our son down with his arm over [S’s] throat” (paragraph 55).
73.5.The husband was verbally abusive to her throughout the marriage (paragraph 56).
73.6.“As a result of the husband’s abuse, I would feel embarrassed, ashamed, humiliated and stupid. I began to doubt my ability and self worth. There were many occasions when I would get very upset and cry uncontrollably as I was so distraught” (paragraph 57).
The husband was convicted for breach of an Apprehended Violence Order in 2007. He pleaded guilty to that charge. The wife states in her affidavit filed 30 July 2008 that the breach occurred when the husband broke a window in order to gain entry to her house. At that time he was living in a granny flat at the rear of the property. The wife states that the terms of the AVO were amended against the advice of the police to facilitate this arrangement.
The husband’s evidence
In his affidavit filed 18 November 2008, the husband deals with the various allegations made by the wife in relation to the topic of abuse during the marriage. In essence, he denies having been abusive to either the wife or the children over the course of the relationship, except for the incident in the motor vehicle in which he states that he slapped the wife on the cheek in response to her having slapped him on the cheek. The husband states that the wife hit him in annoyance because he was singing along to Indian music while the family was driving in the car to attend a fete. The husband states that the wife opened the door of the moving car and demanded that he stop the car so that she could get out. He states that he did so. He states that when he and the children returned home, the police were in attendance and he was questioned about the incident.
During the hearing the husband stated under cross-examination that he was never violent towards the wife at all during the marriage, save for the one occasion on which he slapped her in response to her having slapped him. He stated that he did not remember an occasion on which the wife and the children left the property and slept in the car in order to avoid his violent behaviour. The husband stated that if that had in fact occurred, “it’s not definitely related to me, maybe for some other reason”. When asked by me what possible reason the wife would have to leave the property and sleep in the car at the train station, the husband stated that he did not know.
I have made findings that I accept the wife’s credit over the husband’s. In relation to the wife’s evidence about the incident in November 2005 I found the way she gave her evidence more compelling and her version of those events more inherently likely than the way the husband gave evidence about these matters. There is some other objective evidence that would support the finding that there had been a systemic pattern of family violence during the parties’ cohabitation. The most important piece of that information is contained in the report of Dr F.
Dr F’s report contains a number of statements that corroborate the wife’s version of events in relation to alleged violence committed by the husband during the marriage. At paragraph 30, Dr F states:
[S] reported that his father was “very physical with me and Mum” and that he would step in when his father was hitting his mother. He believes his father has “mental issues” and that “his reasoning is not normal”. He described being kept “hostage” by him in the marital home with his mother when his father locked them in the bathroom and remembers sleeping in the car with his mother and sister because they had left the house to get away from him. He said that his father is “really aggressive when he drinks but even when he doesn’t drink he’s very moody”. He said that his father has broken into their home and it is for that reason that he sleeps with a knife under his pillow. He feels that he has to protect his mother and sister.
The fact that S would sleep with a knife under his pillow is compelling evidence as to the level of family violence he experienced growing up.
The husband has, of course, been convicted of breach of an AVO.
The husband on a number of occasions made allegations that the wife was having affairs with her teenage son’s friends and that she was having a lesbian relationship. It is not controversial that the husband had sent letters to the wife’s neighbours telling them that she was a lesbian “because they need to know what they are living near.” The husband indicated to Dr F that he had seen the wife in a motor vehicle with one of S’s friends and has seen cars parked out the front of the wife’s home and believes that those cars belong to the wife’s teenage lovers. Dr F in her report records that he told her, “I’ve seen [the wife] with the boys. I have seen a car parked outside the house when [S] wasn’t home” and “I have seen her in a car with him (teenage boy).”
I find that these allegations made by the husband are without substance and are in fact fabricated. This behaviour by the husband is indicative of obsessive behaviour, which is part of the family violence alleged by the wife. I find that the husband deliberately set out to publicly denigrate and destroy the wife’s character.
As I said at the commencement of this discussion, it is not necessary in order to determine the applications before me to make detailed findings about the more serious allegations about family violence made by the wife. It is sufficient to conclude that there has been over a long period of time a pattern of family violence perpetrated by the husband against the wife.
One effect of that long pattern of family violence may be in this case that the wife has to some degree been desensitised to the effect that the husband’s behaviour may have on N in the future. I agree with Dr F’s comment that the wife is under-protective of N and minimises the risk that the husband poses to N. The husband may be using N to gain information about the wife and whilst it does not appear that the husband has denigrated the wife to N at this point, he has done so to S and other people and it may be that he will do the same with N when she is older.
ADDITIONAL CONSIDERATIONS
Views
N did not indicate to the report writer that she was cognisant in any significant way over the history of the family violence.
As Dr F has said, the dilemma in this matter is that N is expressing a clear wish to spend time with her father for holidays and on an overnight basis despite the husband’s past and present disturbing behaviour. There is a dispute between the parties about how much time the husband spent with N when she was a young child but I accept that there is an important attachment between N and her father. Dr F opines that N is likely to form a sense of loss if separated from her father for long periods of time. I find, however, that spending significant amounts of time with her father poses a risk to N’s safety and I accept Dr F’s opinion that spending significant amounts of time with her father also introduces a risk that N might develop significant emotional problems. I find that in this case it is N’s needs rather than her expressed views that are the more weighty matter, which will determine the outcome of how much time N spends with her father.
Relationships
I find that N’s primary attachment is strongly with her mother. She however also has an attachment to her father, which I referred to above.
N’s other most significant relationship is with her brother S. She is very close to him and looks up to him. Dr F reported that N described many activities that they do together, including cooking and N being the only one that S will allow to go to his soccer matches.
S is totally estranged from his father. It is clear however from Dr F’s report that despite his difficulties with his father, S did not exhibit any anger towards him. Rather, he expressed concern about his father’s mental health. Dr F also expressed concern about the husband’s mental health. It is clear that S finds his father threatening and unpredictable. Dr F concluded that S himself might also underestimate the risk that the husband poses to N. Having said that, clearly S’s relationship with N has protective benefits for her.
The husband did not express to Dr F any regret about the fact that he had lost his relationship with S. He told Dr F that he did not have relationships with any of his six brothers and sisters or any other family members. The husband seems to have an inability to establish and maintain relationships. He said to Dr F that “this is why it is ‘so important for me and [N] to be together.’”
Willingness of the parents to facilitate relationships and maintain the child
I have already indicated that I accept Dr F’s comment that the wife, if anything, is under-protective in the face of the history of family violence in this matter. The wife, in my view, has rightly concluded that it is not in N’s best interest for her to spend extended time with the husband and has rightly taken the position that telephone contact between N and her father should be defined. I detected no unwillingness on behalf of the wife to foster a relationship between N and her father. The wife is likely to promote a positive image of the husband and her actions to date give me comfort to conclude that she will comply with any order the Court makes in relation to N spending time with her father. The husband’s ability to foster N’s relationship with her mother is less certain. N reported to Dr F that her father “asks me stuff about mummy all the time” and “he asks me for my pocket money and I give it to him.” When the wife was before me on 1 May 2009 the husband had adopted the practice of attending N’s school on an almost daily basis and examining her lunch box. I made an order, pending further order, to stop that behaviour happening and that order will be continued on a final basis.
Effect of Change
The amount of time N spends with her father at the moment will more or less continue under the orders sought by the wife and so this is not a matter to which any weight needs to be given.
Difficulty and expense of time and communication
This does not seem to be a matter that attracts any significant attention in this case.
Capacity to provide for the child’s needs and attitude to the child and to the responsibilities as parent
There is no question that the wife has the capacity to provide for N’s needs.
On the other hand Dr F raises significant questions about the husband’s capacity to cater for N’s needs. When the family report was originally done the husband proposed that N live with him during the week and spend weekends with her mother. He actually said to Dr F that he did not feel that N would miss her mother or her brother. That, in my view, shows significant lack of insight by the husband as to N’s needs and calls into question his parenting capacity.
The husband admitted to Dr F that he spent very little time caring for N on his own since separation and there have been significant periods since separation when N has been with her father when Ms BM has been present to assist. Ms BM is no longer available to the husband for that purpose.
The husband’s strong focus on the conduct and activities of his ex-wife and his knowledge of activities which take place around her home despite there being an AVO in place, combined with his general lack of insight, suggests that his capacity to change his behaviour is limited in the future.
Family Violence and Family Violence Orders
I have already discussed in some detail above, allegations and findings in relation to family violence. Whilst there has been a family violence order (and in fact the husband has been convicted of breaching it) there is currently no family violence order.
Order least likely to lead to further proceedings
This is not a significant matter for me to consider in this case.
Other relevant fact or circumstance
There is no other matter that I need to take into account in order to determine what is in N’s best interest.
CONSIDERATION OF TIME
Neither parent is suggesting in this case that there should be equal time or substantial and significant time. The facts of this case would not warrant a positive consideration in that regard. The presumption does not apply as it is reasonable in this case, to believe that a parent is engaged in family violence.
PARENTAL RESPONSIBILITY
The husband wishes to be involved in decisions relating to N’s education. There is a complete absence of communication between the parents at the current time. The cause of that lack of communication is the long history of family violence. Any order that would require the wife to engage in a joint decision-making process with the husband would, in my view, put her at risk of being exposed to family violence in the future if she was forced to enter into that communication. Certainly Dr F had grave reservations about any order for equal shared parental responsibility in this matter and I share those reservations.
I propose to make an order that the wife before implementing any major decision in relation to N’s education inform the husband as to what she intends to do and seek his opinion if he wishes to give it in relation to the proposed course before she takes that decision on a final basis. That order, however, does not mean that the wife, having heard what the husband’s views might be about a particular matter, cannot then proceed to take whatever decision she wishes in relation to N’s education.
In relation to other matters of parental responsibility the husband conceded sole parental responsibility to the wife.
PROPOSED PARENTING ORDERS
I conclude in this case it is in N’s best interests to make most of the orders as sought by the wife.
The wife sought an order that within 28 days of the conclusion of the hearing, the husband seek a referral from his general practitioner to a psychiatrist and undergo a consultation with that psychiatrist and to comply with any consequent recommendations.
Whilst I share Dr F’s concerns in relation to the husband’s mental status, I conclude that it would be of little utility to make the order sought by the wife. This would open up possible future litigation. That would not be in N’s best interests, particularly given the limited scope of the order for face-to-face time between N and her father.
APPROACH TAKEN TO ALTERATION OF PROPERTY
In this matter my task is to:
108.1.Identify and value the property, assets, financial resources and liabilities of the parties;
108.2.Identify relevant contributions and assess them;
108.3.Consider relevant matters referred to in Section 79(4)(d) – (g) FLA;
108.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.
Both parties agreed that I should adopt a global approach and both parties accepted that the superannuation should be treated as an asset in one pool of assets on the balance sheet.
The superannuation assets of the parties are contained in a self managed superannuation fund of which they are the trustees. The assets in the superannuation fund consist of an investment in a Macquarie investment management account.
BALANCE SHEET
The identity of the assets and liabilities and the amounts are agreed except for an add back, requested by the wife, arising out of the proceeds of a sale of the motor vehicle by the husband. The husband says that he received $1,000 in cash as a result of the sale of the motor vehicle. In a financial statement that he filed prior to the sale, he estimated that the value of the motor vehicle was $5,000 and that was the figure adopted by the wife. The husband did not adequately explain why it was the value of the motor vehicle had dropped from $5,000 to $1,000. He had no documentation to support the proposition that he had received $1,000 in cash for the motor vehicle. His sworn evidence was he signed over the registration papers to the new owner and received $1,000 in cash. I think the safer course is to rely upon his earlier sworn estimate that the motor vehicle was worth $5,000.
The parties indicated that they were also going to update the value of the NRMA shares but that did not happen. The most recent estimate I had as to the value of those shares was $1,000 and that is the figure that I will adopt.
The debt owed by the wife to the Australian Taxation Office as at 24 August 2007 is in the sum of $22,291. It does not take into account any interest that may have been generated on that debt since August 2007 nor does it include monies that the wife says the Tax Office has retained from her tax refund (which she estimated to be in the approximate sum of $6,000 from tax on post separation personal exertion earnings). It is appropriate to allow on the balance sheet the wife’s tax debt in the sum of $22,291.00.
Apart from the above, all the other matters on the balance sheet are agreed and therefore the balance sheet is as follows:-
Ownership
Description
Value
Assets
1.
Wife
L property
$350,000.00
2.
Wife
G property
450,000.00
3.
Wife
1996 Toyota Celica
5,000.00
4.
Wife
Contents of L property
10,000.00
5.
Joint
NRMA shares (204)
1,000.00
6.
Husband
Add back for proceeds of sale of car
5,000.00
Superannuation
7.
Joint
Sceterra family superannuation fund
$78,609.70
Total Assets
$899,609.00
Liabilities
8.
Wife
Mortgage – L property
$264,558.00
9.
Wife
Mortgage – G property
435,175.00
10.
Wife
New Zealand property judgment debt
26,985.00
11.
Wife
Debt to the Australian Tax Office
22,291.00
Total Liabilities
$749,009.00
TOTAL NET ASSETS
$150,600.00
THE POSITION OF EACH PARTY
Husband
The husband submits that contributions should be assessed as being 50/50 and that there should be no further adjustment for s 79(4)(d) - (g) matters. Consequently overall, the husband is seeking an even division of the net assets of the parties.
Wife
The wife’s position is that although contributions are conceded as being even to the date that she now asserts as the date of separation (1 January 2004), that at that time there was an informal property settlement between the parties where the parties evenly divided their assets (apart from superannuation). Her case is that what is left of the asset pool represents the respective actions of the parties after that informal property division. The husband has basically lost what he received. The wife has maintained some of what she had. She argues that a just and equitable outcome would be a conclusion that she should, on the basis of contributions, retain the whole of what is left. If that finding is made then there is no further property from which to make an adjustment pursuant to s 79(4)(d) - (g). However, if I make a different determination in relation to contributions the wife would argue that there should be some (unspecified) s 79(4)(d) - (g) adjustment in the wife’s favour.
The wife formally seeks orders that are set out by her in her amended response filed 18 September 2008. The wife concedes however that order 4 cannot be made in the terms sought in that response. In the form sought it is not a splitting order and would be in breach of the SIS Regulations. I was not provided with any evidence as to the current respective positions of the parties’ members accounts in the superannuation account. The parties agreed that given that that was so, the appropriate approach would be to make two splitting orders achieving a result that one party received a certain percentage of the superannuation fund and the other party received another percentage (the husband sought that that percentage be 50 percent and the wife sought that she receive 100 percent of the fund).
CONTRIBUTIONS
The hearing of the property matter proceeded on the basis that the parties agreed that contributions were equal up until the date of separation, with the wife’s concession being based on the court accepting her assertion that the date of separation was 1 January 2004. I have accepted the wife’s evidence about the date of separation.
On balance there is a probability that the husband received some payment for the sale of the business for which he had originally paid $40,000.00 that was not reflected on the contract for the sale of the M property and in respect of which the husband has not made a full financial disclosure.
I do not accept the husband’s evidence about what happened with the balance of the deposit monies paid by the purchaser of the M property. I accept the wife’s statement that she received by way of incremental payments a total of about $100,000 from the proceeds of the sale of the M property. I find the husband had access to the balance of it, including access to monies received from the balance of the deposit monies.
On 29 December 2005 the parties signed a hand-written agreement. That document is exhibit D. That document recites that there had already been a division of assets and neither party has a “right to share any of each other asset or finance”. The agreement records that there was one property and the superannuation which was at that time still in joint names. The L property was in the name of the wife and the agreement recorded her as sole owner. The agreement sets out the terms of the continued occupancy under the one roof for the husband in the L property, including payments that he was expected to make whilst he was there. The agreement further recorded that the contents of L property would be the wife’s apart from a camera, a motorbike and the husband’s clothing and that the husband is to retain the four-wheel drive.
There was a further document signed by the parties and witnessed by a Justice of the Peace on 7 February 2006. This document is also part of exhibit D. There is an agreement that the previous agreement was to be typed and signed before a Justice of the Peace without any changes. There is no indication that that happened. The further document of 7 February 2006 does not affect in any significant way the agreement previously reached by the parties.
Counsel for the wife did not make a submission that I was bound to accept the agreement reached in 2005 as being an agreement which was otherwise just and equitable but that I would make that finding in any event based on the overall facts of the case. The husband conceded in oral evidence that the documents had his signatures on them and that the parties had gone to a court house and had the second document witnessed by a Justice of the Peace at the court house. It is clear that these were documents that the wife required the husband to sign in order for her to agree to the husband living in the L property. The husband says that the document is tainted by some form of duress (using that word in its most general and non legal sense) or undue influence. I find the husband was not in any way intimidated by the wife. I conclude that at the time these documents were entered into, the documents reflected the then agreement between the parties as to what should happen in terms of their financial positions.
The husband has in my view not accounted for monies that he obtained after the separation.
The husband said he was not actually the person who forged the wife’s signature on the children’s scholarship accounts.
Even if that was so, and I have found it is not, on the husband’s version he was complicit in the forging of the document and the removal of monies from the scholarship account without the wife’s consent.
There are records in evidence that indicate that a lump sum of $13,000 came into the husband’s control as a result of the embezzlement. That money was then taken out through ATM machines at L and also at Star City in cash. I find on balance that the husband has been less than frank about what he did with those monies. I take into account the husband’s evidence about the amount of time he spent at the casino. On balance I am confident that the husband wasted those monies on gambling activities. A similar thing can be said about the lack of attendance by the husband in respect of mortgage payments in relation to the Y and A properties. I accept on the evidence that the husband should have had adequate monies to make repayments in respect of those properties arising from rents received from those respective properties and monies that the wife paid up until at least August 2006 ($1,000 a month). Again, I do not accept the husband has been candid in relation to admitting the real reason as to why he was unable to maintain payments on those two properties and I conclude that monies that he otherwise had to make payments were wasted by him on gambling activities.
Looking at the history of what has happened since the beginning of 2004, I conclude that the husband has, through his behaviour, substantially wasted significant amounts of monies in respect of the non superannuation assets.
What is left is a result of the wife’s careful management of her financial position since separation. That management of course has been aided by the fact that the wife has continued to involve herself in full time employment. Since 2004 the wife has had, almost exclusively, the responsibility for the financial wellbeing of N.
This was a 16 year marriage. The parties agree that in the first 16 years contributions to the development of the assets were equal. At the date of the conclusion of the evidence, there had been five and a half years contributions which heavily favour the wife since January 2004. At around about the time of the separation however, the parties split what they had at that time. I am comfortably satisfied that the husband received at least half the benefit of those funds at that time (excluding the monies that were in the superannuation fund).
Making an assessment of contributions on a global basis, I conclude that the wife should receive 85 percent of the current assets (including superannuation) and the husband 15 percent of those assets.
SECTION 79(4)(d) - (g) MATTERS
The husband is currently unemployed. He has not worked since the separation. In a financial questionnaire which was filed by him on 4 January 2008, he said that he is not in paid employment or self employment because “I was very much heart broken and upset about all the mess happened between us unexpectedly”. The husband has used the breakdown of his marriage five and a half years ago as an excuse not to work since that time. Prior to that time the husband had extensive experience in the banking industry, both in India and in Australia. He had experience in the security industry. I accept that his criminal conviction may make it difficult for him to obtain re-employment in either of those industries. He has, however, a qualification in financial management and has recently completed two courses designed at improving his skills in managing his own business. He has previously managed his own business for three years and has skills both in book work and cooking. I have no doubt, given the range of experience the husband has, that he could find employment should he so choose and earn an income which would be sufficient to support himself or otherwise involve himself in some business activity which would similarly provide an earning capacity sufficient to support himself.
The wife has been in stable employment for 15 years. She is currently employed at a school on an income of $78,600 per annum. The husband has not made any significant payment of child support since the date of separation and I find, on balance that it is probable, based on the past history that into the future the wife will have difficulty obtaining child support for N from the husband. N is currently 10 years of age and the wife’s obligations to N can be expected to continue for another eight years at least. The wife also continues to have S at home and although he is currently over the age of 18, he is still a student and the wife is still providing support to him as a member of her household.
I take into account the fact that the wife will receive the majority of the assets based on my contribution findings.
I also take into account the fact that the assets themselves are not large.
Conclusion on s 79(4)(d) - (g) matters
Had it not been for the contribution findings I have found in favour of the wife, I would have been minded to give to her some adjustment under s 79(4)(d) - (g). However, given the contribution findings that have been made in favour of the wife and the disparity in assets which that creates, I do not think it is appropriate to make any further adjustment.
JUST AND EQUITABLE
The question is whether or not orders should be styled so that the wife needs to borrow further funds to make a payment to the husband.
I have reached the conclusion that that would be an impost upon the wife that is not warranted. The assets can be adjusted on the basis that the husband receive a proportion of the superannuation fund.
I am mindful of the fact that that means that the husband will not have any immediate capital but it also means that no further strain is placed upon the wife in respect of servicing debt. The wife continues to be responsible, as part of the overall distribution of the assets and liabilities, for the parties’ joint responsibility arising out of the unsuccessful New Zealand property venture.
Based on my findings about contributions and s 79(4)(d) – (g) matters there would be an 85/15 percent of distribution of assets. That distribution of assets could be achieved in the following manner:
| H gets 15.0% | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 5 | NRMA shares (204) | 50% | $500 |
| 6 | Add back for proceeds of sale of car | 100% | $5,000 |
| 7 | Sceterra Family Superannuation Fund | 21.7% | $17,090 |
| Net Assets | $22,590 | ||
| Wife gets 85% | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 1 | L property | 100% | $350,000 |
| 2 | G property | 100% | $450,000 |
| 3 | 1996 Toyota Celica | 100% | $5000 |
| 4 | Contents of L property | 100% | $10,000 |
| 5 | NRMA shares (204) | 50% | $500 |
| 7 | Sceterra Family Superannuation Fund | 78.3% | $61,519 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 8 | Mortgage – L property | 100% | $264,558 |
| 9 | Mortgage – G property | 100% | $435,175 |
| 10 | New Zealand property judgment debt | 100% | $26,985 |
| 11 | Debt to the ATO | 100% | $22,291 |
| Net Assets | $128,010 | ||
Standing back, I find that that is a just and equitable distribution of assets between parties.
PROPOSED PROPERTY ORDERS
In relation to the superannuation fund, a splitting order will be made on a percentage basis in relation to the superannuation interest each party has in the Sceterra Family Superannuation Fund.
The percentage amount the husband should retain in that fund is 21.7 percent (or $17,090.00 as at date of hearing but may be more now). As I have earlier said, I am unaware as to what amounts each party has standing to their credit in their respective member’s accounts in the superannuation fund. In those circumstances, in order to achieve a 21.7 percent split to the husband, I will order that the wife give 21.7 percent of her interest in the fund to the husband and the husband give 78.3 percent of his interest in the fund to the wife. That will ensure that no matter what the member’s accounts are, the husband will receive 21.7 percent of the fund and the wife will receive 78.3 percent of the fund.
PASSPORT
On 24 June 2008 an interim order was made that the wife deposit with the Registrar of the Family Court of Australia at Sydney, N’s passport and leave it deposited with the Registrar until further order of the court. Although this matter was not raised during the hearing, it seems to me appropriate to discharge that order as part of the final orders that are made in this matter and I will do that.
I certify that the preceding one hundred and forty four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
Associate:
Date: 21 January 2010
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Injunction
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Costs
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Jurisdiction
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