Sherrin & Sherrin
[2007] FamCA 1475
•7 December 2007
FAMILY COURT OF AUSTRALIA
| SHERRIN & SHERRIN | [2007] FamCA 1475 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests FAMILY LAW – PROPERTY – Settlement in relation to marriage |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Sherrin |
| RESPONDENT: | Ms Sherrin |
| FILE NUMBER: | PAF | 336 | of | 2006 |
| DATE DELIVERED: | 7 December 2007 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Justice Stevenson |
| HEARING DATE: | 5 & 6 November 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Thistleton |
| SOLICITOR FOR THE APPLICANT: | Galluzzo Adriano |
| COUNSEL FOR THE RESPONDENT: | Mr Schroder |
| SOLICITOR FOR THE RESPONDENT: | Watson Stafford |
Orders
I make the following orders:
PARENTING
That all existing orders herein be discharged.
That the parties have equal shared parental responsibility for the children:
D born … July 1990
Y born … May 1992
B born … February 1994
That B live with the mother at all times other than the periods specified in order 4, during which he will live with the father.
That B live with the father during the following periods:
4.1from the conclusion of school on Thursday until the commencement of school on Monday in each alternate week during school term time
4.2from the conclusion of school on Thursday until the commencement of school on Friday in each other week during school term time
4.3for one half of all school holidays, being the first half in even-numbered years and the second half in odd-numbered years, unless otherwise agreed
5.1 That the father do all things necessary, within 7 days of the date of these orders, to arrange for Y and the mother to attend a minimum of 3 appointments with Mr G or a therapist in the Relationships Australia organisation.
5.2That the father ensure that Y attends all such appointments as the therapist recommends.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY
that the parties forthwith do all things and execute all documents required to effect the sale, for the best price reasonably obtainable, of the property situate at and known as …, R in the State of New South Wales and to distribute the proceeds of sale as follows:
1. in payment of agent’s commission and expenses
2. in payment of legal costs incidental to the sale
3. in discharge of the mortgage on the title to the property
4. in payment of 56% of the balance then remaining to the wife
5. in payment of the balance to the husband
That in accordance with section 90MT(1)(a) of the Family Law Act whenever a splittable payment becomes payable to the husband from his interest in AMP Investment Linked Super Plan being number … then the wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $20,000 and there is a corresponding reduction in the entitlement that the husband would have had but for these orders.
That having been afforded procedural fairness in relation to the making of this order, these orders bind the trustee of AMP Investment Linked Super Plan being number ….
That orders herein have effect from the operative time, which is 7 days after the trustee of AMP Investment Linked Super Plan being number … receives a sealed copy of these orders.
That the parties do all things necessary to constitute themselves joint trustees and co-signatories of the following Commonwealth Bank accounts:
Child B Youthsaver Account …74
Child B Youthsaver Account …33
Child Y Youthsaver Account …93
Child Y Youthsaver Account …41
Child D Youthsaver Account …25
Child D Youthsaver Account …44
That, subject to these orders, each of the parties is declared to be solely entitled to all items of property and superannuation benefits presently in his and her possession, name or control.
That all material produced on subpoena be returned.
IT IS NOTED that publication of this judgment under the pseudonym Sherrin & Sherrin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAF 336 of 2006
| MR SHERRIN |
Applicant
And
| MS SHERRIN |
Respondent
REASONS FOR JUDGMENT
the proceedings
The husband and the wife are the parents of three children:
D born in July 1990 (17)
Y born in May 1992 (15)
B born in February 1994 (13)
I was not asked to make any parenting orders in respect of D. I was requested by the mother to make an order that Y attend counselling with her and I will do so.
The husband sought a week-about arrangement for B. The wife sought orders to the effect that B live with his father each alternate weekend, from after school on Thursday until the start of school on Monday, and from after school on Thursday until the commencement of school on Friday in each other week. Otherwise, she proposed that he live with her during school terms and share the holidays equally between his parents.
The husband and wife also disagree as to settlement of their property. A fundamental issue is that they each seek to retain the former matrimonial home, the R property. There was also a dispute as to whether $15,600 received by the husband, when he sold certain shares, should be added back to the list of assets. Further, they disagreed as to whether the husband’s Visa card liability should be taken into account when the value of the net pool of property is calculated.
At the start of the hearing the wife contended that money held in bank accounts, said to be operated by the husband as trustee for the children, should be treated as his property. Ultimately, her position was that the children should be beneficially entitled to these funds. The parties agreed that they should be joint trustees and co-signatories in respect of these accounts.
BACKGROUND
The husband, who is now 44, and the wife, who is now 41, married overseas in February 1987. They separated on 31 July 2004 but have continued to live in the former matrimonial home.
At the date of the marriage neither party had any significant assets. The husband was in full time employment and the wife was a final year university student. She commenced full time work as a high school teacher in February 1988.
In 1991 the parties migrated to Australia from overseas. D was about 13 months old at this time and the wife remained at home to care for her. The husband took on full-time employment.
In February 1992 the parties purchased the former matrimonial home, the R property, for $120,000. They borrowed approximately $70,000 from the Commonwealth Bank and the balance came from savings accrued after their marriage.
In 1996 the wife commenced a post-graduate degree. She chose to do her course by correspondence, so that she could remain at home with the children. She completed her degree and commenced part-time employment as a teacher in 1998. She now works full-time at C School.
In 1996 the husband purchased an investment property in Queensland for $160,000 or $146,000, according to himself and the wife respectively. The property was sold in 2002 at a loss of $14,000 on the husband’s version of events. The wife did not seem to have much knowledge of the details of this purchase and sale.
In 1999 the parties decided to demolish their house at R and rebuild a new home. They borrowed $156,000 and the building work began in February 2000. The family occupied rented premises while their new home was being constructed.
In November 1999 the wife took on a second job in administration, in addition to her teaching work. Her hours were from 7:30pm to 1:00am on 5 nights per week. She earned $25,000 gross per annum from this employment.
In February 2002 the husband caused a shed to be built at the back of the new house. He is a Hindu and uses this building for religious purposes. It appears that council approval has never been granted for the shed to be used for religious purposes.
Since they separated on 31 July 2004 the husband and the wife have purchased their own household goods and groceries. The wife has bought these items for D and B and, only recently, the husband began to purchase these supplies for Y as well as himself.
Unfortunately the relationship between Y and her mother is strained at present. In the opinion of the Family Consultant she is “aligned” with her father, who demonstrated clearly that he has a very negative view of the wife. I will refer in more detail to the family dynamics when I consider what parenting orders should be made in respect of B.
THE EVIDENCE AND WITNESSES
The only witnesses were the parties and the Family Consultant, Ms L. I have no hesitation preferring the wife’s evidence to that of the husband, wherever there is any conflict.
I found the husband to be an unreliable witness. Some of his evidence was simply incredible and obviously self-serving. Set out below are some examples of unsatisfactory evidence given by the husband:
· he regularly receives cash for his work for his involvement in Hindu religious activities but produced no documents to establish the amount of this income. He works in the finance sector by profession and claimed that he keeps spreadsheets setting out his religious income. None of these spreadsheets, nor his income tax returns, were tendered in evidence.
· he admitted that he purchases a diary in the Hindi language each year but did not produce these books for 2005, 2006 or 2007. In circumstances where suspicions were expressed that he recorded his religious income in these prayer diaries, it is extraordinary that he would explain his failure to produce them by saying they were either “lost” or “[the wife] has them”. He claimed that he accidentally left the current prayer diary at the home of a friend who has gone to India. I found that explanation convenient and unpersuasive.
· he gave a most unsatisfactory explanation for the fate of cash received for his religious undertakings. He was taken to the contents of his English-language diary for 2005, in which Y recorded various cash receipts in “notes” and “coin”. Y recorded an amount of $775 received on 2 December 2005. The husband’s explanations for the use of such cash receipts variously were……”being put into the children’s accounts”; “given to them to spend” or “kept in a jar at home and spent on holidays, mobile phones and excursions”. By his own admission, this money did not appear in the husband’s income tax returns.
The wife, on the other hand, was a very impressive witness. She gave her oral evidence in a calm, dignified and overtly credible manner.
I had the benefit of a Family Report and oral evidence from Family Consultant, Ms L. She made recommendations as to parenting arrangements for B, which were adopted by the wife. Ms L did not support the week-about regime sought by the husband, for reasons to which I will refer below.
PARENTING ISSUES
APPROACH TO THESE PROCEEDINGS
The legislative provisions which govern parenting issues are contained primarily in Part VII of the Family Law Act. The objects of this Part are set out in section 60B(1) and, in summary, provide that children’s best interests are met by:
· ensuring that children have the benefit of a meaningful involvement of both parents in their lives to the maximum extent, consistently with their best interests
· protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
· ensuring that children receive adequate and proper parenting to help them achieve their full potential
· ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are set out in section 60B(2) and include the following:
· children have a right to know and be cared for by each of their parents
· children have a right to spend time on a regular basis and communicate with both parents and other people significant to their care, welfare and development, for example, grandparents and other relatives
· parents should jointly share duties and responsibilities concerning the care, welfare and development of their children.
These principles are expressed to be subject to the best interests of children.
In deciding whether to make a particular parenting order the court must regard the child’s best interests as the paramount consideration: section 60CA. In determining what is in a child’s best interests, the court must have regard to the primary and additional considerations set out in section 60CC.
Section 61DA(1) obliges the court to apply a presumption of equal shared parental responsibility, when making a parenting order. This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in child abuse or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility: section 61DA(4).
The presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent. If there is an order for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent: section 65DAA(1). If there is an order for equal shared parental responsibility but the child is not to spend equal time with each parent, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent: section 65DAA(2).
THE PRIMARY CONSIDERATIONS
SECTION 60CC(2)
section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents; and
section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no doubt that B will benefit from an ongoing, meaningful relationship with each of his parents. It is implicit in the proposals of each of the parties that they are of this opinion.
Nothing in the evidence satisfies me that there is any need to protect B from physical or psychological harm or exposure to abuse. The husband tried to paint a picture of the wife as a violent, immoral person from whom all three children need protection. His proposal for a week-about regime for B sits most uncomfortably with these alleged concerns.
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views
The Family Consultant reported as follows on her interviews with B:
“{B], aged 13 years and 7 months, presented as a quiet and shy young teen. He is in Year 8 and said that he is good at school. [B] said that he did not know with which parent he wanted to live. Initially he said that he wanted to live with both of his parents and liked the idea of an equal and shared arrangement a week about. He said that each parent helps him with school work, gives him food and stuff, buys him things that he needs and takes him to soccer and karate. [B] said that his father gives him the Hindu culture and religion but complained that there was too much focus on prayers.
On returning on the second occasion, [B] said that he had given more thoughts about the shared living arrangements with his parents. He said that he would like to stay with his mother during the week as she is better at helping him with his homework and spend time with his father on the weekend.”
The husband maintained that B changed his mind after speaking to the Family Consultant and rang her to tell her so. Both parents obviously discussed with B what he told the Family Consultant. The husband went so far as to give the Family Report to B to read, which is a matter of considerable concern.
In her oral evidence Ms L described B as “a compliant 13 year old, who is likely to have come under pressure from one or the other”. She added: “I was not surprised that he changed his mind”.
It seemed to me that the wife’s discussion with B about prospective living arrangements was more likely to have been constructive than was the case with the husband. In my assessment, the wife was probably trying to help B to appreciate the realities of a week-about arrangement. She said that, in the course of her work as a teacher, she has “seen a lot of disorganised students who have that arrangement”. The husband, on the other hand, was more likely to have been putting pressure on B to state views in accordance with his own wishes. The wife said: “I told [B] I was concerned because his father comes home late from work and has prayer functions – I would not be there to cook, clean and get him off his X-Box”.
In my opinion B has been subjected to pressure by both of his parents. It seems probable that he was trying to be fair to each of them, as was the opinion of the Family Consultant. Ms L was of the view, however, that he would adjust quite readily to any orders or agreement relating to arrangements for his care.
I do not consider that B has expressed views independently of parental pressure. As Ms L opined, “[B] is a young 13 year old who is torn between his parents and was vacillating about what he wanted”. I do not regard this factor of particular significance for these reasons.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
B obviously enjoys a close relationship with both his mother and his father. It also seems that he has appropriate sibling relationships with each of his sisters.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I have real concerns about the husband’s willingness and ability to encourage a continuing relationship between B and his mother. Clearly, he holds a most unfavourable opinion of the wife as a mother and a person. He described her to the Family Consultant as “immoral, violent and capricious” and, in cross-examination, he readily agreed to a suggestion that all of the children require protection from her. I am far from persuaded the husband’s attitude can be justified on any objective basis.
In my view the husband has made a substantial contribution to the current difficulties in the relationship between Y and her mother. In the words of the Family Consultant, “[Y] has become quite aligned” with her father. It seems to me to be highly probable that he has encouraged her negative opinions of her mother. In any event, he did not seem to be anxious to take any steps to rectify the situation.
In December 2006 Y attended a counselling session with her mother. The husband agreed that this counselling did not continue and the sole reason seemed to be that Y “said she did not want to go back”. Overall, my impression is that the difficulties in the relationship between Y and her mother did not seem to be of much concern to the husband. In fact, he appeared to be content that he has achieved a situation in which one child is firmly in his camp.
The wife, though, is also due for some criticism in terms of involving the children in the parental dispute. In her interview with the Family Consultant D clearly echoed sentiments expressed by her mother, for example, “he could pray anywhere…..he goes on holidays and leaves the temple behind”.
D told the Family Consultant directly that she believes that her parents have involved the children in their dispute. At least, the wife was prepared to admit that “[D] is right about us involving the children in the dispute”.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
A change to a week-about arrangement for B would mean that he would be subjected to seven continuous days and nights of his father’s negativity towards his mother. These views would be reinforced by Y’s hostile attitude to the wife, as she would be a full-time member of that household.
In my view there is also reason for concern about the extent to which the husband would involve B in religious activities. As noted above, B told the Family Consultant that he experienced “too much focus on prayer” with his father. I am concerned as to the extent to which B could control the level of his participation in religious activities, in a week-about regime.
Another area of concern is what arrangements the husband would actually make for the care of B while he is attending to his religious practices. He gave no evidence about what B would do when he was absent from home due to his involvement in religious practices. It seems to me that it would be undesirable if B is required to accompany his father on all of these occasions and equally unacceptable if he were left in the care of 15 year old Y.
The Family Consultant expressed the view that a week-about regime would result in a lack of structure and routine for B. In explaining the basis for her recommendation she said: “Everyone would know exactly where [B] would be – but with week-about, things would change”. She added: “Things would not be done differently in alternate weeks – there would be a routine about what he would do in terms of schoolwork and extra-curricular activities.”
In reality, the wife is more available to care for B than is the husband. He has the commitments of a full time job and also his religious commitments. The wife, on the other hand, works during school hours as a teacher.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Neither party gave evidence of their intentions in the event that a sale of the R property is ordered. Hopefully, they would each make new living arrangements which will accommodate the children’s current educational and extra-curricular commitments.
Section 60CC(3)(f): the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Much of the evidence relevant to these two subsections has already been canvassed in the context of section 60CC(3)(c). As indicated, I have far more confidence in the wife’s willingness and ability to foster the children’s relationship with their father than vice-versa. Regrettably, there was nothing in the evidence to suggest that the husband’s attitude to the wife is likely to improve in the foreseeable future.
I have already noted my concern as to the husband’s capacity to allow B any meaningful input into the extent of his involvement in religious activities. The husband wants B to follow in his footsteps and become actively involved in Hindu religion. I treat with caution his evidence that he would respect B’s wishes as to whether or not he does become religiously involved in due course.
The husband said that he involves B in prayer sessions and religious instruction at home each day. He also takes him to at least two religious events outside the home each weekend. As I have already noted, B complained to the Family Consultant that there is “too much focus on prayer” with his father.
The husband alleged that the wife would “undermine” B’s religious observance and training and complained that “she has stopped him in the past”. I accept the wife’s evidence that she supports the children’s Hindu heritage, although she is not of that faith herself. It could well be that she has expressed concern about the extent to which the husband involves B in religious observance and training. She was clear that she regards as excessive the husband’s focus on religious activities for B. She said: “I think [B] needs a balance with activities other than prayer sessions”. I share her concerns in this regard.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children’s Hindu background and heritage is obviously very important to the husband. The wife expressed her attitude to the children’s Hindu heritage and religion in these terms in her affidavit:
“I do not follow the Hindu religion. I have never stopped any of the children from following the Hindu religion. I have dropped the children off at functions the husband has officiated. When the husband is away overseas or interstate, I have taken the children to the Hindu temple in […]. I am proud that my children have learned to read and write Hindi and play musical instruments. I have driven them to Hindi school on Sundays to attend Hindi classes. I am aware that the husband alleges that I do not let the children attend prayer functions. This is not the case. After separation the husband and I have been having the children in our respective care each alternate weekend. The husband started to ask [B] to ‘go and pray’ on days when [B] was due to spend time with me and when we were to go out together. I did object to this, when I had arranged to have [B] with me.”
I accept entirely the wife’s evidence as to her attitude of the children’s Hindu heritage. I have no reason to doubt that she will continue with this support in the future.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family
The husband alleged that the wife has perpetrated violence upon Y. When asked by the Family Consultant about this alleged violence, Y “insisted that she had been assaulted by her mother but she did not offer details of the incident”.
There is no doubt that there have been heated arguments between the wife and Y since the separation. In my view, the husband has contributed to this friction by involving Y in the adult dispute and actively encouraging her to take his part. It would seem that he is oblivious to the long-term damage he is causing to his daughter’s emotional wellbeing in this way. It can only be hoped that Y will form a more balanced view of her mother when she is free of the tensions of the situation of the separation under one roof.
Section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
On 26 February 2007 the wife gave an undertaking, without admissions, not to intimidate, stalk or assault Y. The evidence did not reveal what incident led to these AVO proceedings.
CONCLUSION AS TO PARENTING ISSUES
THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
There was no submission that this presumption did not apply or has been rebutted. The proposals of each of the parties as to the time which B should spend with them would be inconsistent with any such submission.
The result is that I am required to consider whether equal time with each parent is in B’s best interest and reasonably practicable. I have already indicated my reasons for concluding that equal time would not be in B’s best interests and I will now summarise my conclusions:
· The wife is able to provide a more balanced environment for B. She can offer a blend of activities with less focus on religious pursuits. At the same time, she will actively support and nurture B’s Hindu heritage.
· The wife is able to provide a structure and daily routine for B. With that basis he will be able to enjoy all of his current activities, including religious training and observances with his father. Significantly, the wife is very well equipped to assist B with his education.
· The wife has a far more constructive and positive attitude toward the husband than he does toward her. Y shares the husband’s negative attitude towards the wife. B would thus be exposed to an environment of unrelenting hostility toward the wife if he lives with each parent for alternating periods of seven days during school term time.
· I agree with the Family Consultant’s opinion that “week-about needs a high level of cooperation, respect and trust between parents and no undermining of the relationship with the other parent”. Clearly, these prerequisites are lacking in the relationship between the husband and the wife.
I am then required to consider whether it is in B’s best interests, and reasonably practicable, for him to spend substantial and significant time with each parent. Section 65DAA(3) gives some guidance as to the meaning of the phrase “substantial and significant time”, although not in any temporal sense. The indication is that “substantial and significant time” involves weekdays as well as weekends and the opportunity for parents to participate in a child’s daily routine, as well as events of special significance.
In my view, the proposal of the Family Consultant as adopted by the wife, will fulfil these criteria. I thus intend to make parenting orders substantially as sought by the wife.
I also intend to make orders which will compel the husband to have Y attend a minimum of three counselling sessions with her mother. I am not prepared to stand by and allow him to continue to damage her relationship with her mother as he has done to date.
SETTLEMENT OF PROPERTY
APPROACH TO THESE PROCEEDINGS
According to guidelines established through a series of leading decisions, the Court is required to determine the following matters on the evidence:
·firstly, the assets, liabilities and financial resources of the parties to the marriage are to be determined
·secondly, all relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other
·thirdly, the matters in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2) must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution
·finally, an order under section 79 must not be made unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order.
THE ASSETS
In 2005 the husband sold shares for $15,600. The only issue as to the assets was whether this money should be added back and treated as a premature distribution to him. He sold four parcels of shares, without the wife’s consent, and deposited the proceeds into the parties’ joint bank account. It was agreed that the husband’s salary was deposited into this account and that he alone made withdrawals.
When asked what happened to the proceeds of sale of these shares, the husband said: “I would have drawn cheques straight away to pay credit cards – I can’t say precisely what I used the credit cards to pay” or words to that effect. No credit card statements were tendered in his case to corroborate or particularise this evidence. The husband’s most recent Visa card statement (exhibit 12) suggested that he uses this card for a variety of purposes, for example, purchase of petrol and groceries and payment of Telstra bills.
The husband maintained that the proceeds of sale of the shares were used by him to meet family expenses and thus should not be added back to the list of assets. I do not find much merit in this submission, given his imprecise evidence as to how he spent this money. Another matter which, in my view, weighs against the proposed add back is the overseas travel which the husband has enjoyed since separation. He has had trips to the USA, Canada, India and Fiji. He suggested that Hindu families invited him to the USA and/or Canada to perform religious services and that these people paid his airfares and met his living expenses. The same cannot be said in respect of his trips to India and Fiji.
Another matter which militates against the proposed addback of the proceeds of sale of the shares should not be added back is that it was agreed that the wife’s bank savings should be included in the list of assets. In my view, there is some force in the submission on her behalf that both parties accrued assets during the marriage and period of separation under one roof. She amassed savings and he purchased shares. It was submitted that the savings and proceeds of sale of the shares should be treated identically, and that both should be added back to the list of assets. I find that it is appropriate to do so.
In his Financial Statement the husband disclosed “household contents” with a value of $2,500 and “personal property” with a value of $1,000. The wife entered “NK” as the value of her “household contents” and “jewellery $1,000” against the item “personal property” in her Financial Statement. I will include the wife’s jewellery and the husband’s personal property in the list of assets. I will not include the husband’s household contents, as it must be the case that the wife possesses similar property to which she has simply failed to ascribe a value.
For reasons set out below, I propose to order a sale of the R property. It was agreed that the selling costs would amount to $16,625, being $15,125 agent’s commission and expenses and $1,500 for legal fees. I will thus include in the table of assets “[The R property] less sale costs - $533,375”.
I thus find the assets of the parties to be as set out below, with the following values:
Non-Superannuation Assets
1.
The R property less sale costs
$533,375
2.
Virgin Blue shares (H)
$3,333
3.
Hudson Timber shares (H)
$1,001
4.
Fairfax shares (H)
$2,400
5.
Camry motor vehicle (H)
$8,000
6.
Toyota motor vehicle (W)
$6,000
7.
Commonwealth Bank Streamline account (W)
$16,620
8.
Commonwealth Bank Award Saver account (W)
$5,912
9.
Jewellery (W)
$1,000
10.
Personal property (H)
$1,000
11.
Proceeds of sales of Shares (H)
$15,600
TOTAL:
$594,241
Superannuation Assets
12.
First State Super (W)
$48,500
13.
4 Superannuation Funds (H)
$88,726
TOTAL:
$137,226
THE LIABILITIES
It was agreed that the joint mortgage on the R property has a payout figure of approximately $110,000. The only other liability of the parties is the husband’s Visa card debt, which was agreed at $9,000.
The husband maintained that his Visa card debt should be taken into account when the value of the net pool of property is determined. He claimed that he incurred this debt largely for family purposes and, effectively, that the wife should therefore share in the liability.
I have difficulty with this submission on behalf of the husband in circumstances where, as already noted, he has travelled overseas for his own purposes since the separation. He has also travelled within Australia, as indicated by some of the charges on his Visa card in September/October 2007, when several debits were incurred in Tasmania. There were also charges in United States currency in respect of “domain registry of America Markham”, whatever that may be.
Another problem with this submission on behalf of the husband is that there was no evidence as to the balance of his credit card debt at the date of separation. On the available evidence it is impossible to make findings as to how the current debit balance arose and for what purpose. In these circumstances I am not prepared to sheet home to the wife any liability for the husband’s Visa card debt.
I thus find that the only liability of the parties is the mortgage of $110,000 on the R property.
FINANCIAL RESOURCES
Neither party holds any financial resource and I so find.
THE CONTRIBUTIONS OF THE PARTIES
It was common ground that the parties entered their relationship with no assets of any significant value. During the marriage they both worked in paid employment. They used their income to acquire their assets and to support their family unit.
Each of the parties contributed to superannuation funds during their cohabitation and have continued to do so since separation. The evidence does not enable me to make findings as to the periods when each party contributed to the five superannuation funds held between them. I can only infer that all of the contributions were made during their marriage and the separation under one roof.
The wife was out of the paid workforce for about six years, between 1991 and 1998. During this period she obtained her Australian teaching qualifications by correspondence. Her unchallenged evidence was that she elected to undertake her degree in this way so that she could continue to be available for the children. She began paid employment as a teacher at the beginning of 1998 and has worked continuously since that time. There was also a period when she held a second job which required her to work for five nights per week.
I have no difficulty in finding that the wife was the primary carer for the children and that she was largely responsible for the household duties during the marriage. The husband was engaged in full time employment and also devoted considerable time to the pursuit of his religious activities.
In my assessment, the contributions of the parties were equal as at the date of separation and I so find. It is then necessary to consider the post-separation contributions. The husband seemed to assert that his contributions exceeded those of the wife in the period between separation and trial. His counsel said in final submissions, however, that there should be a finding of equality of contribution as at the date of trial “with the difference being the superannuation…..”.
It thus may be that the husband asserted that his contributions should be found to exceed 50%, as at the date of trial, because he had paid more money into his superannuation funds. I have little difficulty in rejecting this proposition, even in the absence of evidence to quantify the contributions actually made by the parties to the various funds. In my view it is clearly inappropriate to elevate the husband’s payments into his superannuation funds into a category higher than all of the other kinds of contributions made by the parties throughout their relationship. I regard the husband’s greater payments into his superannuation funds as clearly offset by the contributions made by the wife, when considered overall. For example, she worked a second job at night while the new house was being built. Further, I accept her evidence was that the husband devoted considerable time to his religious pursuits, which must have left her with a proportionally greater responsibility for the running of the household and the care of the children.
In his affidavit sworn on 12 October 2007 the husband itemised payments made by him since separation and annexed copies of a large number of receipts. He seemed to suggest that these payments entitled him to a finding that his post-separation contributions exceed those of the wife although, as noted, his counsel submitted for a finding of equality of contribution as at trial.
The wife maintained that she, too, has paid various expenses since the separation. In particular she said:
“I have continued to pay for all school related expenses such as school uniform, school shoes, books, educational books, stationery, school contributions (fees), excursions, incursions, photograph, subject fees, project costs, bus fares, USB drives, private maths tuition for [D], educational resources and reference, school sporting activities and lunches.”
In her oral evidence the wife said: “I can produce a bag of receipts for bills I have paid since separation – Sydney Water, electricity, school expenses, et cetera”. This evidence was not challenged.
In these circumstances I find that the post separation contributions of the parties are equal. Overall, therefore, I find that the contributions of the parties were equal as at the date of trial.
SECTION 75(2) FACTORS
I have considered all of the factors set out in section 75(2) but I will refer only to those matters which appear to me to be relevant to the present proceedings.
Section 75(2)(a): the age and state of health of each of the parties
The parties are both aged in their 40’s and in good health.
Section 75(2)(b): the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The husband works in the financial sector, is in full time employment and earns $1,280 gross per week. He disclosed in his Financial Statement “earnings from religious services” of $150 per week. As indicated above, I am far from satisfied that he was frank about the actual amount of his earnings from this source. I am of the view, and I find, that the husband’s earning from religious undertakings exceed $150 per week but cannot be quantified on the available evidence.
It is apparent that the husband treats his performance of religious rites as a business. He has an ABN number, a website and a business card. He made an unsuccessful application for exemption from income tax liability when he registered the business name and has recently made a fresh application.
In addition to the cash which the husband receives for his religious work, he gains benefits such as overseas trips and free accommodation. There is no reason at all to suppose that his cash earnings and receipt of benefits in kind from his religious activities will cease at any time in the near future.
The wife is a teacher in full time employment, who earns $1,134 gross per week. These earnings are her sole source of income.
Section 75(2)(c): whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
D, who is 17, will live with her mother and Y, who is 15, will live with her father when the parties establish separate households. The orders which I propose to make will mean that B will spend 5 nights and 9 nights per fortnight with the husband and the wife respectively.
Section 75(2)(d): commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain
Each party presently earns sufficient income to meet his or her needs. Nothing in the evidence suggested that this situation will change when they establish separate households.
Section 75(2)(e): the responsibilities of either party to support any other person
It seems probable that each party will be solely responsible for the financial support of the children who live in their respective households. It may be that the husband will become liable to pay child support for B as a result of the parenting orders which I propose to make.
Section 75(2)(f): subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party
Each party has superannuation benefits, with those of the husband being considerably more valuable than those of the wife. These benefits will increase in value, as the parties will continue their contributions for many years.
Section 75(2)(o): any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
In 2007 the wife paid a debt of $3,565 to Centrelink, which arose because of an overpayment of family allowance. The husband admitted that his late submission of income tax returns in 2004, 2005 and 2006 made it difficult to calculate the correct rate of payment of family allowance. He conceded that he should share responsibility for this debt.
On behalf of the husband it was submitted that no adjustment is warranted in favour of either party pursuant to section 75(2). On behalf of the wife it was submitted that a small adjustment in her favour is warranted, principally on the basis of the husband’s undisclosed income from religious work. She sought an adjustment of 5% in her favour.
I agree with the submission on behalf of the wife that an adjustment of 5% in her favour is warranted, primarily on the basis of the husband’s undisclosed religious income. I also take into account the fact that she paid the whole of the Centrelink debt. I propose to make an adjustment of 5% of the net pool of non-superannuation assets in favour of the wife, on account of section 75(2) factors.
CONCLUSION AS TO SETTLEMENT OF PROPERTY
The result is that I find that the net pool of non-superannuation assets should be divided in the ratio of 55% to the wife and 45% to the husband. I find, further, that the pool of superannuation assets should be divided equally between the parties, by way of a splitting order attaching to one of the husband’s funds.
The net pool of non-superannuation assets is valued at $484,241 of which 55% equals $266,333 and 45% equals $217,908. The husband holds the following non-superannuation assets:
1.
Virgin Blue shares
$3,333
2.
Hudson Timber shares
$1,001
3.
Fairfax shares
$2,400
4.
Camry motor vehicle
$8,000
5.
Personal Effects
$1,000
6.
Proceeds of sale of shares
$15,600
$31,334
and thus requires $186,574 from the proceeds of sale of the R property to bring up his entitlement of 45% of the net pool of non-superannuation assets. This amount equals 44% of the net equity in the R property, allowing for selling costs.
The wife holds the following non-superannuation assets:
1.
Toyota motor vehicle
$6,000
2.
Streamline saver account
$16,620
3.
Award saver account
$5,912
4.
Jewellery
$1,000
$29,532
and thus requires $236,801 from the net proceeds of sale of the R property to bring up her entitlement of 55% of the net pool of non-superannuation assets. This amount equals 56% of the net sales proceeds of the R property.
The wife has approximately $48,500 in superannuation benefits, compared to the husband’s total of around $88,720. As I have said, I consider that the existing superannuation assets should be divided equally between the parties. It seemed that all of these benefits accrued during the marriage and/or period of separation under one roof, that is, when there was still a degree of financial intermingling between the parties.
An approximately equal division of the superannuation assets can be achieved by a splitting order of $20,100 in favour of the wife. I will round this amount off to $20,000.
In dollar terms the differential between the amounts to be received by the husband and the wife from the net pool of non-superannuation assets is around $48,000. In my view this outcome is just and equitable, having regard to the many years in the future when the husband will continue to earn money from religious activity. Neither the court nor the wife was made aware of the true extent of his income from this source.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson
Associate
Date: 7 December 2007
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Procedural Fairness
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Constructive Trust
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Remedies
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