SCHWARTZ & JERALD
[2019] FCCA 1171
•26 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SCHWARTZ & JERALD | [2019] FCCA 1171 |
| Catchwords: FAMILY LAW – Property – division of property after 5 year relationship – where the applicant brought in greater contributions – parties adopted traditional roles – just and equitable orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 65AA, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65DAA, 65DAA(3), 65DAA(5), Part VIIIAB, 90SM(4)(a), 90SM(4)(b), 90SAM(4)(c), 90SF(3), 90SM(4)(e), 90SM(4)(d), 90SM(4)(f), 90SM(4)(g), 90SM(3), 90SM(4) |
| Cases cited: Adamson & Adamson (2014) FLC 93-622 Biltoft (1995) FLC 92-614 Goode & Goode (2006) FLC 93-286 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 |
| Applicant: | MR SCHWARTZ |
| Respondent: | MS JERALD |
| File Number: | NCC 141 of 2016 |
| Judgment of: | Judge Betts |
| Hearing dates: | 8, 9 & 10 August 2018 6 & 7 December 2018 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 26 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boyd |
| Solicitors for the Applicant: | Kilpatrick Hatton |
| Counsel for the Respondent: | Mr Kenny |
| Solicitors for the Respondent: | King Cain Solicitors |
ORDERS
PARENTING:
That all previous parenting orders be discharged.
The parents have equal shared parental responsibility for the major long-term issues of the children [Y] born … 2011, [Z] born … 2012 and [X] born … 2014 (“the children”).
That the children live with the Mother.
That the Mother be at liberty to relocate with the children to the Town S region.
That unless otherwise agreed in writing between the parents, the children are to spend time with the Father as follows:
During school terms, when the parents are living within one hundred (100) kilometres of each other:
(a)each alternate weekend from conclusion of school (or 3pm) Friday until commencement of school (or 8.30am) on the following Wednesday.
During school terms, when the parents are living more than one hundred (100) kilometres apart:
(b)on the second weekend of each calendar month from conclusion of school (or 3.00pm) Friday until commencement of school (or 8.30am) Monday with the Father not to take the children further than one hundred (100) kilometres away from the Mother’s home;
(c)on the fourth weekend of each calendar month from conclusion of school (or 3.00pm) Friday until 3.00pm Sunday if he is taking the children further than one hundred (100) kilometres away from the Mother’s home, or concluding at commencement of school (or 8.30am) Monday if he is not doing so;
(d)at any other reasonable time should the Father be in the same locality, provided that he gives the Mother at least fourteen (14) days notice in advance.
Notwithstanding any other orders:
School holiday periods:
(a)In even numbered years, the children are to spend the first half of each of these holiday periods with the Mother and the second half with the Father;
(b)In odd numbered years, the children are to spend the first half of each of these holiday periods with the Father and the second half with the Mother;
(c)Each of these holiday periods is deemed to commence at conclusion of school (or 3.00pm) on the last day that the children are required to attend school for the term. The mid-point of each of the shorter holiday periods is deemed to be 12 noon on the middle Saturday. The mid-point of the end of term 4 school holiday periods is deemed to be 12 noon on 5 January. The holiday periods are each deemed to conclude at 12 noon on the last Sunday prior to recommencement of school;
Christmas Eve / Christmas Day / Boxing Day:
(d)In even numbered years, the children are to spend time with the Father from 4pm Christmas Day until 4pm Boxing Day, NOTING THAT the children will be with the Mother for the first half of such holiday period including Christmas Day. This order only applies if both parents are in the same locality at Christmas and does not oblige the Mother to travel to the Father;
(e)In odd numbered years, the children are to spend time with the Mother from 4pm Christmas Day until 4pm Boxing Day, NOTING THAT the children will be with the Father for the first half of such holiday period including Christmas Day. This order only applies if both parents are in the same locality at Christmas and does not oblige the Father to travel to the Mother;
Father’s Day weekend:
(f)If Father’s Day does not fall on the Father’s usual weekend time with the children pursuant to these orders, then the Father is entitled to spend that weekend with the children as though it falls within order (5)(a), (5)(b) or (5)(c) as applicable.
Mother’s Day weekend:
(g)The Father’s usual weekend time with the children pursuant to these orders is suspended on the Mother’s Day weekend.
Father’s birthday:
(h)Provided he is in the same locality as the children, the Father may spend time with the children on his birthday from conclusion of school (or 3.00pm) if a school day until commencement of school (or 9.00am) the next day. If the birthday falls on a weekend, then the Father may spend time with the children from 9.00am until commencement of school (or 9.00am) the next day.
Mother’s birthday:
(i)The Father’s time with the children is suspended on the Mother’s birthday from conclusion of school (or 3.00pm) if a school day until commencement of school (or 9.00am) the next day. If the birthday falls on a weekend, then the Mother may spend time with the children from 9.00am until commencement of school (or 9.00am) the next day.
Children’s birthdays:
(j)If the parents are in the same locality, then the parent who would not otherwise spend time with the children on any of the children’s birthdays is to spend time with them from after school (or 3.00pm) until 6.00pm if a school day or from 12 noon until 6.00pm if a non-school day.
On school days, handovers are to occur at the children’s schools and otherwise handovers are to occur at the Mother’s home, except in the case of weekend handovers at 3.00pm Sunday pursuant to order (5)(c) where the Mother is to collect the children from the Father’s home, or from such other agreed location which is no further away from the Mother’s home.
The parties may each attend any extra-curricular or school activities engaged in by the children, subject to the policy of the school or service provider.
Each parent may communicate with the children by telephone at all reasonable times.
Each party is to keep the other party informed in writing of their residential address, contact telephone numbers (including a mobile number and landline if applicable) and email address. Any change in such details is to be advised within three (3) days.
That each party is to immediately inform the other in the event of the children being hospitalised, or involved in any emergency.
At handover, each party is to provide the other with:
(a)any prescription medication which is being taken by the children, including details as to the reason for the medication and the appropriate dosage;
(b)any toys or personal belongings of the children that were brought with the children when they came into that party’s care.
That the parents be at liberty to provide a copy of these orders to any school/s or preschool/s attended by the children. These orders authorise the school/preschool to provide both parents with copies of school reports and any other reports on school progress and behavioural issues and other school circulars and information (including school photograph order forms) normally provided to parents.
That each parent authorise any treating Medical Practitioner, Speech Therapist, Physiotherapist, or any other Health Care Worker to provide to the other parent all particulars relating to the children’s medical condition, prognosis or treatment.
That pursuant to section 68B of the Family Law Act, each parent be restrained from, while in the presence or hearing of the children:
(a)denigrating the other parent;
(b)denigrating members of the other parent’s family;
(c)denigrating the other parent’s partner or friends; or
(d)permitting any other person to engage in such denigration.
That each parent is at liberty to take the children on overseas holidays once the youngest child attains the age of 5 years provided that:
(a)At least 42 days notice is provided to the non-travelling parent ;
(b)At least 28 days prior to travel the travelling parent shall provide a full itinerary, including copy of return flights and accommodation details and contact phone numbers to the non-travelling parent;
(c)The travel shall not exceed more than 14 days unless otherwise agreed between the parties;
(d)The non-travelling parent shall be afforded make up time with the children as agreed;
(e)The parties shall not travel to any country which is not a signatory to the Hague Convention or International Child Abduction unless otherwise agreed between the parties.
PROPERTY:
That within seven (7) days of the date of these orders, the funds held in Kilpatrick Hatton Solicitor’s Trust Account representing the balance of the proceeds of sale of the properties situated at Street G, Suburb H and Street E, Suburb F be paid as to one hundred and sixty thousand dollars ($160,000) to the Wife and the balance (including any interest that may have accrued) to the Husband.
That in accordance with section 90XT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of Mr Schwartz from his interest in Super Fund J:
(a)Ms Jerald is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $61,285.00; and
(b)Mr Schwartz’s entitlement to payment out of their interest in Super Fund J, and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.
That the trustee of Super Fund J (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for Ms Jerald by order 17 of these orders; and
(b)Pay the entitlement whenever the Trustee makes a splittable payment out of Mr Schwartz’s interest in Super Fund J.
That orders 17 and 18 have effect from the operative time and the operative time for these orders is four (4) business days after the service of a certified copy of the orders on the Trustee.
That orders 17, 18 and 19 bind the Trustee of Super Fund J.
That the Husband indemnify the Wife in relation to any liabilities owed to Ms C and to Mr B.
That unless otherwise specified in these orders:
(a)Each party shall be solely entitled, to the exclusion of the other, to all property in the possession of such party as at the date of these orders including any real estate, jewellery, furniture, furnishings, shares, motor vehicles and superannuation;
(b)Moneys standing to the credit of either party in any bank account/s is to be the property of the party in whose name such bank account is held;
(c)Each party shall be solely liable for, and indemnify the other party in respect of, any liability in that party’s name or encumbering any item of property to which that party is entitled pursuant to these orders.
Each party shall, within seven (7) days of a request to do so, do all acts and things that are reasonably required of that party in order to give effect to the provisions of these orders. If either party refuses or neglects to do so, then the Registrar of the Newcastle Registry of the Family Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to sign or execute such documents on behalf of the defaulting party upon filing of an affidavit by a solicitor on behalf of the requesting party deposing to the said neglect or refusal.
IT IS NOTED that publication of this judgment under the pseudonym Schwartz & Jerald is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 141 of 2016
| MR SCHWARTZ |
Applicant
And
| MS JERALD |
Respondent
REASONS FOR JUDGMENT
Background:
These are parenting and property settlement proceedings arising from the breakdown of the de facto relationship between Mr Schwartz (“the husband”) and Ms Jerald (“the wife”).
The husband and wife commenced cohabitation in the Town S region in late 2010. They separated in December 2015 by which time they were living at Town A.
There are three (3) children of the relationship:
(a)[Y] born … 2011, who is presently 8 years and almost 5 months of age (“[Y]”);
(b)[Z] born … 2012, who is presently 7 years and 2 months of age (“[Z]”); and
(c)[X] born … 2014, who is presently 5 years and 3 months of age (“[X]”).
Throughout their relationship, the parties adopted “traditional” roles. The husband was the breadwinner, working as a professional with the Employer M. The wife was the primary homemaker and parent.
The nature of the husband’s work meant that the parties moved towns on a number of occasions. For the most part they either lived in the Town S area, or in the Town A area.
The wife instigated the separation at a time when the husband was away for work. She packed up the children and unilaterally relocated with them from Town A back to Town S, which is her home and where she has family support. The husband objected, promptly instituting these proceedings in January 2016.
Pursuant to interim orders in March 2016, the wife was ordered to return the children to the Town A area which she did. She has since remained living with them in Town A, rather unhappily. The children have remained in her primary care, but have spent substantial and significant time with the husband for four (4) nights each fortnight during school terms and for about half of each of the school holiday periods.
While the parties agree that they should have equal shared parental responsibility for the children, they are “poles apart” in terms of what the children’s living arrangements should be.
The husband seeks that the children remain living in the Town A / Town T region and that he spend equal time with them.
The wife seeks to relocate with the children back to Town S, and that the husband spend time with the children on weekends and holidays. She conceded that she would not relocate to Town S without the children.
Each party’s “fallback” position was that the wife remains primary carer of the children – but in the Town A / Town T region - and that the husband continue to spend substantial and significant time with the children.
The parties are also unable to agree as to what would constitute a “just and equitable” property division.
The trial:
The trial was originally listed for three (3) days however it ended up occupying five (5). It ultimately concluded on 8 December 2018 at which time judgment was reserved.[1]
At trial, the husband relied upon the following documents and evidence:
(a)Third Amended Initiating Application filed 11 July 2018;
(b)Husband’s Trial Affidavit filed 11 July 2018 (supplemented by some updating oral evidence-in-chief when the trial resumed in December);
(c)Husband’s updated Financial Statement filed 11 July 2018;
(d)Affidavit of the husband’s partner Ms N filed 13 July 2018;
(e)Affidavit of the husband’s mother Ms C filed 13 July 2018;
(f)Affidavit of the husband’s brother Mr B filed 13 July 2018;
(g)Case Outline Document filed 7 August 2018.
The wife relied upon the following documents and evidence:
(a)Amended Response filed 17 March 2016;
(b)Wife’s Trial Affidavit filed 13 July 2018;
(c)Wife’s updated Financial Statement filed 13 July 2018;
(d)Affidavit of the wife’s mother Ms K filed 13 July 2018;
(e)Case Outline Document filed 7 August 2018.
Various documents were tendered as exhibits in the course of the trial. The Family Report of Family Consultant Ms O dated 29 July 2016 and her Addendum Report (children’s interview) dated 20 August 2018 were both marked as exhibits.[2]
[2] Family Report is exhibit “C1” and Addendum Report is exhibit “C2”
In arriving at a decision in this case, I have had regard to all of the above material, as well as to the oral evidence and submissions of each party’s counsel.
Some observations of the witnesses:
At trial, there were a number of significant factual and credit issues. I will therefore start by making some observations as to the evidence of the witnesses.
The husband:
As the applicant, the husband was the first witness.
It was quite apparent to me that he is a devoted and loving father to the children; he is an active father who wants very much to be involved in their lives. He has shown particular dedication in visiting them at times when they have been geographically separated.
The husband’s dedication to his children is exemplified by his regular visits to Country W to maintain his relationship with his fourteen (14) year old daughter, [L], whose mother returned there after she and the husband separated.
As a father, the husband has much to offer the children. But as a witness I found his evidence to be unsatisfactory in many respects.
A significant credibility issue arose in relation to his resignation from Employer M in … 2017. By way of background, his trial affidavit[3] he deposed that he had been apprehended for drink driving, that his licence had been temporarily suspended for a few weeks, and that the Local Court had later dismissed the charge conditional upon him entering into a good behaviour bond. He later resigned from the Employer M, explaining in his affidavit that his resignation followed them reprimanding him about the matter. In his own words, he “felt unhappy about how I was dealt. There was a restructure in process and the loss of jobs in the company has become a public issue. After discussions with work colleagues I tendered my resignation.”
[3] Paragraphs 57 – 59 inclusive
In cross-examination the true circumstances surrounding his resignation were shown to be much more dramatic. The husband admitted he had never told Employer M about the charge, instead continuing to drive their work vehicles while his licence was suspended. In the leadup to his Local Court appearance, he then forged a reference from his then manager at Employer M, which falsely stated that Employer M were aware of the charge and had been able to accommodate the husband’s driving restrictions.
Employer M only found out about the forged reference by accident, the husband having left a copy of it on the work printer. They commenced a formal investigation into the husband’s actions. In the course of that investigation he was interviewed.[4] In that interview he said he had not tendered the forged reference to the Local Court. He explained that he’d decided instead to be “open and honest with the court”.
[4] His misconduct interview of 6/2/17 was exhibit “W1”
Employer M ultimately found him guilty of misconduct. He was given no real choice – resign (and be given a reference) or have his employment terminated. Sensibly, he chose to resign.
The husband had in fact tendered the forged reference to the Local Court. He also falsely asserted to the Local Court that he hadn’t driven a motor vehicle during the suspension period when clearly he did.
The husband also gave three (3) different versions as to why he was drink driving in the first place. Each version was “tailored” to its intended audience. To the Employer M he said he was driving on his way home. He told the Local Court Magistrate he was on his way to Sydney, having been unexpectedly called to help care for his then partner’s sick children. He told me that it was his driving to help care for his partner’s sister’s sick children in Sydney. How he ended up in Town U as part of that journey to Sydney was a detour that was hard to understand no matter which version of events was true.
But to me, what is most telling is the extent to which the husband was willing to lie and deceive others rather than face up to his actions. This included forging a document for court purposes – a rather dramatic and unhappy finding for his credibility in this litigation. While I accept that the husband was emotionally upset around the time of these events, I do not regard his emotional state at that time as being a complete explanation for his dishonesty.
Though undoubtedly the most spectacular, the above example was in fact just one of a number of instances in which the husband gave patently unreliable evidence or otherwise dissembled in the witness box.
For instance, it was common ground that the husband never told the wife about his licence suspension (being the period from 11 November 2016 to 19 December 2016) nor did his affidavit filed at that time in these proceedings make any mention of it.
The wife’s evidence is that the husband in fact continued to pick the children up in his car during that period as usual. The wife’s version was logical given the husband’s clear desire to conceal his licence suspension from her (and from his employer). Yet when asked about it, the husband would only admit to one occasion of driving the children while his licence was suspended – he said that he picked up the children from the wife on that occasion while his friend Mr V (from Town S) waited around the corner to swap drivers with him.
While I am willing to accept that this event with “Mr V” may have occurred, I am comfortably satisfied that there were a number of occasions when the husband drove to or from handovers while his licence was suspended.
Another notable example of the husband dissembling was in relation to annexure “T” to the wife’s trial affidavit – an iPhone photograph the husband took of the wife and the children in the school yard. The children can be seen looking up at the camera but the angle of the photograph cuts off the wife’s head.
I am comfortably satisfied that the husband deliberately took the photograph in this manner to annoy or upset the wife. The husband’s denials were risible. He explained that there was a large crowd in the schoolyard at the time and that he had been “bumped” just at the moment he took the photograph. Yet the photograph is quite clear and not in any way blurry. Moreover, in the two unsolicited “selfies” the husband took on her iPhone on that same occasion, the background shows a largely vacant school yard – consistent with the wife’s evidence. (The husband is adopting “cheeky” or jocular expressions in both photographs.)
He also explained that the camera was on “rapid photograph mode”. I do not accept that evidence either.
Overall, I am comfortably satisfied that on the day in question the husband was in fact being a “smart alec” towards the wife and that she did not take it particularly well. But rather than being honest about it, the husband simply dissembled.
The husband was cross-examined about the statement in paragraph 102 of his affidavit that [Y] and [Z] had complained to him that “nana hits [Z]”. The husband was suggesting that “nana” was a reference to the maternal grandmother and it was put to him that this could have been a reference to the paternal grandmother. His response was that the paternal grandmother was not called “nana” but rather “Nanny Ms C”. Notably, in the witness box when asked if the children called her “Nanny Ms C” the paternal grandmother looked a little bemused and said they called her “nana”. The husband was dissembling again.
In his Family Report interview, the father had asserted that his then employment with Employer M involved flexible hours.[5] Yet the evidence revealed that at the same time the husband was complaining to his employers about being significantly overworked.[6] He had spoken to management a couple of times because he said that the workload was too much for him.[7] When that evidence was put to him, the husband properly conceded that his work was in fact much busier than he had suggested to the Family Consultant.
[5] Exhibit “C1”, paragraph 14
[6] Exhibit “W1”, page 13
[7] Exhibit “W1”, page 18. Also see exhibit “W2” – the husband’s letter to the Local Court Magistrate
I am also satisfied that there was something of a power imbalance between the parties during the relationship, with the husband being the dominant, somewhat self-centred and at times violent and disparaging partner. For instance:
(a)The husband maintained a large degree of financial control. He would challenge and question the wife about the weekly household purchases, by reference to shopping receipts. While he said that this was purely for budgetary reasons, I do not accept that. I consider that a significant part of his doing so was in order to exert financial control – to show the wife that he was the more financially literate of the two;
(b)On his overseas trips to Country W, the husband had access to substantial funds on his credit card whereas the wife was left with a set amount of cash to live off back home. The husband said he would do a “large shop” before he left but interestingly he also said that he knew that the mother had the support of the maternal grandmother if she needed to buy basic items while he was away such as “bread and milk”. His evidence in this respect showed a glaring double standard which he was either ignorant of or otherwise unwilling to admit to. (I am satisfied that the husband’s attitude to financial matters goes some way towards explaining the wife’s decision to keep her personal injury payout moneys a secret from him, which is discussed later);
(c)From time to time the husband made comments to the wife about her clothing choices – suggesting that they were too suggestive or otherwise inappropriate. One regrettable instance was at a handover when the husband made a disparaging reference to the wife’s choice of clothing while his friend was present;[8]
(d)I am satisfied that the husband called the wife abusive or demeaning names from time to time. On occasions this included calling her “brain dead”, suggesting to her that she lacked worldly understanding and that she was a “psycho”. The verbal abuse went both ways but I am satisfied that the husband’s abuse came from a position of feeling superior to the wife – he being the older and more educated of the two. His sense of superiority was evident in the witness box and was also noted by Family Consultant Ms O;
(e)The husband admitted to pushing the wife on one occasion, causing her to fall onto the floor;
(f)While the husband denied throwing out the mother’s clocks which were of sentimental value to her, I am satisfied that he did so and that he threw away personal or sentimental items belonging to the wife on a number of occasions during the relationship. I accept the wife’s evidence that the husband disparagingly referred to her possessions as “shit”. Annexure “J” to the wife’s trial affidavit is a photograph depicting various items the wife says she retrieved from the bin after the husband had thrown them out on that particular occasion – one being a laminated photo of [Z]. Though the husband denied throwing [Z]’s photograph in the bin, I reject his evidence and accept the wife’s.
[8] Paragraph 363 of the wife’s affidavit
I also accept that the husband tipped out the contents of the wife’s handbag on one occasion when he was frustrated and that he then pushed the wife.
After the wife left the home, the husband gave away their family dogs to a dog re-housing organisation despite her telling him over the phone that she was coming back for them. He gave the dogs away in anger and then prevaricated and stalled when the wife asked him to give her the contact details for the relevant organisation so she could try to retrieve them.
The husband came across in the witness box as being generally dismissive of the wife’s complaints about children’s clothing and toy items not being returned at handovers. On one occasion he had taken a photograph of various toys piled up in the wife’s garage - but then when she challenged his actions he lied to her by saying he was photographing [Y]’s quad bike. In reality he was evidence-gathering; his actions were intrusive and deceitful.
The husband has also displayed some other controlling/dominant behaviours. He was asked about the second set of keys to the Town A rental home in which the wife and children have been residing. His evidence was that he had given one set to the wife but he claimed not to have the other set. He wasn’t aware of any requests being made for the second set of keys and said he didn’t know where the second set was. He later said he wasn’t even aware that he had two sets. Overall, his evidence was unconvincing and I am satisfied that he retained a second set of keys to the home, well knowing that the wife was unhappy about it and wanted the keys.
The husband also kept utilities bills in his name for a lengthy period, despite the wife asking him to change them over into her name. Thus he received the bills, which he then passed onto her. I accept the wife’s evidence that she has felt controlled as a result, which has contributed to her feeling unhappy in Town A.
In respect of financial matters, the husband’s evidence was also unsatisfactory in a number of respects. I will address those aspects of the evidence later.
Overall, I found the husband to be intelligent, strong-willed and devoted to his children. He is however somewhat self-centred, he considers himself to be superior to the wife and is dismissive of her concerns. He is slow to admit to any wrongdoing and has shown a willingness not only to dissemble but to positively confect evidence for court purposes.
Of course, it does not follow that I must inevitably reject the husband’s evidence to the extent that it is inconsistent with that of the wife. But I do regard the husband’s evidence with real caution; in many respects he was not a reliable witness.
Evidence of the husband’s partner Ms N:
Ms N confirmed that she and her children [AA] and [BB] have a good relationship with the husband and with the children of these proceedings.
In the witness box, Ms N did not appear to have any obvious animosity towards the wife. She conceded that the wife had done a good job bringing up the children. Any concerns she expressed about the wife swearing around the children only arose as a direct result of things the children had said to her.
Ms N agreed that she did not know the wife. Her attempts to try to talk to the wife had always been rebuffed and so Ms N decided, understandably, to leave things at that for now.
I accept Ms N’s evidence that, regrettably, the children have come to know that the wife does not like her and at times the wife has denigrated Ms N to the children or in their hearing. One such instance was in May 2018 when Ms N had overheard [X] telling [BB] that she and [AA] couldn’t come to [X] and [Z]’s combined birthday party because the wife had said that their mother (Ms N) was “a bad person.”[9]
[9] Paragraph 23 of Ms N’s affidavit
The mother’s counsel suggested to Ms N that it would have been “uncomfortable” to have had Ms N present. She agreed. However, in my view that situation did not necessarily have to be unpleasant. It was clear on this occasion that the wife was either unable or unwilling to put aside her own feelings for the children’s sake.
Overall, my impression of Ms N was that she was a reluctant witness drawn into the spotlight. She spoke slowly but confidently and I accept her evidence. She was generally an impressive witness.
Evidence of the husband’s brother Mr B:
Mr B had sworn an affidavit deposing to various loans said to have been made by him to the husband in recent years and which the husband seeks to include in the Balance Sheet.
Mr Schwartz’s evidence was not entirely satisfactory or consistent with that of the husband and I do not accept all his evidence. I will turn to the relevant aspects of his evidence in more detail later.
Evidence of the husband’s mother Ms C:
Ms C lives in Town CC but regularly moves between Melbourne, Brisbane, Town A and Town DD – being the places where her children and grandchildren live.
Her affidavit was supportive of the husband’s parenting and raised a number of concerns about the mother. She was concerned about the children swearing. She was concerned about the children making disclosures about being physically disciplined by both the mother and by the maternal grandmother.
Her affidavit deposed that the wife had slammed a screen door in her face on one occasion after separation, resulting in her suffering an abrasion to her nose. A photograph of that abrasion was annexed to her affidavit. She complained to Police about the event but did not otherwise take the matter further. Notably she was not cross-examined as to that event and I accept that it occurred as she deposes.
As to parenting issues I consider she was generally a reliable witness, albeit that her viewpoint was very much aligned with that of the husband. She looked for the faults in the wife’s parenting – and found some – while being oblivious to the husband’s faults. In that sense her evidence is of relatively limited weight.
As to financial matters, Ms C’s evidence was not entirely satisfactory or consistent with that of the husband and I do not accept all of her evidence. I will turn to the relevant aspects of her evidence in more detail later.
The wife:
The wife gave her evidence when the trial resumed in December. Like the husband, she was vigorously cross-examined.
I was left in no doubt as to her devotion to the children. She has always been their primary carer and I accept that she very much wishes to return to the Town S region with them so she can access more support. Her wishes are genuine and are not motivated by a desire to exclude the husband from the children’s lives. The letter she left behind for the husband at separation[10] spoke positively about him as a father and I accept that she values his input in the children’s lives. Since returning to Town A she has facilitated his ongoing involvement in significant events for the children and has shown some willingness to vary the parenting arrangements when asked.
[10] Exhibit “F1”
When challenged during cross-examination, the wife’s demeanour was quite different to the husband’s. Whereas he generally remained quite composed throughout, the wife had a tendency to become quite “fiery”. Her evidence was given in a straightforward and unvarnished manner.
She candidly admitted that she had verbally abused the husband at times during the relationship. When it came to verbal abuse, to use the colloquial I am satisfied that the wife had the capacity to “give as good as she got”.
The husband accused her of hitting him on one occasion with a cupboard door but the wife denied it and overall I prefer her evidence to his on that point.
Some aspects of the wife’s evidence were however unsatisfactory.
She markedly downplayed the travel difficulties created by her unilateral relocation. She would only concede that the distances involved would cause “slight” travel difficulties for the husband notwithstanding that the driving time was around 5 ½ hours without stops – so more likely 6 ½ hours if the children were in the car. I do not think that the wife was being dishonest about this, rather that she “turned a blind eye” to the practical reality. She was well used to the husband doing lots of driving with his work.
The wife legitimately criticised the husband for giving away the family dogs after separation but would not acknowledge her own contribution towards that sad outcome. She had, after all, left the dogs behind unexpectedly and the husband then had to “pick up the pieces” as it were, including caring for the dogs while working full-time.[11]
[11] In her trial affidavit the wife gave unchallenged evidence that the dogs could be hard work; they apparently had a habit of escaping out of the yard.
Like the husband, the wife also had the capacity to behave dishonestly at times.
The wife admitted for instance that she hid the fact of her personal injuries payout from the husband. She falsely told him that an uncle had bequeathed her a Motor Vehicle D when in fact she had bought it. She also paid (or repaid) some of her personal injuries moneys to her parents without informing the husband.
Like the husband I also consider the wife to be strong-willed; for instance once she made the decision not to tell him about the personal injury payout she never recanted from it. He only discovered the full truth about the payout in the course of these proceedings.
The wife was thus dishonest with the husband as to financial matters, but I do consider that her dishonesty arose as a combination of the husband’s control over the family finances and the wife’s strong will to be financially self-sufficient.
One troubling aspect of the wife’s evidence related to her family tax debt. Around the time of separation the wife notified Centrelink that she was “100%” carer of the children – thus maximising her family tax benefits. However, when she later returned to Town A she failed to notify Centrelink of the change in care arrangements. Thus Centrelink continued to pay her family tax benefits as though the children were still “100%” in her care. This was only discovered when the husband went to the Child Support Agency to follow up on child support issues after the trial had been adjourned part-heard. His inquiries with them had the unintended consequence that Centrelink reviewed their records, noted that the wife did not have 100% care of the children in FY 2016, 2017 and 2018 as they had been advised, and then levied the wife with a debt for the overpayment of family tax benefit in those years.
The wife claimed in the witness box to have told Centrelink the correct information as to the care arrangements but I do not accept that evidence. Even if she did tell them, she certainly failed to follow it up with them. The wife was dependent upon Centrelink benefits at all relevant times. Her financial situation was modest and she felt resentful at having had to return with the children to Town A. In my view, the wife was content to “turn a blind eye” in terms of her Centrelink obligations. [12]
[12] See exhibits “F4” and “W7”.
The wife’s evidence as to her rental payments while she was in Town S pending the interim hearing was confusing and difficult to follow. The only obvious conclusion was that she quickly fell into arrears, although I do not consider that she fully accepted responsibility for that.[13]
[13] See exhibits “F5” and “F7”
I do not accept the wife’s affidavit evidence that she texted the husband to ask him to give her his bank account details so that she could pay half of the children’s nippers fees. She was unable to produce the text she alleges she sent to the husband. Moreover, if she had genuinely wanted to contribute she could have done so in other ways – for example she could have given the husband cash.
On occasions the wife has exposed the children to the adult conflict. She has complained in the presence of the children about the husband not returning toys. I accept Ms N’s evidence that the wife has consistently avoided her and rebuffed her attempts at introduction.
The wife’s actions have contributed to the children becoming well aware of the adult tension. The wife’s actions in this respect have fallen short. I add here that the wife also accused Ms N and the husband of having sex which was witnessed by the children – an allegation that was not pursued by her counsel in cross-examination and one which I reject as being unreliable.[14]
[14] The wife conceded that she did not actually follow up with a formal complaint of any kind either with the authorities or through her solicitors
In closing, I note that the wife’s affidavit and annexures ran to some 210 pages – much of which was a litany of complaints about the co-parenting arrangements and about the husband’s behaviour generally. Many of her complaints were justified but equally I gained the impression that the wife had spent a lot of time mustering together every negative event she could possibly include in the affidavit. It is quite apparent just how unhappy she is co-parenting the children in Town A. She has developed a negative outlook and this has at times adversely impacted her parenting. I accept that she feels overwhelmed in Town A on her own, that she is emotionally struggling and that subjectively she feels trapped there.[15]
[15] Paragraphs 469 – 471 of the wife’s affidavit
Overall, I found the wife to be a better and more reliable witness than the husband. But some aspects of her evidence were unsatisfactory.
The maternal grandmother, Ms K:
The maternal grandmother had sworn an affidavit in support of the wife.
It is quite clear from her evidence that Ms Jerald has provided substantial support to the wife over the years.
In terms of financial support, Ms Jerald’s affidavit had annexed a spreadsheet setting out the various moneys that she and her husband were said to have advanced to the wife over the years. She said that the details in the annexure were “to the best of her knowledge” and she accepted it may not be entirely accurate.
In cross-examination the annexure was shown not to be entirely accurate. It was generated in retrospect[16] and it included moneys that were advanced to the wife’s sister. The repayments by the wife to her parents as set out in the annexure were less than the amounts deposed to by the wife in her trial affidavit.
[16] As is apparent from paragraph 6 of Ms Jerald’s affidavit
But in the end, these things do not matter much. The annexure to Ms Jerald’s affidavit never purported to be a comprehensive document. Moreover, the wife did not contend that any debts to her family ought to be included in the Balance Sheet.
Certainly I am satisfied that Ms Jerald and her husband did provide significant financial support to the wife over the years, including during the relationship, and at times when the husband went to Country W leaving the wife somewhat “short”.
In terms of physical and emotional support, I accept that the wife and Ms Jerald have a very close mother-daughter relationship. During the relationship Ms Jerald provided the wife with significant emotional support, particularly during her pregnancies, all of which were difficult and high-risk.
She witnessed unpleasant exchanges between the husband and the wife in which the husband spoke in a derogatory manner towards the wife. However, like the paternal grandmother, her affidavit refrains from criticising her own child as a parent. Ms Jerald would have doubtless have heard the wife speaking aggressively or abusively towards the husband on occasions as well.
Ms Jerald and the husband continue to speak on the telephone regularly and the Ms Jerald remains an abiding source of significant support to the wife. She has witnessed some conflict and tension between the parents at times, including the parents’ exposure of the children to the conflict, and its impacts on the children.
I accept Ms Jerald’s affidavit evidence that “Even though Ms Jerald puts on a brave face, I can see she is suffering emotionally and financially in Town EE. We talk almost daily, and she updates me about what Mr Schwartz has said or done, of the changes he wants to the orders and how it makes her feel. She seems constantly upset and stressed out over the Court stuff, and I just want to see her and the children happy as they are when the Court stuff is dormant from their lives.” [17]
[17] Paragraphs 86 & 87 of her affidavit
In cross-examination, the husband’s counsel pointed to Ms Jerald’s significant number of past visits to the Town A region, suggesting to Ms Jerald that she can and will continue to visit the wife if the wife remains living there. Ms Jerald conceded that if the wife remained in Town A, then she would have “no choice” but to keep visiting and I accept that. It was clear from her evidence that Ms Jerald feels obliged to provide what she regards as much-needed physical and emotional support to the wife. Travel to Town A has not always been easy for her, particularly in recent years given some of her husband’s health issues and she also referred to fuel costs as being a practical hindrance.
Overall, I was generally impressed with the evidence of Ms Jerald. She is loving and supportive of her daughter and of the children and remains anxious as to the wife’s emotional wellbeing in the Town A area. As a general statement I considered Ms Jerald’s evidence to be credible.
The Family Consultant:
For the purposes of the Family Report, Family Consultant Ms O interviewed the parties and conducted observations of the children in July 2016.
At that time the separation was still somewhat “raw”. At interview, Ms O found both parents to be strong-willed and each became quite reactive at times when she challenged their respective points of view.[18]
[18] See paragraph 64 in relation to the wife; see paragraph 29 in relation to the husband
Ms O expressed concern about:
· issues of family violence between the parties, noting that there was admitted mutual verbal abuse;
· the husband’s attitude and personality issues including his seeming sense of superiority;
· the rigidity of each parent’s point of view;
· the wife’s unilateral decision to relocate and her dismissiveness in relation to the travel issues that then arose.
Ms O observed that all three (3) children appeared to have a close relationship with both parents.
Ultimately Ms O’s recommendations hinged upon whether or not the court considered that the children could maintain a meaningful relationship with the husband from Town S. If they could, then her recommendation was to allow the relocation. If they couldn’t, then her recommendation was instead that the children spend five (5) nights per fortnight with the husband in the Town A area. Specifically, she suggested that the configuration be from after school Friday to commencement of school Monday in one week, and after school each alternate Tuesday until commencement of school Thursday, together with half school holidays and time on special occasions.
Given the age of the Family Report by the time the trial commenced, the court ordered an updated interview of the children. The report of that further interview is exhibit “C2”. In the result, not much turns on it.
In her oral evidence, Ms O confirmed the simmering resentment that exists between the parties and noted that both are very firm in their own views.
She explained that a “meaningful” relationship between the father and the children involved questions of both quality of time and quantity of time. She said that if the parents were living in the same area, then the opportunities for time with the husband would be “more relaxed” which would be a positive.In the event of relocation, she did not consider that the loss of opportunities for regular interaction during the week could be “compensated” by increasing holiday time - as such an outcome would deprive the children of quality holiday time with the wife.
Ms O confirmed that in the three (3) years since separation, there were none of the “danger signs” present that would be suggestive of the children’s relationships with the husband being sabotaged in the event of a move. In particular, it was not suggested that the wife had breached the orders or that there was high conflict between the parents at changeovers. She considered that the wife’s letter to the husband at separation[19] was a strong indicator that the wife would foster and promote a relationship between the husband and the children and that she valued those relationships.
[19] Exhibit “F1”
Ms O was concerned that the co-parenting situation could worsen over time if the wife remained in Town A as she may feel “controlled” by having to live there against her wishes; there was a risk that her resentment may not abate.
Ultimately, Ms O stood by her Family Report recommendations.
RESOLUTION OF THE PARENTING DISPUTE:
The law:
The court’s power to make parenting orders is found in Part VII of the Family Law Act (“the Act”).[20] Section 60B of the Act sets out a number of key objects and principles which underpin the operation of Part VII. I do not propose to restate those here.
[20] The term “parenting orders” is statutorily defined in s.64B of the Act
When deciding whether or not to make a particular parenting order, the Act requires that the court regard the best interests of the children as the paramount consideration: section 60CA, and section 65AA.
In arriving at a best interests determination, s.60CC of the Act prescribes mandatory considerations for the court. There are two (2) so-called “primary considerations” in s.60CC(2)(a) and s.60CC(2)(b). There are fourteen (14) so-called “additional” considerations set out in s.60CC(3).
When a court is considering making a parenting order, s.61DA(1) of the Act imports a rebuttable statutory presumption that it would be in the best interests of the children for the parents to have equal shared parental responsibility.[21]
[21] “Parental responsibility” is defined as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children: s61B
Pursuant to s.61DA(2), this presumption is not to be applied if there are reasonable grounds to believe that a parent has engaged in “abuse” of the children, or “family violence”.[22]
[22] “Abuse” is statutorily defined in s.4 of the Act, “family violence” in s.4AB
Pursuant to s.61DA(4), where the presumption applies, it can be otherwise rebutted by evidence which satisfies the court that the making of such an order would not in fact be in the children’s best interests.
Pursuant to s.65DAA of the Act, if the court makes an order that the parents are to have equal shared parental responsibility for children, then the court is obliged to follow the specific statutory pathway set out in that section: see Goode & Goode (2006) FLC 93-286. Put shortly, the court must consider, as the first option, making an order for the children to spend equal time with both parents provided that an equal time order is in the best interests of the children and “reasonably practicable”.
If equal time is not in the best interests of the children or is not reasonably practicable, then the court must consider making an order for the children to live primarily with one parent but to spend “substantial and significant time” with the other parent. “Substantial and significant time” is statutorily defined as meaning that the children spend time with the other parent not merely on holidays and weekends but also in a way that allows that parent to be involved in the children’s day-to-day routine and on occasions of special significance: s.65DAA(3). Once again though, such an order can only be made if the making of such an order is in the children’s best interests and reasonably practicable.
If an order for substantial and significant time is not in the best interests of the children or is not reasonably practicable, then the question of the children’s time with the other parent is at large, to be determined by application of the best interests considerations in s.60CC.
“Reasonable practicability” is defined in s.65DAA(5). It refers to practical matters such as how far apart the parents live, their capacity to communicate and resolve difficulties, and the impact that the making of such orders would have upon the children. It also contains the familiar catch-all, being “such other matters as the court considers relevant”.
In MRR & GR (2010) FLC 93-424, the High Court of Australia explained that “reasonable practicability” required the court to consider the reality of the situation of the parents and the children. The court must undertake a practical assessment of whether an order for equal time, or for substantial and significant time, is feasible – particularly for the parent who might in that scenario be living in circumstances of disadvantage or in a town not of their own choosing.
In the present case, both parents seek an order for equal shared parental responsibility. In the circumstances, the court proposes to make that order by consent. This engages s.65DAA of the Act, with the result that the court must consider, as the first option, making an equal time order.
Before turning to the specific best interests considerations in this case, I will refer briefly to some authorities that have grappled with the ever-difficult issue of relocation.
In U & U [2002] HCA 36 the High Court held that the court is not strictly bound by the competing parenting proposals of each party; subject to affording each party procedural fairness it can craft different orders if required so as to meet the best interests of the child in any given case.
The Full Court[23] said in Zahawi & Rayne [2016] FamCAFC 90:[24]
43. …Conformably with what had been said by the High Court in [AMS v. AIF] that a parent seeking to relocate with children need not show “compelling reasons” for the relocation, the Justices in the later decision of U v U, and in particular Kirby J, referred to long-standing English authority, the emphasis of which can be seen in what Sachs LJ said in Poel v Poel:
…The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear.
44. As Kirby J also points out, that central proposition has been reinforced by curial statements to the effect that, for example:
[W]hen one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody.
[23] Thackray, Murphy and Austin JJ.
[24] Footnotes have been omitted
and:
[T]his line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children.
45. His Honour went on to say:
This Court, and other courts of Australia, are not bound by the decisions of foreign courts on this or any other subject. However, where (as here) Australian legislation has substantially followed a precedent in English legislation, it is obviously sensible to take into account the course of judicial authority in that country dealing with the same legislation. So much was acknowledged in AMS, where the decision in Poel was examined in my reasons with which, on the decisive point, Gleeson CJ, McHugh and Gummow JJ agreed.
46. However, as his Honour was also anxious to point out, and as is clear from the terms of the Act itself, the application of those propositions does not give rise to any presumption or additional onus. Rather, they posit the acute issues as to the best interests of the children within legitimate parental expectations and desires consequent upon marriage breakdown and the need to construct lives for parents and children consequent thereto.
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
I would also respectfully refer to paragraphs 65 and 66 of the joint judgment of the Full Court[25] in Adamson & Adamson (2014) FLC 93–622, wherein their Honours said:
65.It follows from the decisions of the High Court in AMS & AIF (1999) 199 CLR 160 and U & U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to do so with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U & U at [82] citing AMS v AIF).
66.These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
[25] Ainslie-Wallace, Murphy & Kent JJ
Best Interests:
The findings which follow should be read with my earlier findings herein.
Primary Considerations:
s.60CC(2)(a) - Benefit of children having meaningful relationship with both parents:
In Mazorski & Albright (2007) 37 Fam LR 518, Brown J referred to the concept of a “meaningful relationship” as being a relationship which is important, significant and valuable to a child. It is a qualitative adjective, not a strictly quantitative one.
It is common ground that the children would benefit from continuing their meaningful relationship with both parents. The wife has always been the children’s primary carer and she has appropriately nurtured them. The husband has also been a significantly involved parent. His parenting attributes complement those of the wife.
If the children remain living in the Town A region, then the husband’s relationship with them will not only be meaningful, but optimal.
If the children were to relocate to Town S, the husband’s relationship with them would diminish to some degree due to the tyranny of distance. However, the husband has some flexibility in his work hours; he does not for instance have to work weekends. He has the option to work longer hours in one week and shorter hours in the next week. This enables him to “free up” some days for travel in the event that the children relocate.
History has shown that the husband will make it a priority to spend as much time with the children as he reasonably can. The husband would regularly visit them and would still play a role in their extra-curricular and other social activities to the maximum extent that he could. His relationship with them would remain meaningful.
In Godfrey & Saunders [2007] FamCA 102, Kaye J, sitting as the Full Court, held that:
“…[T]he legislation…does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.” [26]
[26] Paragraphs 33 and 36 of the judgment respectively
I am satisfied that the children will be able to maintain a meaningful relationship with the husband in either location but the optimum and most meaningful relationship would be facilitated by the parents continuing to live close by.
s.60CC(2)(b) - Protecting children from harm:
As set out earlier in these reasons, I am satisfied that the husband perpetrated family violence against the wife during the relationship. He belittled the wife, he exercised a measure of financial control over her, he threw away possessions of hers and on a few occasions he pushed her. There was a power imbalance between the parties, with the husband being in the stronger position of the two.
That said, the wife also verbally abused the husband on occasions.
Going forward, I do not consider that the children are at unacceptable risk of being exposed to abuse, neglect or family violence when in the care of either parent.
Additional Considerations:
s.60CC(3)(a) - Views expressed by the children:
When interviewed by the Family Consultant on 8 August 2018, the children said that they enjoyed living with the wife and had no complaints.[27] The children also enjoyed spending time with the husband.[28]
[27] See exhibit “C2”, paragraph 10
[28] I give no weight to [Z]’s complaint that on occasions the husband is “mean”. See Exhibit “C2”, paragraph 11
The children were comfortable with the present arrangements, [Y] wanting to keep things the same and [Z] preferring to have less sleepovers with the Father.[29]
[29] See exhibit “C2”, paragraph 15
The children are well aware that the wife wants to move to Town S and superficially they can see the benefits of being “close to nan and pop”. However, I do not consider that, in the result, I can give any real weight to their wishes given the complex issues involved in the proposed relocation and the children’s relatively young ages.
s.60CC(3)(b) – Nature of children’s relationships:
The children are primarily attached to the wife but also have a significant attachment to the husband. They have close and loving relationships with extended family on both sides, particularly the maternal grandparents and the paternal grandmother all of whom have made a concerted effort to maintain relationships with the children throughout their lives.
If the children remain in the Town A area they will continue to benefit from having both parents involved in their lives to the maximum extent and they will continue to have interaction with extended family members. They will also benefit from their ongoing interaction with Ms N and her children [AA] and [BB].
If the children relocate to Town S, their opportunity for ongoing interaction with the husband will be diminished. Their opportunity to interact with Ms N and her children will substantially reduce. The children will be better able to foster and develop their relationships with the maternal family, particularly with the maternal grandparents, with the mother’s sisters and their respective families (including cousins), and with other extended family members of the wife including uncles and aunts and their families.
s.60CC(3)(c) – extent to which parents have taken the opportunity to participate in children’s lives, including in decision-making:
The wife has always been the children’s primary carer. The husband has been as involved with the children as he reasonably could be, around his work commitments.
When the wife relocated, the husband brought these proceedings very promptly. He has made a significant effort to visit the children at times when they have been geographically separated.
The husband has actively instigated and involved himself in the children’s extra-curricular activities. He has coached [Y] and [Z]’s mixed sports team; he has actively fostered the children’s attendance at sporting events. He is an active and involved parent and will continue to be so if the parents live in close proximity.
If the children relocate and the husband remains in Town A then his opportunity to be involved in such day-to-day matters will largely diminish which would be a loss to the children.
s.60CC(3)(ca) – extent to which parents have fulfilled obligations to maintain children:
The husband has financially supported the children, although at times when he travelled to Country W his level of financial support was somewhat “mean” and he put his own interests first.
Since separation, the husband has paid the wife’s rent in Town A and I am satisfied that, overall, he has been a good provider to the children.
For her part, the wife provides for the children out of her Centrelink benefits and there is no suggestion that she has failed to financially provide for the children.
s.60CC(3)(d) – likely effect of any change in circumstances:
If the children remain living in the Town A region, they can continue to attend their schools, spend time with their friends and continue in their various extra-curricular activities. There are many benefits to the children.
An insidious disadvantage to the children remaining in Town A is that the wife is very unhappy there, feeling unsupported and controlled. She does not have any tangible family support available to her to assist her as a parent. She sees the Town S region as home, having lived her whole life there until her relationship with the husband.
Apart from her significant family support in Town S, the wife also has long-term friends there who have children of similar ages. There are real practical advantages to the wife in the event that she is able to relocate with the children.[30]
[30] I accept the wife’s detailed evidence in paragraph 508 of her affidavit as to the significant support which is available to her in the Town S area
Although the wife downplays the travel involved, and although she was somewhat proprietorial of the children in her interview for the Family Report, on balance I am satisfied that she has a positive attitude towards the husband as a parent and that she would promote his relationship with the children from a distance. Although she has not facilitated every post-separation request made by the husband for a change in the co-parenting arrangements, she has accommodated a great many of those requests and, overall, I am satisfied that she would continue to foster the husband’s relationship with the children.
Emotionally, I consider that the wife would find it easier to foster the husband’s relationship with the children from Town S than she would if she remained living in Town A, where she experiences simmering resentment and a sense of frustration.
I also consider it a real likelihood that the husband would follow the children to Town S if they relocated. While the husband has not yet actively considered relocating, his evidence was that he will consider doing so if the children move as he sees it as a “moral issue” for him. In his words “any father would”.
The husband still owns a terrace house in Town S which he could move into. While his evidence is that the economy is “not racing ahead” in the ecology sector, he also admitted that he has not made any serious attempts to look for work in the Town S region. He does have a positive reference from Employer M and he has some contacts out there. He has also had public service training; there may potentially be such work available to him in the Region P.
It seems unlikely at this stage that Ms N or her children could relocate to Town S. Ms N lives and works in Town A and does not want to move away. Her children’s father lives locally. It should also be borne in mind that Ms N’s relationship with the husband, while seemingly serious, does not yet involve cohabitation. They may or may not deepen their relationship over time but at this stage I do not see it as a realistic likelihood that Ms N would be moving to Town S if the husband did. They would more likely either separate or try to manage a long-distance relationship.
s.60CC(3)(e) – practical difficulty & expenses:
If the children remain living in the Town A region, then there are no relevant practical difficulties or expenses associated with the children maintaining relationships with both parents.
Relocation to Town S inevitably does give rise to practical difficulties and expenses. Without the children, the relevant driving time between the two locations would be at least five and a half (5½) hours and with the children in the car the journey would be closer to six and a half (6 ½) or even seven (7) hours.
The husband would make maximum use of the flexibility in his work hours in the event that the children relocate to Town S and he remains living in Town A.
In the event of relocation, both parties concede that the travel burden is such that the children should not be required to travel from Town S to Town A more than once each month.
s.60CC(3)(f) – capacity of parents and relevant others:
I am satisfied that both parents have the appropriate capacity to be able to provide for all of the children’s physical and emotional needs.
If the children remain living in the Town A region, then the wife’s parenting capacity will likely be somewhat impinged as a result of her unhappiness, the lack of family support[31] and her sense that her life is being controlled. This would likely manifest in ongoing tension between the parties which would impact the children.
[31] NB – When [Z] recently broke her hip, and when [X] had to go to hospital because a bean was stuck in her nose, the husband’s work commitments on those days meant that he was unavailable on either occasion to personally assist. This is not a criticism of the husband but it does highlight the wife’s lack of support in Town A
I do not consider that the wife would set out to make things difficult if she had to remain in Town A - but like the husband she is very strong-willed and I think that she would struggle emotionally if she felt she had to remain in the Town A area with the children long-term against her wishes.
s.60CC(3)(g) – maturity, sex, lifestyle and background of the children:
The children’s ages have been set out earlier. [Y] and [Z], the older children, probably appreciate their relationship with the husband more than [X] does. All three (3) children will come to increasingly appreciate their relationship with the husband as they grow older but at this time the children are all primarily bonded to the wife.
s.60CC(3)(i) – attitude to the children and to the responsibilities of parenthood:
Some criticisms can be levelled at the wife’s attitude given her unilateral relocation, her lack of insight into the travel issues, and her proprietorial attitude to the children in the Family Report interview. She has exposed the children to some of the adult conflict and her attitude towards Ms N is regrettable. She also been reactive on occasions – abruptly cancelling the husband’s invitation to [Z] and [X]’s combined birthday party in … 2018 after his lawyers queried her lawyers about a prospective inheritance she may be entitled to.[32]
[32] Husband’s affidavit, paragraph 69(k).
Overall however, the wife has been able to appropriately foster the children’s relationship with the husband in the Town A area.
The husband is a committed father. He is however fairly dismissive about the wife’s day-to- concerns such as the exchange of the children’s clothing, toys and the like. He sees himself as superior to the wife.
The parties have different parenting styles – the wife is more prescriptive about the details around the children’s care whereas the husband is more relaxed.
Having made these observations, the court has no serious concerns about either parent’s attitude to parenting. Each party has an appropriate attitude to the children and to the responsibilities of parenthood. But their attitudes do clash in some respects and this is a source of some ongoing tension.
s.60CC(3)(j) & (k) – family violence and related orders:
I have addressed these matters earlier.
s.60CC(3)(l) – whether it would be preferable to make the order that would be least likely lead to the institution of further proceedings:
This would be desirable given the simmering resentment and conflict between the parents.
s.60CC(3)(m) – any other relevant fact or circumstance:
The wife has spent the bulk of her life in the Town S region; she regards it as home. The children have lived a significant amount of time in that region as well. To some extent it is an accident of history that the parties were living at Town A when they separated, although I accept that at the time they were living there during the relationship, the parties both enjoyed the area as do the children.
The wife would continue to feel controlled by the husband if she was unable to relocate back to Town S with the children.
Conclusion & orders:
The parties have jointly asked the court to make an order for equal shared parental responsibility. In the circumstances the court considers it to be in the best interests of the children to make that order notwithstanding the tension between the parties.
Following the pathway in s.65DAA:
(a)If the parties were both living at Town A, the court does not consider that an equal time arrangement would be in the best interests of the children. The difference in the parties’ parenting styles, the power imbalance between them and their ongoing tension contra-indicate that such an order would be in the children’s best interests. Nor in my view would such an order be “reasonably practicable” in the event that the parties were living at Town A given the likely adverse impact on the wife’s parenting, the likely difficulties in relation to the parties’ capacity to communicate and resolve difficulties, and the impact such an arrangement would have on the children.
(b)In the event that the parties were both at Town A, an order whereby the children live primarily with the wife, but spend substantial and significant time with the husband (five nights per fortnight during school terms), would be a better arrangement for the children. I consider that a block of five (5) nights would be in the best interests of the children if the parties were living at Town A. Such a scenario would be “reasonably practicable” albeit difficult for the wife.
To arrive at an overall “best interests” outcome, it is this scenario which must then be weighed up against the wife’s proposal to relocate with the children.
(c)Weighing up those competing options, the court is ultimately of the view that relocation would be more in the best interests of the children than maintaining a “substantial and significant time” arrangement in Town A. The court considers that the children will be better served by having a happier, more functional mother who feels (and is in fact) supported as primary carer. The children will benefit from that and although there will be a detriment in terms of spending less time with the husband, the court considers that the overall advantages for the children outweigh the disadvantages. The court is confident that the husband will remain an active, dedicated and loving father to the children, that meaningful opportunities for interaction will remain and that the husband will make the most of such opportunities.
(d)If the husband were to relocate to the Town S region, a nine (9) night / five (5) night “substantial and significant time” arrangement in that region would be in the best interests of the children. The wife would be much better able to facilitate such an arrangement from Town S than she would from Town A. If he wished to, the husband could then structure his work hours to make maximum use of his nine (9) days without the children.
(e)The court proposes to make orders which provide for both scenarios, ie. the husband remaining in Town A and the husband following the children to the Town S region.
Conclusion:
For these reasons, the court makes the parenting orders which are set out at the commencement of the judgment. The orders specifically provide for special days, holidays and the like – such matters not being the subject of any significant argument at trial.
To the extent that the orders provide for holidays, I have defined when such holidays are deemed to commence and conclude and I have nominated a mid-point in an effort to minimise the risk of dispute and further litigation. I have also provided for the children to spend half of the Christmas holidays with each parent as a block rather than week-about as this is more practical and child-focussed. The children are resilient, they will cope with that.
I will include the husband’s proposed “overseas travel” order so as to hopefully minimize the risk of future litigation over that issue. I do not see either party as a flight risk.
The orders are otherwise self-explanatory. For convenience the orders will refer to the parties as the “Mother” and “Father” respectively.
The court considers these parenting orders to be in the best interests of the children.
RESOLUTION OF THE PROPERTY DISPUTE:
The court’s approach:
These proceedings are governed by the provisions of Part VIIIAB of the Family Law Act (“the Act”).
For present purposes, these provisions are the same as those applicable to married couples in Part VIII of the Act. The relevant case law in respect of Part VIII is equally applicable to Part VIIIAB.
In considering what property settlement order (if any) to make in the present case, I intend to follow a structured approach. In particular, these reasons for judgment will:
(a)Firstly, identify and value the property, liabilities and financial resources of the parties;
(b)Secondly, consider whether it is “just and equitable” to make a property settlement order;[33]
(c)If so, then the third step will be to identify and assess the respective contributions made by each of the parties towards the net assets pursuant to s.90SM(4)(a), s.90SM(4)(b) and s.90SM(4)(c);
(d)The fourth step will be to identify and assess what might be called the “future factors” (as relevant) contained in s.90SF(3), which are brought into consideration by operation of s.90SM(4)(e). I will also identify and assess the relevant matters set out in s.90SM(4)(d), s.90SM(4)(f) and s.90SM(4)(g) as relevant. Having done so, I will then determine what (if any) adjustment ought to be made to each party’s respective contributions-based entitlement. In carrying out this step I will be mindful not only of percentages (which are often convenient to the court) but also the underlying dollar figures that are involved (which are the practical consequence to the parties);
(e)Finally, I will consider the effect of my findings and proposed orders so as to satisfy myself that my proposed property settlement order is “just and equitable”.[34]
[33] Stanford & Stanford (2012) FLC 93-518
[34] The pathway I am adopting is primarily based upon that endorsed by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, adapted by me to take into account the High Court’s decision in Stanford (supra).
Step 1 – Identifying and valuing the assets, liabilities and financial resources:
While the parties filed an agreed Balance Sheet as exhibit “C3”, it contained a number of disputed items.
Using exhibit “C3” as a template, I find the Balance Sheet to be as set out below. I have excluded the items that the parties agreed to exclude. The contentious items are asterisked and my reasoning in relation to those items follows.
Non-superannuation assets:
Owner
Description
Value
H
Town S property
$230,000
H
Motor Vehicle Q
$ 3,000
H
Motorcycle
$ 4,000
H
Sale proceeds – Street E, Suburb F & Street G, Suburb H
$201,145
H
Deposit moneys – Street E, Suburb F
$ NIL *
H
Termination payment – Employer M
$ NIL *
H
Addback – earlier distributions
$ 42,000
W
Addback – earlier distributions
$ 42,000
ASSETS SUB-TOTAL
$522,145
Liabilities:
Owner
Description
Value
H
ME Bank – home loan
$136,810
H
Debt to mother, Ms C
$ 15,580*
H
Debt to brother, Mr B
$ 7,020*
W
Centrelink debt
$ NIL *
LIABILITIES SUB-TOTAL
$159,410
NET NON-SUPERANNUATION ASSETS
$362,735
Superannuation:
Owner
Description
Value
H
Super Fund J
$204,285
W
Super Fund FF
$ 584
TOTAL SUPERANNUATION
$204,869
Deposit moneys – Street E, Suburb F:
Shortly prior to separation the husband sold his property at Street E, Suburb F. The deposit moneys were $45,300 and after deduction of commission the net deposit moneys of $32,163 were paid to the husband, who spent them in full.
The wife contended for an add-back of the full amount. Her argument was that the husband could have lived off his normal Employer M salary instead of depleting this asset.
In the witness box, the husband conceded that over about a four (4) week period he had paid $26,000 of those moneys onto his credit card. (The husband used the credit card quite liberally during the relationship to meet his expenses as he liked to earn the associated frequent flyer points.)
Some of the money was spent on self-support, some was used to pay previous credit card debts, some was paid to the wife (effectively as child support) and some of the money was spent booking airfares to enable the husband to visit [L] in Country W.
Although I am satisfied that a significant portion of those moneys were in fact applied for the husband’s sole benefit and without reference to the wife, I do not propose to add back those moneys.
I take that position because it is quite clear on the evidence that the husband has provided substantial financial support to the wife and children since their return to Town A. For instance, the rent paid by the husband for the wife and children has been about double what his likely child support assessments would have been had there been a formal assessment in place.
The wife’s counsel properly conceded in closing submissions that it would be open to the court not to add back the deposit moneys spent by the husband but rather to take them into account in relation to contributions. This is the approach I intend to adopt.
Termination payment – Employer M:
In June 2017, the husband received an after-tax lump sum payment of $31,026 from Employer M consequent upon the termination of his employment.[35] The husband expended those moneys in full.
[35] Annexure “W” to the wife’s trial affidavit
Most of that lump sum was traceable to his accrued leave entitlements, some of which accrued during the parties’ relationship.
The wife again contends for an add-back of the full amount, but again I do not propose to add back those moneys either. I will take the same approach as I did for the Street E, Suburb F deposit moneys, and for the same reasons. It will be considered in terms of contributions.
Alleged family debts to Ms C and Mr B:
I will start with the husband’s evidence.
The husband contended that the Balance Sheet should include:
(a)a debt of $30,453 (including interest) to his mother Ms C;
(b)a debt of $27,266 (including interest) to his brother Mr B.
The wife vigorously disputed the genuineness of those debts and contended that they should not be included in the Balance Sheet.
In the husband’s affidavit, he deposed that his mother loaned him a sum of $5,000 in September 2012 and a further $23,372 [36] in April 2015 - totalling $28,372.
[36] Cents are ignored
Bank statements corroborate that on 5 September 2012 the husband’s mother did pay him $5,000 and that on 10 April 2015 she did pay him another $23,372.[37]
[37] Exhibit “F12”
The husband deposed that between March 2016 and March 2017 he had repaid his mother the sum of $1,144 by paying for her flight costs. Thus the principal debt had been reduced to $27,228.
The husband then applied interest to that debt at 3%, in order to arrive at a total debt of $30,453 as at trial.[38] But while the husband deposed that “interest” was repayable, his evidence as to the 3% rate was struck out following an objection.
[38] The interest calculations in his affidavit were struck out following an objection - but the husband nonetheless contended for a figure of $30,453 which included interest
As for his brother Mr B, the husband’s affidavit deposed that Mr B had made a number of loans to him totalling $24,667.
Bank statements corroborate payments from Mr B to the husband totalling $20,267. The last advance of $4,400 on 13 June 2017 was however uncorroborated.[39]
[39] Exhibit “F12”
The husband then applied interest to the debt to arrive at a total debt of $27,266 at trial. Again his evidence as to interest was also struck out.
He deposed that he had made no repayments to his brother.
In support of his case, the husband’s affidavit annexed a copy of his Will dated 1 August 2015 (executed prior to separation) which directed his trustee to repay a loan of $28,000 to his mother and $20,267 to his brother.[40] Those figures are broadly consistent with the husband’s evidence in his affidavit – the only reason his brother’s debt is $4,400 less in the Will is because his brother advanced him the $4,400 in 2017 after the Will was executed. Notably though, the Will had not been updated following that advance.
[40] Annexure “F”
The husband’s affidavit also annexed civil proceedings brought by his mother and brother against him in March 2017 in the Magistrates Court of Queensland. However, the combined principal debt claimed against him was just $39,988 - comprising $23,508 owing to his mother and $16,480 owing to his brother. But on the husband’s evidence the combined claim (excluding interest) should have been $51,895.[41]
[41] $27,228 (Mother) + $24,667 (brother)
The husband’s affidavit deposed that the dollar figure claimed against him was wrong. But as noted earlier, the husband was not an impressive witness. In the course of cross-examination, a number of incongruities emerged.
One such matter was that the husband’s mother and his brother both depend upon Centrelink benefits. Their financial circumstances are modest. Yet the husband had passed up golden opportunities to make repayments to them when he received lump sums. In particular:
(a)The husband did not apply any of the Street E, Suburb F deposit moneys ($32,163) towards the alleged family debts;
(b)The husband did not apply any of his Employer M termination payout ($31,026) towards the alleged family debts;
(c)In relation to the $4,400 loan from his brother to buy a motorbike, the husband deposed in his affidavit[42] that the motorbike had since been written off. In cross-examination it emerged that the husband had received a $7,300 insurance payout from NRMA, none of which was repaid towards the alleged family debts. (The NRMA insurance payout was a glaring omission from the husband’s affidavit.)
[42] Paragraph 97 of his affidavit
The husband gave evidence that, while he had not made any repayments to his brother Mr B, he had in fact repaid him “in kind” in that he had purchased two return flight tickets for he and his ex-partner to go to Country GG. He estimated that the costs was about $800. This evidence was not contained in his affidavit, or in his brother’s affidavit.
The husband also conceded that an April 2016 payment of $2,000 as contained in his bank statement[43] may have been a repayment to his brother. I am satisfied that it was – and notably that repayment was not referred to in his affidavit or in his brother’s affidavit. The husband also conceded that the repayment was not recorded in his loan spreadsheets which he said was an “error”. I don’t accept that this was an “error”.
[43] Exhibit “W6”
I consider these repayments to be significant omissions from the husband’s affidavit material, particularly where formal debt recovery proceedings had been instituted in the Magistrates Court. One would think that the exact amounts owing from the husband to his brother (and to his mother) ought to have been properly and carefully cross-referenced and checked before that claim was filed.
I am also satisfied that the husband orchestrated the Magistrates Court proceedings against him. This finding, in combination with his earlier admission as to generating false documents for court purposes, means that the court needs to regard his evidence as to these alleged family debts with caution.
Specific debt to Ms C:
Ms C’s affidavit deposed that the $5,000 and the $23,372 advanced to the husband were loans. The original $5,000 loan was made by her late husband and she said that interest was payable but she could not say how much or at what rate. The debt was repayable upon the husband selling one of his houses.
As for the $23,372, Ms C’s affidavit deposed that this was her “life savings” which she had paid to the husband to “get better interest” than she was receiving at the bank and that, like the $5,000, it was to be repaid upon sale of one of the husband’s houses. She deposed that she and the husband agreed that, pending repayment, he would pay for her flights and expenses when she visited him and that such sums could be offset against the loan balance.
In the witness box, Ms C confirmed that she was in receipt of a Centrelink pension and that she didn’t have any savings. In relation to interest on the loans, she said that the father had “offered” to pay it but my strong impression of her evidence was that this was a case of him volunteering to do so rather than it having been required or agreed between them.
Ms C claimed to have spoken to the husband about repaying the moneys owed to her out of the sale proceeds of the Street E, Suburb F property and that he had told her that he could not repay her as this money was “tied up” by that time. When pressed further about this, she said she had no idea what the husband’s actual financial circumstances were; such matters were “not my business”.
In relation to the Magistrates Court proceedings, she gave evidence that she was not paying the solicitors involved and that the proceedings were “on hold” pending finalisation of these proceedings.
She confirmed that the husband pays her flight costs, which she then subtracts from the amount that the husband owes her. She said she keeps a diary which contains details of all of those flight costs. Notably, none of the flight cost “repayments” made by the husband were referred to in her affidavit. Nor did she produce (or annexe) her diary of repayments.
At one point in her evidence she also explained that when the husband pays her flight costs, she in fact reimburses him. I do not accept that evidence as, frankly, it made no sense to me and was inconsistent with both her affidavit and with the husband’s affidavit.
Overall, Ms C’s evidence as to this loan was something of a “mixed bag”. I have no doubt that she has limited means and that she relies upon the husband repaying her what he owes – particularly given that she is awaiting surgery.
My difficulty is that the husband was not a reliable witness, and her own evidence was not entirely satisfactory either.
As for the wife’s evidence, her affidavit deposed that the husband told her from time to time about lending money to his mother and brother. The husband vigorously denied that allegation in the witness box, saying he had never been in a financial position to lend money to his family.
The husband’s denial portrays himself as being not a particularly good money manager. This is ironic, given that both the husband’s mother and brother say in their respective affidavits that they thought the husband could look after their money for them in a way that would earn them a higher return.[44]
[44] Paragraph 50 of Ms C’s affidavit; paragraph 25 of Mr Schwartz’s affidavit.
In the end, I am satisfied that the husband has from time to time paid moneys to his mother and brother as the wife alleges, but I am also satisfied that the husband presently owes his mother significant money. I am satisfied that Ms C does expect to be repaid and that the husband has every intention of repaying her. At this stage he is doing so by way of paying her flight costs.
I do not consider that interest is, or has ever been, repayable. The husband may repay his mother some interest but there is no specific, enforceable interest rate which is applicable.
In relation to the quantum of the debt, I consider that I should draw the inferences that are less favourable to the husband’s case given the inconsistences in the evidence.
In the Magistrates Court, Ms C made a principal claim of $23,508 against the husband. That is the baseline figure I will work from, as I consider that any ambiguity in the evidence as to quantum ought not to be resolved in the husband’s favour. On his own evidence he had repaid a further $252 to his mother as at March 2017[45] and on the balance of probabilities I consider that he has repaid further moneys to her since then by way of airfares.
[45] Paragraph 188 of his trial affidavit
In Biltoft (1995) FLC 92-614 the Full Court held that it was open to a court not to take into account, or to discount, the value of an unsecured liability in certain circumstances – including but not limited to a liability which is vague or uncertain, unlikely to be enforced or not reasonably incurred.
I consider that it would be unjust to disregard the debt to Ms C in all the circumstances. But given the vagueness of the repayment arrangements and the inconsistencies in the evidence I will discount the principal debt claimed in the Magistrates Court by a further 33% - which brings it down to $15,580 (rounded). On balance I consider that to be a realistic figure as to the current quantum of that debt.
Specific debt to Mr B:
It was clear from his oral evidence that Mr B is of modest financial means. He runs a small business but his primary means of support is a Centrelink disability pension.
He gave evidence that as a younger man he had difficulty saving money - if he had money he would “spend it on things I shouldn’t”. His evidence on this issue seemed both honest and self-deprecating.
The wife’s counsel cross-examined him about the specific loans to the husband alleged in his affidavit. In the course of that cross-examination, some inconsistencies emerged between his evidence and that of the husband.
He said that the husband had in fact repaid him about $1,500 in 2014 or 2015 - a repayment that had not been mentioned in either his or the husband’s affidavit.
He was specifically asked about the husband buying him plane tickets by way of loan repayments. He started to answer that the husband had bought him plane tickets to “Country W” - but at that point the husband, who was sitting at the bar table, started shaking his head and Mr B then changed his evidence. He clarified by saying that the husband had purchased he and his ex-girlfriend tickets to “Country GG”. This latter version was consistent with the husband’s earlier evidence.
When asked to estimate the cost of those flights, his estimate was $2,500 rather than the $800 the husband had estimated in his evidence.
Like the husband, he had to admit that the cost of the plane ticket was a repayment “in kind” that was not referred to in his affidavit.
When asked about any other possible repayments made to him by the husband in cash or in kind, he could not recall any. He said that he kept a tally book of the money owed and he said that there was interest payable. His affidavit specifically referred to an agreed interest rate, based on the rate applicable to 12 month term deposits, then apparently 3%. But when asked about the interest rate in the witness box, his answer was that it was “an agreed rate…three and a half percent or something”.
Mr B’s tight financial circumstances and his apparent reliance on being repaid in full, this answer was surprisingly vague. I would add that, given the moneys were said to have been advanced over different timeframes, it is difficult to accept that the relevant term deposit rate would have been exactly the same at the date of each and every of the alleged loans.
Mr B confirmed that bringing the Magistrates Court proceedings had been the husband’s idea. The husband had told him that bringing those proceedings “seems to be the line we have to take because of the separation”.
Mr B said he and his mother Ms C had gone to a solicitor together and that his mother had paid the solicitor’s fees. He admitted that the proceedings were effectively on hold for now awaiting the outcome of the present proceedings.
As noted, the wife deposed that the husband paid money to his brother from time to time. The wife asks rhetorically – where did Mr B get the money to advance to the husband in the first place? Her evidence is that during the relationship the husband told her from time to time about advancing moneys to Mr B and she suggests that the money coming in from Mr B must originally have come from the husband.
As noted, the husband was not a reliable witness as to financial matters and there were also inconsistencies between his evidence and Mr B’s evidence as to the exact amounts owed.
Like Ms C, the evidence of Mr B was something of a “mixed bag”. I have no doubt that he is close to the husband and has been supportive of him. The husband orchestrated the Magistrates Court proceedings and then not-so-subtly caused Mr Schwartz to correct his evidence in the witness box as to the cost of the plane tickets.
Equally, Mr B expects to be repaid the full amount that the husband owes him. Like his mother, his financial circumstances are such that he is reliant on being repaid.
The evidence as to the quantum of the debt points in different directions but on balance I am satisfied that there is a debt owing. It would be unjust to disregard the debt. The husband may repay some interest but there is no formal agreement about any interest rate and I will be making no allowance for interest.
Again in relation to this debt, I propose to draw the inferences that are less favourable to the husband’s case.
I will start with a baseline figure of $16,480 which Mr B against the husband in the Magistrates Court.[46] I will then deduct the repayment of $1,500 in 2014/2015 (conceded by Mr B), the repayment for flights estimated at $2,500 (this being Mr B’s estimate, which I prefer to the husband’s estimate of $800), and I will also deduct the repayment to Mr B of $2,000 in April 2016 as per exhibit “W6”. This brings the debt down to $10,480.
[46] See exhibits “AM” and “AN” to the wife’s trial affidavit
In making these deductions, I could be double-counting in that the Magistrates Court baseline figure may have allowed for such deductions. But in the circumstances of this case, my view is that any doubt on that issue should be resolved in the wife’s favour rather than the husband’s.
I will then further discount the $10,480 debt by 33% as I did in the case of Ms C, for the same reasons. This brings the debt down to $7,020 (rounded) which I consider to be a realistic figure.
Wife’s Centrelink debt:
The wife contended for her Centrelink debt of $14,364 to be included in the Balance Sheet.
Having regard to my earlier findings about that debt,[47] I do not consider it would be just and equitable to include this debt as a liability in the Balance Sheet. In my view, the husband should not have to share in it.
Step 2 – Considering whether it is “just and equitable” to make a property settlement order in this case:
[47] Paragraphs 71 and 72 of these reasons for judgment
In its decision of Stanford & Stanford (2012) FLC 93-518, the High Court of Australia elaborated upon and clarified the statutory requirement that the court not make any property settlement order pursuant to Part VIII (and by analogy, Part VIIIAB), unless it is “just and equitable” to do so.[48]
[48] The High Court was referring to s.79(2) but by analogy the decision also applies to s.90SM(3).
In their plurality judgment, French CJ, Hayne, Kiefel and Bell JJ held that:
(a)In every case in which a property settlement order is sought it is necessary to satisfy the court that in all of the circumstances it is “just and equitable” to make such a property settlement order [s.90SM(3)];
(b)The expression “just and equitable” is qualitative description of a conclusion reached after examination of a range of potentially competing considerations and does not admit of exhaustive definition. It is not possible to chart its metes and bounds. There are three (3) fundamental propositions which must not be obscured:
i)First, the court must begin a 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. The question posed by [section 90SM(3)] is thus whether, having regard to those existing interests the court is satisfied that it is “just and equitable” to make a property settlement order;
ii)The power to make a property settlement order must be exercised in a principled fashion, and it cannot be answered by assuming that the parties rights to, or interests in, matrimonial property are or should be different from those that then exist;
iii)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 by reference to the matters set out in [section 90SM(4)]. To conclude that making an order is “just and equitable” only because of, and by reference to the [section 90SM(4)] considerations, without a separate consideration of 90SM(3) would be to conflate the statutory requirements and ignore the principles laid down by the Act.
This was only a short relationship; the parties did not own or acquire any assets in their joint names nor did they conduct any joint bank accounts.
Nonetheless there was some intermingling of funds and the wife was financially dependent upon the husband, particularly after giving birth to their three (3) children.
Their relationship having broken down, the parties cannot now continue to mutually enjoy their asset base. Each party contends that it would be “just and equitable” to make a property settlement order in this case, albeit that each seeks different orders.
In the circumstances I am satisfied that it would be “just and equitable” to make a property settlement order in this case.
Step 3 – Assessing the respective contributions:
This was a relatively short relationship. The husband, who is some fourteen (14) years older than the wife, came into the relationship with assets of value. This included real property and superannuation arising out of his longstanding membership of a superannuation fund.
In the circumstances, I propose in the exercise of my discretion to divide the matrimonial property into two (2) separate categories for the purposes of assessing the parties’ respective contributions. [49] The first category will be the non-superannuation property and the second category will be the superannuation property.
[49] Norbis & Norbis (1984) FLC 91-543
Of course, assessing homemaking and parenting contributions and weighing those up against direct financial contributions is something of an art rather than a science and of necessity it cannot be a strictly mathematical exercise. Some of my contributions findings will be applicable to both categories of property, particularly in relation to homemaking and parenting contributions.
Contributions towards the non-superannuation property:
Initial contributions:
When the parties started their relationship in … 2008, the husband was thirty-three (33) years old and the wife nineteen (19).
The husband at that time already owned three (3) real properties – one at Town S, one at Street G, Suburb H and one at Street E, Suburb F . He had done some renovation work to the properties. All were encumbered. At trial the parties agreed that their combined net equity at that time was $90,000.[50] The husband also owned a motor vehicle, subject to a loan. He had some household furniture and chattels and he had some money in the bank. He was in stable and secure employment with the Employer M, based in the Town S region.
[50] The husband had undertaken some renovation works to the properties
The wife was working in customer service. She did not have any assets of substance. She had nominal savings, a motor vehicle, some furnishings and effects. She also either came in with a credit card debt, or acquired a credit card debt quite early on in the relationship, such debt being at least partly attributable to an overseas trip she took with the husband.[51]
[51] See annexure “H” to the husband’s affidavit
Regrettably, very early on in the relationship (… 2008), the wife was injured in a motor vehicle accident as a result of which she had to stop working. She did not thereafter work outside the home during the relationship.
Contributions during the relationship:
The parties initially cohabited in the husband’s Street E, Suburb F property. The Town S and Street G, Suburb H properties were rented out by the husband throughout the relationship.
It is common ground that throughout the relationship, the wife was the primary homemaker and parent. As part of that role, she had to undertake most of the packing up when the parties moved from home to home during the relationship to follow the husband’s work opportunities. This was no small burden, noting that the parties had effectively had three (3) children in fairly quick succession and the pregnancies were all difficult. In my view, the wife’s parenting and homemaking contributions should not be undervalued.
The husband was the breadwinner throughout, and from time to time he was required to work away from home. I have already found that he was a little “mean” financially at times when he went away to Country W and that he did exercise a measure of financial control - but overall I consider that he was generally a good provider for the family.
I am also satisfied that from time to time the parties received money from family members in order to help them out – the family’s money was genuinely fairly “tight” given that they were living off one income. The husband’s parents gave the parties $10,000 as well as swapping their larger motor vehicle for the parties’ smaller vehicle when the parties needed a bigger car.[52] The wife’s parents provided her with in excess of $37,000 over the years as set out in the wife’s affidavit.[53]
[52] Paragraphs 44 & 45 of the affidavit of Ms C
[53] See paragraphs 86 – 96 of the wife’s affidavit. As set out earlier, the maternal grandmother has understated the amounts paid to the wife in the annexure to her affidavit
The wife did receive a personal injury payout during the relationship which she kept a secret from the husband. She received a total of $117,416 in various tranches between 2010 and 2013.
Of these moneys, the wife spent around $18,000 on dental work for herself. The wife also repaid approximately $37,000 to her parents.
The balance was spent generally for the benefit of the family.
The wife paid around $10,000 off her credit card.
She purchased a Motor Vehicle D motor vehicle for just under $45,000. This was later traded in for $35,000 when the parties purchased a Motor Vehicle R at the husband’s instigation in order to save money.
The rest was applied to living and related expenses.
The husband has some basis for complaint about the wife’s expenditure of her personal injuries money. After all, he was borrowing money from his mother and brother to help make ends meet, being ignorant of her payout.
Nonetheless I do not propose to add back the wife’s personal injuries moneys as the husband contended for. The damages were the fruits of her personal chose-in-action. She has to bear the ongoing physical pain the accident caused.
Moreover, I am satisfied that those moneys are long gone, having been spent prior to separation. Most of the moneys were in fact applied for the purposes of the relationship, albeit some of them not particularly prudently.[54]
Contributions post-separation:
[54] A Motor Vehicle D motor vehicle seems extravagant given the family’s financial situation.
The husband sold the Street E, Suburb F property just four (4) days before separation, receiving net proceeds (including the deposit) of approximately $151,800. Pursuant to interim orders, each party received a $40,000 distribution and the balance remains invested in a controlled money account on trust for the parties.
As noted earlier, the husband retained (and spent) the net Street E, Suburb F deposit moneys of $32,163 and his … 2017 Employer M termination payout of $31,026.
The husband arranged for sale of the Street G, Suburb H property, which he cleaned up and undertook some minor renovations on. The property was subsequently sold and the net proceeds of $153,000 form part of the moneys presently invested for the parties in the controlled moneys account. The husband had to meet a capital gains tax liability in relation to this sale.
The husband has continued to rent out the Town S property and meet its associated expenses. The mortgage repayments presently exceed the rental income he receives.
For the wife’s part, she has continued in her role as primary carer of the children. The husband initially paid her informal child support of $200 per week. Subsequent to her return to Town A, he has paid her rent of $530 per week which I accept is significantly more than what his likely child support assessment would have been.
Overall assessment of contributions:
As at the date of trial I would assess the parties’ respective contributions towards the non-superannuation property as being sixty-two percent (62%) to the husband and to thirty-eight percent (38%) to the wife.
Contributions towards the superannuation property:
Initial contributions:
The husband had been a member of Super Fund J since 2000. When the parties commenced cohabitation in 2010, his superannuation was valued at $50,769.[55]
[55] Exhibit “F11”
Any superannuation balance the wife had would have been nominal.
Contributions during the relationship:
I refer to my earlier findings as to the husband’s breadwinner contributions and the wife’s homemaking and parenting contributions.
As at 30 March 2016 – the closest available date to separation – the husband’s superannuation had grown to $145,983. Thus the husband’s fund grew by some $95,214 during the relationship as a combination of:
(a)interest on the pre-existing superannuation balance (in respect of which interest the wife made no contribution); and
(b)further employer contributions made during the relationship (and interest thereon) in respect of which the wife made an indirect contribution.
Post-separation:
The husband lost his employment with Employer M but has continued to be a member of the Super Fund J fund. He has continued to work and his super fund continues to grow.
As at trial the husband’s super fund balance was $204,285.
The wife continues to act as primary parent for the parties’ children. She has not returned to employment and her super fund balance is a nominal $584.
Overall assessment of contributions:
As at trial, I would assess the wife’s contribution-based entitlement to the husband’s super at twenty percent (20%) which in my view properly reflects her support of the husband’s career, including her parenting and homemaking contributions. It also gives appropriate recognition to the husband’s initial superannuation balance which equate to just under twenty-five percent (25%) of the husband’s current balance. I otherwise find the wife to be entitled on a contributions basis to her own superannuation of $584.
Step 4 – Any necessary adjustments for future factors:
The wife is thirty (30) years old. She holds qualifications, but has not worked outside the home since her motor vehicle accident in … 2008. Though I have no medical evidence before me, I am satisfied from her unchallenged evidence that the wife does have some ongoing spinal pain as a result of her injuries. But she also has a conceded capacity to work and in my view she will be in a better position to work once she relocates back to Town S.
The husband is forty-four (44) years old. He is a qualified professional, working for Employer HH which has work all over Australia. He also conducts his own consultancy business although that business is still in its infancy. In the 2018 financial year the husband’s taxable income was just under $49,000.
The husband has a greater earning capacity than the wife although he is fourteen (14) years older than her. I do consider that the wife has some modest income-earning capacity but that at this stage it is not realistic to expect her to exercise it to any serious degree in the short to medium term given her care of the children.
I have set out the assets and liabilities of the parties earlier herein. It would be fair to say that the parties are in modest financial circumstances.
The wife has the ongoing primary care and control of the children. The husband will be paying child support for them as assessed by the Child Support Agency. In his updated oral evidence upon resumption of the trial, the husband said that he has recently been assessed to pay child support of $67 per week. [56]
[56] See exhibit “F2”
Each of the parties lives week-to-week. The husband enjoys a higher standard of living given his superior income. The wife’s standard of living is presently dependent upon the husband’s child support payments, together with Centrelink benefits which have reduced by $140 per week in recent times due to her past overpayments.
The husband has a duty to support his older child [L] in Country W although she turns eighteen (18) in about four (4) years time.
The husband’s role as parent also needs to be protected, whether he be living in Town A or in the Town S region.
It is difficult to make orders which ensure that the parties can maintain a reasonable standard of living. In the absence of employment, the wife is not likely to be in a position to be able to borrow from a bank to purchase her own home. Realistically she will be renting for at least the foreseeable future. The husband would appear to have some modest borrowing capacity but at this stage unless he moves into his Town S property he is also likely to have to continue renting.
I have addressed the payment of creditors earlier in these reasons. In my view the husband’s creditors (his mother and brother) will be able to be paid as a result of the orders that I am proposing to make.
Though only a relatively short relationship, it has nonetheless had a substantial impact on the wife’s income earning capacity – most notably arising as a result of her need to care for the children. The husband’s income earning capacity remains reasonably healthy albeit modest.
I am mindful of the parties’ respective contributions – based entitlements referred to earlier in these reasons.
The orders the court proposes to make will not affect either party’s earning capacity.
In a case involving modest property such as this, percentages can be misleading when considering “future factors”. The more relevant consideration is the underlying dollar value that the percentages represent.
To recap, I have already found that the parties’ respective contributions-based entitlements are:
Non-superannuation property:
(a)Wife = thirty-eight percent (38%) or $137,839. She has already received $42,000 so in dollar terms she has a leftover contributions-based entitlement of $95,839 from the moneys held in trust;
(b)Husband = sixty-two percent (62%) or $224,896. He essentially holds all other assets and liabilities, including the balance of the trust moneys.
Superannuation property:
(c)Wife = twenty percent (20%) or $40,857 from the husband’s superannuation, together with $584 of her own superannuation, totalling $41,441.
(d)Husband = eighty percent (80%) of his own superannuation or $163,428.
The future factors warrant an overall adjustment in the wife’s favour. I consider that an appropriate adjustment is:
(a)In relation to the non-superannuation property, a further cash sum to be paid to the wife of $64,161 so that she receives a total of $160,000 from the trust moneys. This results in her receiving total assets of $202,000 which equates to fifty-five point seven percent (55.7%) of the net non-superannuation property and the husband receiving total assets of $160,735 or forty-four point three percent (44.3%) of the net non-superannuation property.
(b)In relation to the superannuation property, a further split to the wife so that her entitlement is thirty-five percent (35%) of the husband’s superannuation balance at trial, or $61,285. This adjustment reflects the wife’s ongoing primary care of the children and thus her ongoing support of the husband’s career.
The effect of these adjustments is that the husband will retain the assets and liabilities he holds, which includes with the remaining trust moneys of $41,145. He will also retain a base amount of $143,000 in superannuation.
Just and equitable outcome:
Having regard to the findings I have made herein, I consider the above to be a just and equitable outcome.
While the wife contended for a greater cash adjustment in her favour and did not seek a super split from the husband, such an outcome pays lip service to the different nature of those assets. The husband’s superannuation may be a valuable asset but it is not accessible for many years and in the meantime, like the wife, the husband needs access to cash resources. I note that the husband’s superannuation trustee has been accorded procedural fairness.[57]
[57] Exhibit “F10” – although the section numbering has recently changed
Conclusion & orders:
For these reasons the court makes the property settlement orders set out at the commencement of the judgment.
I certify that the preceding three hundred and nine (309) paragraphs are a true copy of the reasons for judgment of Judge Betts
Date: 26 July 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Costs
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Injunction
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Statutory Construction
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