Sidorov and Sidorov
[2008] FamCA 1101
•16 December 2008
FAMILY COURT OF AUSTRALIA
| SIDOROV & SIDOROV AND ANOR | [2008] FamCA 1101 |
| FAMILY LAW – CHILDREN - Equal time FAMILY LAW – CHILDREN - Post separation parenting program FAMILY LAW – PROPERTY - Settlement in relation to marriage |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) |
| Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179 Goode and Goode (2006) FLC 93-277 Briginshaw v Brignishaw (1938) 60 CLR 336 |
| APPLICANT: | Mr Sidorov |
| RESPONDENT: | Ms Sidorov |
| SECOND RESPONDENT: | Mr Farrow |
| FILE NUMBER: | SYC | 3321 | of | 2007 |
| DATE DELIVERED: | 16 December 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | 30 January, 15 April, 6 May, 2 June, 24 October, 11, 12 & 28 November, 4 December 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gruzman of Counsel |
| SOLICITOR FOR THE APPLICANT: | McBride Harle & Martin |
| COUNSEL FOR THE RESPONDENT: | Mr Macaulay, solicitor |
| SOLICITOR FOR THE RESPONDENT: | Pryor Tzannes & Wallis |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Christie of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
Orders
Parenting Orders
All previous parenting orders made in these proceedings be discharged.
The Husband and the Wife have equal shared parental responsibility for the children, L born on … December 1992, M born on … June 1996 and K born on … October 2001.
During the school term in each fourteen day period the children, M and K live with the Husband in week one from 3:00 pm on Friday until 9:00 am on the following Monday or 9:00 am on the following Tuesday if the Monday is a public holiday and in week two from 3:00 pm on Wednesday until 3:00 pm on the following Friday.
Subject to Order 3 hereof during the school term in each fourteen day period the children, M and K live with the Wife.
The children M and K live with the Husband for one half of each school holiday period being the first half in even numbered years and the second half in odd numbered years unless the parties otherwise agree and for the purpose of this order the school holidays are deemed to commence on the day following the last day of the school term and conclude on the day preceding the resumption of the next school term.
The children M and K live with the Wife for one half of each school holiday period being the first half in odd numbered years and the second half in even numbered years unless the parties otherwise agree.
The period of time the children M and K live with the Husband and the Wife pursuant to Orders 3 and 4 hereof be suspended during each school holiday period.
In the event that the children M and K are not otherwise living with the Husband pursuant to Order 5 hereof on Christmas Day then the children live with the Husband from 9:00 am to 3:00 pm on that day.
In the event that the children M and K are not otherwise living with the Wife pursuant to Order 6 hereof on Christmas Day then the children live with the Wife from 9:00 am to 3:00 pm on that day.
In the event that the children M and K are not otherwise living with the Husband pursuant to Order 5 hereof on New Years Day then the children live with the Husband from 9:00 am to 3:00 pm on that day.
In the event that the children M and K are not otherwise living with the Wife pursuant to Order 6 hereof on New Years Day then the children live with the Wife from 9:00 am to 3:00 pm on that day.
In the event that the children M and K are not otherwise living with the Husband pursuant to Order 5 hereof on Easter Sunday then the children live with the Husband from 9:00 am to 3:00 pm on that day.
In the event that the children M and K are not otherwise living with the Wife pursuant to Order 6 hereof on Easter Sunday then the children live with the Wife from 9:00 am to 3:00 pm on that day.
In the event that the children M and K are not otherwise living with the Husband pursuant to these orders on Fathers Day then the children live with the Husband from 9:00 am on that day to 9:00 am on the following Monday.
In the event that the children M and K are not otherwise living with the Wife pursuant to these orders on Mothers Day then the children live with the Wife from 9:00 am on that day to 9:00 am on the following Monday.
If the Easter school holidays do not fall within a term school holiday period then the children M and K live with each of the Husband and the Wife for one half of the Easter holiday period being with the Husband for the same half in each year as the children live with the Husband pursuant to Order 5 hereof and with the Wife for the same half in each year as the children live with the Wife pursuant to Order 6 hereof.
In the event that the children M and K are not otherwise living with the Husband pursuant to these orders on the birthday of each child then the said children live with the Husband on each of the children’s birthdays:
17.1if it falls on a day during the school term from after school until 7:00 pm; or
17.2if it falls on a weekend between 10:00 am and 3:00 pm.
In the event that the children M and K are not otherwise living with the Husband pursuant to these orders on the birthday of the child L then the children M and K live with the Husband on the birthday of the child L:
18.1if it falls on a day during the school term from after school until 7:00 pm; or
18.2if it falls on a weekend between 10:00 am and 4:00 pm.
In the event that the children M and K are not otherwise living with the Wife pursuant to these orders on the birthday of each child then the said children live with the Wife on each of the children’s birthdays:
19.1 if it falls on a day during the school term from after school until 7:00 pm; or
19.2 if it falls on a weekend between 10:00 am and 3:00 pm.
The Husband be responsible for collecting the children M and K at the commencement of the period that the children are to live with him and the Wife be responsible for collecting the children at the commencement of the time the children are to live with her.
In the event that the children M and K are not attending school when residence is to commence/conclude then the Mother’s period of residence shall commence by the Mother collecting the children from the Father’s place of residence at the time provided for by these orders and the Father’s period of residence shall commence by the Father collecting the children from the Mother’s place of residence at the time provided for by the orders and where no time is specified each period of residence shall commence at 2:00 pm.
Each of the Husband and the Wife are restrained from doing any act or thing or saying anything to or in the presence or hearing of any of the children which amounts to a denigration of the other parent or the other parent’s partner.
Each of the Husband and the Wife are restrained from doing any act or thing or saying anything to or in the presence or hearing of any of the children which promotes discussion or is likely to promote discussion of any issue in these proceedings.
Each of the Husband and the Wife inform the other as soon as possible of any serious illness or injury suffered by either of the children M and K while in their respective care.
Each of the Husband and the Wife inform the other as soon as possible of any medical treatment being administered to the children M and K or any specialist appointments which the children are to attend.
Each of the Husband and the Wife provide all authorities and directions necessary for all health professionals consulted by the children M and K to provide to each of the Husband and the Wife all information and material held in relation to each child.
Each of the Husband and the Wife provide all authorities and directions necessary for all schools attended by the children M and K to provide to each of the Husband and the Wife all information and material held in relation to each child including school reports.
Each of the Husband and the Wife inform the other and keep the other informed as to their current residential address and contact telephone number.
Each of the Husband and the Wife keep the other informed of any change of address or telephone number within seven days of any such change.
In the event that either parent proposes to take the children M and K outside the Sydney Metropolitan area then the party so proposing to take the children notify the other parent of their intention to do so and advise of the proposed destination not less than 48 hours prior to the proposed visit.
Each of the Husband and the Wife do all acts and things necessary to ensure that the children M and K undertake their secondary education at a Catholic High School.
Each of the Husband and the Wife do all acts and things necessary to ensure that the children M and K are given the Sacraments of the Catholic Church of Baptism, Holy Communion and Confirmation.
Each of the Husband and the Wife be at liberty to attend any schooling, sporting or religious activity in which the children are involved or participating and to which parents are also able to attend or participate.
The Husband and the Wife and Mr Farrow within 28 days of the date of this order do all acts and things and sign all documents and pay all monies necessary to enrol in and thereafter attend the Unifam Keeping Contact Program.
The Husband and the Wife and Mr Farrow ensure that the children M and K and subject to his wishes, the child L, attend the Unifam Keeping Contact Program as required by the Program.
The Husband and Wife be permitted to provide the report of the Family Consultant Ms B to Unifam and each is required to request the program provider read Ms B’s report.
The Husband and Wife be permitted to provide this judgment to Unifam and each is required to request the program provider read this judgment.
The Husband and Wife each pay one half of $6,383.30 less any amount already paid to Legal Aid New South Wales as to costs of the Independent Children’s Lawyer.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), 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.
Injunctive Relief
Mr Farrow undertakes that he will not make any attempt to enter upon or re-enter or remain at the premises known as N property without the consent of the Husband and he would not approach or interfere with or in any way engage in conduct that intimidated and/or harassed the Husband and/or the child L.
The Husband undertakes that he will not make any attempt to enter upon or re-enter or remain at the premises occupied by Mr Farrow, without the consent of Mr Farrow and he would not approach or interfere with or in any way engage in conduct that intimidated and/or harassed Mr Farrow.
Property
By 4:00 pm on 20 February 2009 the Husband pay to the Wife the sum of $489,748.
Contemporaneously with the payment referred to in paragraph 42 above the Wife do all acts and things and execute all documents and writings necessary to:
43.1.transfer to the Husband all of the Wife’s right, title and interest in the former matrimonial home situate and known as N property being the whole of the land contained in Folio Identifier …;
43.2.transfer to the Husband five ordinary shares held by the Wife in S Holdings Pty Ltd (ACN …);
43.3.resign as a Director of S Holdings Pty Ltd and provide to the Husband the original of all such document(s);
43.4.vacate the property known as X property being the whole of the land contained in Folio Identifier …, and simultaneously deliver the keys to the said premises to the Husband, and ensure the premises are in a reasonable and clean condition.
In the event that the Husband fails to pay to the Wife the amount in paragraph 42 hereof by the due date then the Husband also pay to the wife interest on the amount outstanding calculated in accordance with the Family Law Rules.
The Husband do all acts and things, execute all documents and writings and pay all monies necessary to indemnify and keep indemnified the Wife against all claims, actions, suits or demands that may be made against the Wife arising out of or in relation to her having been a director and shareholder of S Holdings Pty Ltd.
The Husband be entitled to retain all other property including superannuation entitlements held by the Husband and or registered in the Husband’s name as at the date of the orders to the exclusion of the Wife.
The Wife be entitled to retain all other property including superannuation entitlements held by the Wife and or registered in her name as at the date of the orders to the exclusion of the Husband.
IT IS NOTED that publication of this judgment under the pseudonym Sidorov & Sidorov and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: SYC 3321 of 2007
| MR SIDOROV |
Applicant
And
| MS SIDOROV |
Respondent
And
| MR FARROW |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing are applications for final parenting and property orders.
The Husband is Mr Sidorov who was born in July 1969. The Wife is Ms Sidorov who was born in April 1974.
The parties commenced cohabitation in April 1992 and were married in July 1992. The parties separated on 14 December 1993 and resumed cohabitation in October 1997. The parties finally separated in November 2005. The period of cohabitation was about nine years and eight months. The parties were divorced on 19 June 2008.
There are three children of the relationship, L born in December 1992, M born in June 1996 and K born in October 2001. The child L resides with the Husband and the children M and K reside with the Wife. The child L is 16 years of age. The child M is 12 years of age. The child K is seven years of age.
The Wife has re-partnered to Mr Farrow who was born in May 1970. Mr Farrow currently resides with his son D, who is aged 16 years, and his parents in their home in E.
The Husband suffered serious injuries following a motor vehicle accident on 7 November 1985. He has been diagnosed as suffering from hemiparalysis and is paralysed on the left side of his body.
The current arrangement for the care of the children was established by orders made on 18 June 2007. During the school term in each 14 day period, in week one the children M and K live with the Husband from after school on Friday until before school on the following Monday and in week two from after school on Wednesday until after school on the following Friday. Thus the children live with the Husband for five nights in each 14 days. As well, the children live with the Husband for one half of the school holidays and for periods of time on special occasions. The orders also provide for daily telephone communication between the children and their parents and for the Wife to have sole parental responsibility.
The Husband seeks the following orders as outlined in a minute of orders filed on 6 November 2008:
Children Orders
1.That the Applicant and the First Respondent have equal shared parental responsibility for the children, [L] born […] December 1992, [M] born […] June 1996 and [K] born […] October 2001 (“the children”).
2.That the children, [M] and [K] live with the First Respondent:
Week 1: From 3.00pm Monday until 9.00am Wednesday.
Week 2: From 3.00pm Friday until 9.00am Wednesday.
3.That the children, [M] and [K] live with the Applicant:
Week 1: From 3.00pm Wednesday until 9.00am Monday each week.
Week 2: From 3.00pm Wednesday to 9.00am Friday each week.
3.1 That [L] live with the Applicant.
4.That the children spend time together and communicate with each of the Applicant and the First Respondent subject to any wishes expressed by [L] during term 1, 2, 3 and 4 of the school holidays, with the Applicant to have the first half in 2008 and the First Respondent to have the first half in 2009 and alternating each year thereafter.
5.That the children spend time together and live with the Applicant and the First Respondent subject to wishes expressed by [L] for half of the Christmas school holiday periods with the Applicant having the first half commencing in 2008 and the First Respondent having the children live with her for the second half of the said school holidays in 2009 and with same alternating each year thereafter.
6.Notwithstanding the living arrangements in 2 and 3 above, and subject to [L’s] wishes, the children shall spend time together and communicate with the First Respondent on Christmas Day by agreement between the parties and failing agreement from 9.00am to 3.00pm commencing in 2008 and alternating each year thereafter.
7.Notwithstanding the living arrangements in 2 and 3 above the children shall spend time together and communicate with the Applicant on Christmas Day by agreement between the parties and failing agreement from 9.00am to 3.00pm commencing in 2009 and alternating each year thereafter.
8.Notwithstanding the living arrangements in 2, and 3 above and subject to [L’s] wishes the children shall spend time together and communicate with the First Respondent on New Years Day by agreement between the parties and failing agreement from 9.00am to 3.00pm commencing in 2009 and alternating each year thereafter.
9.Notwithstanding the living arrangements in 2, and 3 above, the children spend time together and communicate with the Applicant on New Years Day by agreement between the parties and failing agreement from 9.00am to 3.00pm commencing in 2010 and alternating each year thereafter.
10.That the children spend time together and communicate with each of the Applicant and the First Respondent subject to any wishes expressed by [L] at times agreed between the parties on the children’s birthdays and failing agreement from 3.00pm to 6.00pm with the Applicant if the birthday falls on a weekday and the children live with the First Respondent and from 3.00pm to 6.00pm with the First Respondent if the birthday falls on a weekday and the children live with the Applicant, otherwise from 9.00am to 3.00pm with the Applicant if the birthday falls on the weekend and from 9.00am to 3.00pm with the First Respondent if the birthday falls on the weekend.
11.That the children spend time together and communicate with each parent on their respective birthdays by agreement and failing agreement:-
a. If the children live with the Applicant, and it is the mother’s birthday they shall spend time with the First Respondent from 3.00pm to 6.00pm on a week day and if the mother’s birthday falls on a weekend from 9.00am to 3.00pm;
b. If the children live with the First Respondent and it is the father’s birthday they shall spend time with the Applicant from 3.00pm to 6.00pm on a week day and if the father’s birthday falls on a weekend from 9.00am to 3.00pm.
12.That the children spend time together and communicate with the Applicant on Good Friday and Easter Sunday, and failing agreement between the parties, the children shall spend time with the Applicant from 9.00am to 3.00pm commencing in 2009 and alternating with the First Respondent each year thereafter and subject to any wishes expressed by [L].
13.That the children spend time together and communicate with the First Respondent subject to any wishes expressed by [L] on Mother’s Day for a period of 6 hours from 9.00am to 3.00pm
14.That the children spend time together and communicate with the Applicant on Father’s Day for a period of 6 hours from 9.00am to 3.00pm.
15.That the Applicant be responsible for collecting the children at the commencement of the period that the children are to spend time with him and the First Respondent shall be responsible for collecting the children at the commencement of the time the children are to spend with her.
16.That each party keep the other informed in the event the children require medical attention whilst in their respective care. Such notification shall be provided within 24 hours of the said medical attention being obtained.
17.That the parties keep each other informed of any change of address or telephone number within seven (7) days of any such change.
18.That the parties authorise the children’s schools to provide the other parent with copies of the children’s school reports.
19.That neither parent remove the children [M] and [K] from the Sydney metropolitan area without giving the other parent 60 days prior written notice of intention to take the said children away from the said area.
20.That each of the parties not denigrate one another in the presence of the children.
Injunctive Relief
21.That the First Respondent be restrained from entering upon or re-entering or remaining upon the premises known as [N], New South Wales (“the property”) without the consent of the Applicant.
22.That the Second Respondent be restrained from entering upon or re-entering or remaining upon the premises known as [N] New South Wales (“the property”) without the consent of the Applicant.
23.That the Second Respondent be restrained from approaching and/or interfering with or in any way engaging in any conduct that intimidates, and or harasses the Applicant and/or [L].
Property
24.That within 42 days of the making of Orders, the Applicant pay to the First Respondent by way of alteration of property interest, the sum of $380,000.00.
25.That contemporaneously with the payment referred to in paragraph 24 above:
(a) The First Respondent transfer to the Applicant all of her right, title and interest in the former matrimonial home situate and known as [N] being the whole of the land contained in Folio Identifier […] (“matrimonial home”);
(b) The First Respondent shall do all such acts and things and sign all such documents as may be required to enable the First Respondent to transfer to the Applicant 5 ordinary shares held by the First Respondent in [S Holdings] Pty Limited (ACN […]);
(c) The First Respondent shall do all such acts and things and sign all such documents as may be required to enable the First Respondent to resign as a Director of [S Holdings] Pty Limited and shall provide to the Applicant the original of all such document(s);
(d) The First Respondent shall vacate the property known as [X], New South Wales being the whole of the land contained in Folio Identifier […], and she shall simultaneously deliver the keys to the said premises to the Applicant, and shall ensure the premises are in a reasonable and clean state.
26.That the Applicant be entitled to retain all other property including superannuation entitlements held by the Applicant and or registered in the Applicant’s name as at the date of the orders to the exclusion of the First Respondent.
27.That the First Respondent be entitled to retain all other property including superannuation entitlements held by the First Respondent and or registered in her name as at the date of the orders to the exclusion of the Applicant.
28.That in the event the First Respondent refuses or neglects to execute any Deed, document or instrument, a Registrar of the Family Court at Sydney be appointed pursuant to section 106A to execute any such Deed, document or instrument in the name of the First Respondent and to do all acts and things as may be necessary to give validity to the operation of the Deed, document or instrument.
29.That the First Respondent be solely responsible for all debts owing by her as at the date of orders and indemnify the Applicant in respect of these debts.
30.Such further or other orders as the Court deems fit.
31.That the Respondents pay the Applicant’s costs.
The Wife seeks the following orders outlined in a minute of orders filed on 10 November 2008:
CHILDREN’S ORDERS
1.That [M], born […] June 1998, and [K], born […] October 2001, live with the respondent wife.
2.That [L], born […] December 1992, (“[L]”) live with the applicant husband.
3.That [L] spend time with the respondent wife at such times as are agreed between the parties.
4.That the respondent wife have sole parental responsibility for [M] and [K] (“the Children”).
5.The parties shall do all acts and things necessary to ensure that the Children spend time with the applicant husband at the applicant husband’s residence as follows:
a. Every alternate week from 3.00pm on Friday until 6.00pm on Sunday.
b. Every other week from 3.00pm on Wednesday until 3.00pm on the following Friday.
c. For half of each of the school holiday periods throughout the year at times agreed between the parties, and failing agreement the following regime will apply:
i.For 2008 and each even numbered year thereafter, the father to spend time with the Children for the second week of each school holiday period and each alternate week thereafter of the school holiday period.
ii.For 2009 and each odd numbered year thereafter, the father to spend time with the Children for the first week of each school holiday period and each alternate week thereafter of the school holiday period.
d. During the school holiday periods Orders 5a. and 5b. are suspended.
e. At the conclusion of each school holiday period, the regime contained in Orders 5a. and 5b. shall recommence at the point at which it had been immediately prior to the commencement of the school holiday period.
f. At such other times as agreed in writing between the parties.
6.2008 NEW YEARS EVE
If the Children are spending time with the applicant husband pursuant to Order 5 over the 2008 New Year period, the respondent wife shall spend time with the Children from 3.00 pm on 31 December 2008 to 3.00pm on 1 January 2009.
7.Notwithstanding Order 5, the Children shall spend time with the parties during special occasions as follows:
a. CHRISTMAS
For 2008 and each even numbered year thereafter, the Children shall spend time with the applicant father on Christmas Day by agreement and failing agreement from 9.00am to 3.00pm on Christmas Day.
For 2009 and each odd numbered year thereafter, the Children shall spend time with the respondent mother on Christmas Day by agreement between the parties and failing agreement from 9.00am to 3.00pm on Christmas Day.
b. EASTER
The Children shall spend time with the parent with whom they are not living on Good Friday and Easter Sunday from 9.00am to 3.00pm.
8.Notwithstanding Order 5, the Children shall spend time with the applicant father as follows:
If the Children are staying with the respondent wife:
a. Each year on […] December, […] June and […] October (being the Children’s birthdays) for 3 hours, from 3.20pm to 6.20pm, on a school day or 6 hours, from 9.00am to 3.00pm, on a weekend or school holiday day; and
b. From 10.00am to 8.00pm on Father’s Day and […] July (being the applicant husband’s birthday). If the applicant husband’s birthday falls on a weekday, for 3 hours from 3.20pm to 6.20pm.
9.Notwithstanding Order 5, the Children shall spend time with the respondent wife as follows:
If the Children are staying with the applicant husband:
a. Each year on […] December, […] June and […] October (being the Children’s birthdays) for 3 hours, from 3.20pm to 6.20pm, on a school day or 6 hours, from 9.00am to 3.00pm, on a weekend or school holiday day; and
b. From 10.00am to 8.00pm on Mother’s Day and […] April (being the respondent wife’s birthday). If the respondent wife’s birthday falls on a weekday, for 3 hours from 3.20pm to 6.20pm.
10.To enable the Children to spend time with the applicant husband pursuant to these Orders, the party who has care of the Children shall deliver the Children to the other party at the commencement of the period, unless otherwise agreed in writing between the parties.
11.The parties shall be at liberty to communicate with the Children from 6.00pm to 7.00pm each day.
12.The parties shall immediately inform each other of any serious illness the Children are suffering or any period of hospitalisation of the Children whilst in their respective care.
13.The parties shall keep each other informed of any extra-curricular and/or sporting activities in which the Children are engaged and each party shall make all reasonable efforts to ensure the attendance of the Children at those activities from week to week.
14.The parties are restrained from making derogatory comments about the other party in the presence or hearing of the Children and shall use their best endeavours to stop any other person from doing so.
15.The parties are restrained from discussing the proceedings herein with the Children.
16.Pursuant to Section 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto.
PROPERTY ORDERS
17.Within thirty (30) days of the date of these Orders, the parties shall do all acts and things and execute all deeds, documents and instruments required to transfer all the right, title and interest in the property known as [Y] (“the [Y] Property”) to the respondent wife unencumbered.
18.Within thirty (30) days of the date of the transfer of the [Y] Property to the Wife pursuant to Order 17 above, the parties will do all acts and things and execute all deeds, documents and instruments required for the respondent wife to resign as director of [S Holdings] Pty Limited and transfer her shareholding in [S Holdings] Pty Limited to the applicant husband.
19.Pending the transfer of the [Y] Property to the respondent wife:
a. The respondent wife shall have the sole right to reside in the [Y] Property;
b. The applicant husband shall pay all rates and taxes and any other property expenses in relation to the [Y] Property.
c. The applicant husband shall maintain and pay household insurance for the [Y] Property;
d. The applicant husband shall pay the mortgage repayments relating to the [Y] Property as and when they fall due;
20.Within thirty (30) days of the date of these Orders, the applicant husband shall pay to the respondent wife the sum of $150,000.00.
21.Within thirty (30) days of the date of these Orders, the parties shall do all acts and things and execute all deeds, documents and instruments required to transfer all the right, title and interest in the property known as [N] (“the [N] Property”) to the applicant husband.
22.The parties shall divide their jointly owned furniture and other domestic goods and chattels equally between themselves.
23.The applicant husband and respondent wife will each retain all right, title and interest in their own superannuation benefits, to the exclusion of the other and will forego any claim they may have to any superannuation benefits belonging to or earned by the other.
24.Unless specified in these Orders and except for the purposes of enforcing the payment of any moneys due under these Orders or any subsequent orders:
a. The applicant husband and respondent wife be declared the sole legal and beneficial owners of all items of property presently in their respective possession or control or which each party may in future be entitled to, inherit or receive, including but not limited to money, bank accounts in their own name, shares, real property, motor vehicles, entitlements to superannuation and to financial resources; and
b. Any joint tenancy of the applicant husband and respondent wife in any real or personal estate is hereby expressly severed.
25.The parties will promptly do all acts and things and give all consents and execute all documents in writing necessary to give effect to these Orders.
26.In the event that either party refuses or neglects within 14 days to comply with any of the provisions of these Orders:
a. The Registrar or a Deputy Registrar of the Family Court of Australia at Sydney be appointed pursuant to s106A of the Family Law Act 1975 to execute the deed or document in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the said orders; and
b. The defaulting party shall pay all reasonable solicitor/client costs incurred by the other party for the purpose of enforcing this order, to be taxed if not agreed.
The property at Y is owned by a company called S Holdings Pty Ltd and in order to receive the property the Wife seeks the transfer to her of all of the issued capital of the Company.
In the parenting proceedings the children were represented by an Independent Children’s Lawyer. The Independent Children’s Lawyer submitted that I should make orders in accordance with the recommendations of the Family Consultant.
On Friday 28 November 2008 a minute of orders was filed on behalf of the Independent Children’s Lawyer in which the following was sought:
1.That the Husband and Wife and Mr [Farrow] within 28 days of the date of this order do all acts and things and sign all documents and pay all monies necessary to enrol in and thereafter attend the Unifam Keeping Contact Program (“the Program”).
2.That the Husband and Wife and Mr [Farrow] ensure that the children [M] and [K] and subject to his wishes, [L], attend the Program as required by the Program.
3.That the Husband and Wife be permitted to provide the report of Ms [B] to Unifam and each is required to request the program provider read Ms [B’s] report.
4.That the Husband and Wife each pay one half of $6,383.30 less any amount already paid to Legal Aid NSW as costs of the Independent Children’s Lawyer.
I had the benefit of a Family Report dated 1 April 2008. The Family Consultant, Ms B, made the following recommendations:
1.It is recommended that parents have equal shared parental responsibility for [L], [M] and [K]..
2.It is recommended that [M] and [K] spend time with each parent as per the current interim arrangement.
3.It is recommended that [L] communicate and spend time with the mother and the maternal family as per his wishes.
4.It is recommended that the parents attend mediation and/or counselling to encourage effective communication and resolve any future disputes about major parental decisions.
The Independent Children’s Lawyer submitted that the issues for determination are:
1.Does the father’s disability (and/or reliance on his parents’ assistance) impact on his capacity to provide care as sought in his application?
2.Was the father violent to the mother, as she alleges?
3.Is the father better able to provide for the children’s education, as he asserts?
4.What significance should the Court attach to [L’s] living arrangements when considering those of [M] and [K]?
5.What are the children’s views? Are there any matters which impact on the weight to be attached to those views?
6.To what extent (if at all) does the lack of communication (and/or conflict) between the parents militate against a substantially shared parenting arrangement?
The Family Consultant said that the issues in dispute are:
·Whether or not equal time is a suitable and practical arrangement for the children;
·Sole or joint parental responsibility.
The Family Consultant also said that the issues include poor parental communication, the ongoing parental conflict and the impact of this on the children.
The Husband seeks an equal time arrangement. The Husband seeks that during the school term in each 14 day period the children M and K live with him in week one from 3:00 pm on Wednesday until 9:00 am on the following Monday and in week two from 3:00 pm on Wednesday until 9:00 am on the following Friday. He also seeks equal shared parental responsibility for decisions concerning the children M and K.
The Wife seeks that during the school term in each 14 day period the children live with her and spend time with the Husband similar to the existing arrangement, except that they return to her care every alternate week on the Sunday evening as opposed to 9:00 am on Monday. The Wife seeks that she have sole parental responsibility for decisions for the children M and K. During her interview with the Family Consultant the Wife advised that if the Husband could ensure the children were in bed by 8:30 pm on the Sunday evening then she would consent to the continuation of the existing parenting arrangement on a final basis.
Both parents agree to equal shared time during school holidays and time on special occasions such as birthdays and Christmas Day and so on. However, in some respects how this time is arranged is in dispute. In relation to the school holidays the Wife proposes a week about arrangement and the Husband proposes the children spend half of each holidays with each parent as block time.
Both parents agree that the child L will spend time with and communicate with his mother in line with his wishes.
In the property settlement proceedings the Husband contended that I should assess the contribution based entitlements of each party expressed as a percentage of the net assets of the parties as to 83 per cent to the Husband and 17 per cent to the Wife. The Husband contended that there should then be an adjustment in the Wife’s favour having regard to the “other factors” of a further five per cent of the net assets. In the result the Husband sought an entitlement of 78 per cent of the net assets of the parties and 22 per cent to the Wife.
The Wife contended that I would assess the contribution based entitlements as equal and would then make a further adjustment in favour of the Husband having regard to consideration of the “other factors” of 12.6 per cent of the net assets of the parties. In the result the Wife sought an outcome whereby she would receive 37.4 per cent of the net assets of the parties and the Husband receive 62.6 per cent.
The Husband has total legal costs of $257,590.68 to 4 November 2008 and he has paid $237,735. The Wife has total legal costs of $93,044 and Mr Farrow has $34,000. The Wife has paid $850. The parties have total legal costs of approximately $384,635.
In relation to any conflict between the evidence of the Wife and that of the Husband I prefer the evidence of the Husband. Overall I was of the view that the Husband gave his evidence in a direct and responsive way and did not seek to mislead me. However there were aspects of the evidence of the Wife in respect of which I was left with the impression that what she said was misleading or at least exaggerated.
PARENTING-RELEVANT PRINCIPLES
For a discussion of the relevant provisions of Pt VII of the Family Law Act 1975 (Cth) see Goode and Goode (2006) FLC 93-277.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. In Goode and Goode (supra) the Full Court said that the parents may still be together or may be separated; there will be no court order and the parents may exercise the responsibility either independently or jointly.
However, by virtue of s 61C(3) the joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child, s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3). There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
There are four stated objects in s 60B(1) to ensure that the best interests of children are met. These objects are, first, by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; second, by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; third by ensuring that children receive adequate and proper parenting to help them achieve their full potential; and fourth, by ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
There are five principles specified in s 60B(2) and they are, except when it is or would be contrary to the best interests of a child, first, that children have a right to know and be cared for by both parents; second, that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development; third, that parents jointly share duties and responsibilities concerning the care, welfare and development of their children; fourth, that parents should agree about the future parenting of their children and fifth, that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. Section 60B(3) deals with the right of an Aboriginal or Torres Strait Islander child to enjoy his or her Aboriginal or Torres Strait Islander culture.
For a discussion of s 60B prior to the significant amendments in July 2006 see B and B; Family Law Reform Act 1995 (1997) FLC 92-775. It has been suggested that the objects section now needs to be “given a central place in the interpretation of Part VII of the Act, and this includes how Court’s should reach conclusions about what would be in the best interests of the children who are the subject of decision making”: see Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179; see also the Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006). Parkinson also suggests that the objects provide much more guidance than previously about how to decide disputes about post separation parenting arrangements.
The first primary consideration is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.
Without repeating all of the 13 additional considerations they include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
For a helpful discussion about the interpretation of s 60CC and the relationship between the primary and additional considerations see Butterworths, Australian Family Law, vol 1 at [s 60CC.10] - [s 60CC.27]. Parkinson also comments (supra) at p 181 that consideration of the additional considerations will usually amplify the primary ones at another level of detail or put another way, a detailed examination of the additional considerations may assist in determining the significance of the primary considerations and the orders to make. I observe that in Mazorski v Albright (2007) 37 Fam LR 518 Brown J dealt with the additional considerations (at 543-550) before her Honour dealt with the primary considerations (at 550- 551).
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and specifies that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made.
In Goode and Goode (supra) the Full Court said that there is a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
If I am satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B In determining the second matter, namely whether it is reasonably practicable I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
In Goode and Goode (supra) the Full Court said that in the event that neither the concept of equal time nor substantial and significant time “delivers an outcome that promotes” the best interests of a child then “the issue is at large and to be determined in accordance with” the best interests of the child. The best interests of a child are determined by consideration of the matters in s 60B and s 60CC.
In conclusion, as Brown J said in Mazorski v Albright (supra) at 523 the Act places far more emphasis on the importance of substantial parental involvement in their children’s lives. Her Honour said, with which I agree, at 524:
[15]…There is no doubt that the objects and principles, primary considerations (and a number of the additional considerations) and various statutory provisions relating to the presumption of equal shared responsibility, and the consequences of the presumption’s application, require the court to focus on the importance of maintaining a meaningful relationship between a child and both parents, and on the importance of a child spending substantial and significant time with a parent in order to achieve that aim.
and at 526:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
RELEVANT PROPERTY SETTLEMENT PRINCIPLES
The approach to the determination of an application pursuant to s 79 of the Family Law Act is well established by authority. Section 79(2) provides that I shall not make an order, under the section, unless I am satisfied, in all the circumstances, that it is just and equitable to make the order. I am required, in considering what order, if any, I should make, to take into account the respective contributions of the parties referred to in paragraphs (a), (b) and (c) of s 79(4); the effect of any proposed order upon the earning capacity of the parties; the matters referred to in s 75(2), so far as they are relevant; any other order made under the Act affecting a party or a child, and any child support under the Child Support (Assessment) Act 1989 (Cth).
There is a preferred approach to the determination of such an application which involves four inter-related steps. The first step is that I have to make findings as to the identity and value of the assets of the parties at the date of the hearing. The second step is that I have to identify and assess the contributions of the parties within the meaning of paragraphs (a), (b) and (c) of s 79(4) and determine the contribution based entitlements of each party expressed as a percentage of the net value of the assets of the parties. The third step is that I have to identify and assess the matters referred to in paragraphs (d), (e), (f) and (g) of s 79(4)(d). Pursuant to s 79(4)(e), this includes consideration of the matters in s 75(2). I have to determine the adjustment if any that should be made to the contribution based entitlements of each party established at the second step. The fourth step is that I have to consider the effect of my findings and determinations in relation to the first three steps and resolve what order, in all the circumstances of the case, it is just and equitable to make.
BACKGROUND
On 7 November 1985 when he was 16 years of age the Husband was involved in a motor vehicle accident and suffered severe physical injuries. The Husband suffered head injuries and other injuries including fractures. After being admitted to hospital for three months in special care he was transferred to Rehabilitation Unit for physiotherapy, occupational therapy and speech therapy. He was discharged on 10 July 1986. He then undertook outpatient physiotherapy for two years and during this period relied upon his parents for full time care and support. He remains paralysed on his left side. He walks with the aid of a crutch and also uses a wheelchair to assist him in travelling distances. He also suffers from a speech impediment.
In October 1989 the Husband received in excess of $1 million in compensation arising from the motor vehicle accident. The damages award enabled the Husband to purchase real estate and establish S Holdings Pty Ltd to invest a portion of his damages award.
From the compensation the Husband spent approximately $25,000 for modifications to the home of his parents at M Street where he was then residing. A further sum of $18,000 was spent on the purchase of a motor vehicle for the Husband. The Husband’s former solicitors invested on his behalf with the Commonwealth Bank, Advance Bank and BT Financial Services, for a period of time, the balance of the proceeds of his settlement of approximately $1,084,770. He received a further sum of $9,114.
In October 1989 the Husband purchased X property for a price of $404,000. In approximately November 1989 the Husband’s parents and sister moved into the property.
After December 1989 the property at X was divided into two flats. The upstairs section was rented out and remains rented. The Husband and his family lived in the downstairs section. The Wife and the children M and K currently reside in the downstairs section of the property.
On 17 May 1991 the Husband purchased H property for a price of $160,000. It was sold in May 1995.
In February 1992 the Husband and the Wife commenced seeing one another. In or about April 1992 the Wife commenced to live with the Husband at X property.
The Husband contended that his mother carried out all cooking and housecleaning for the entire family including the Husband and the Wife. The Wife contended that the Husband’s mother contributed to cooking and housecleaning for the Husband and the Wife, for a period of approximately two months.
In June 1992 S Holdings Pty Ltd was incorporated. The Husband holds 95 per cent of the issued shares and the Wife holds five per cent.
In June 1992 the Husband’s parents moved out of X property and resumed living in their home at M Street. The Husband said that the Wife then undertook domestic duties. The Wife submitted that this was corroboration of her contention that she made a significant contribution to the care of the Husband. In fact during the relationship the Wife received social security and in particular a carers pension.
The Husband’s father regularly attended the home at X and attended to gardening and maintenance. After June 1992 the Husband attended his parent’s home on a daily basis for assistance with his exercise program.
In July 1992 S Holdings Pty Ltd purchased Y property for a price of $222,000. To pay the cost a loan was obtained from the St George Bank for $160,000.
In July 1992 the Husband and the Wife were married.
In December 1992 the child L was born. The Husband testified that he was limited in his physical ability to attend to the majority of the needs of the child when he was a baby, although he did assist from time to time with the child’s care.
In March 1993 S Holdings Pty Ltd purchased V property for a price of $187,000. The Husband paid a deposit of 10 per cent of the price and balance was borrowed from the St George Bank. The parties commenced to live in this property upon completion of the purchase. The parties moved to this property so they could be closer to the Husband’s parents and so the paternal grandparents could continue to provide assistance including assisting the Husband with his rehabilitation.
After the parties commenced to reside in the home at V the Wife continued to undertake the cooking of meals and housecleaning and also shopping. The Husband’s father continued to undertake house maintenance and repairs and also gardening. As well from time to time the Husband’s mother cooked meals at her home for the parties.
After the parties commenced to occupy the home at V, both the upstairs and downstairs area of the property at X were leased. Initially a real estate agent was retained to assist in locating a tenant for the downstairs area and collecting the rent. Later the Husband would drive the Wife to the property to collect the rents from both tenants. The Husband contended that the rents were retained by the Wife and that she used the funds to pay for her personal expenses, household shopping and also household bills when they were not paid from the Husband’s income.
The gardens of the property at X were maintained by the tenants of one flat area. The Husband was responsible for retaining and giving instructions to tradespersons such as electricians and plumbers. The Husband, with the assistance of his father, organised all repairs that needed to be carried out. As well the Husband’s father undertook painting of the property.
On 31 July 1993 S Holdings Pty Ltd purchased W property for a price of $175,000. The property was sold in July 1997.
On 14 December 1993 the parties separated. The Husband commenced to live with his parents in their home at M Street. The parties lived separately and apart until October 1997. During this period of separation of almost four years the child L lived with the Wife during the week and lived with the Husband every weekend.
In 1994 the Husband undertook or completed a course at a TAFE.
In or about May 1995 the Husband sold H property for a price of $195,500. The Husband applied the proceeds of sale to repay the mortgage obtained from the St George Bank by S Holdings Pty Ltd to purchase V property.
On 12 June 1996 the Husband commenced proceedings in the Family Court for property settlement. On 29 October 1996 the Husband filed in the Family Court an application for divorce. On 23 January 1997 the Husband filed a notice of discontinuance of the divorce proceedings. On 13 February 1997 the Husband and the Wife both filed notices of discontinuance of the property settlement proceedings. The Husband paid approximately $20,000 from the proceeds of sale of H property to lawyers in relation to the costs of the family law litigation. The Husband also paid the legal costs of the Wife.
In July 1997 S Holdings Pty Ltd sold W property for a price of $240,000. The proceeds of sale were applied to repay the mortgage loan from the St George Bank and also a land tax bill for $24,000. The Husband also purchased a Honda motor vehicle for $35,000. This motor vehicle was subsequently given to the Husband’s father in repayment of a loan for $10,000 which the parties received during the construction of the former matrimonial home.
In September 1997 the Husband purchased V property from S Holdings Pty Ltd for $210,000. No monies were paid on completion of the purchase because the Husband had previously paid out the mortgage that S Holdings Pty Ltd obtained from the St George Bank to purchase the property. As seen, in or about May 1995, the Husband applied the proceeds of sale of H property to repay the mortgage obtained from the St George Bank by S Holdings Pty Ltd to purchase V property. The Husband sold this property in May 1998.
In or about October 1997 the Husband and the Wife resumed cohabitation. The parties commenced to live at X property. The parties resided in the upper section of the property where they remained until late 1998 or early 1999 when they commenced to live in the former matrimonial home at N.
The Husband said, and I accept, that the Wife engaged in leasing the downstairs section of X property, which was known as Flat A. She advertised the property, took enquiry phone calls and located the tenant. In her evidence in chief the Wife testified that the parties were both responsible for the leasing and day to day management and maintenance of the units at X.
After the parties reconciled the Husband’s father usually attended the home at X and carried out household maintenance and gardening. The Husband’s mother continued to cook meals at her home which she sent to the Husband and the Wife. The Husband and/or the Husband’s father usually drove the child L to and from school. The Husband continued to attend his parent’s home to undertake his exercise program.
On 22 May 1998 the Husband sold V property for $375,000. The Husband applied the proceeds of sale towards the cost of purchase of the former matrimonial home at N and also the costs of construction of a house on the property.
In June 1998 the child M was born. After the birth of the child M the parties continued to receive assistance from the Husband’s parents.
In August 1998 the former matrimonial home at N was purchased in the joint names of the Husband and the Wife for a price of $270,000. In order to pay the cost of the purchase the Husband used the proceeds of sale of the property at V.
In 1998 and 1999 a home was constructed on the property at N. The house that was located on the N property was a fibro construction. It was cut in half and later sold for $2,000. A new house was then built. The construction costs of the new home were paid for by the Husband from the proceeds of his compensation settlement and also the proceeds of sale of the property at V.
The Husband received considerable assistance from his family in relation to the construction of the home at N. The Husband’s father worked on the site everyday and received no remuneration for what he did. The Husband gave evidence of the manual unpaid work undertaken by his father which included assisting with laying the footings, helping lay the concrete, cleaning and carrying bricks away, painting the entire house, removing debris and assisting tradespeople. The Husband’s father would usually be on site from about 6:00 am until late at night.
The Husband’s brother-in-law Mr JK also undertook physical work associated with the construction of the home including digging the footings and carrying materials and assisting with the painting. The Husband’s brother-in-law Mr DC laid the gyprock for the ceilings. The Husband’s brother-in-law Mr MJ constructed the frames for the roof of the house. The Husband’s two brothers and six of their employees also spent time on the site undertaking labouring work for which they received no remuneration. None of the Husband’s family members were paid for the work which they did.
The Wife’s father owned a shop and the Husband purchased from the shop second materials and factory seconds for the construction of the home. In an affidavit the Wife swore on 24 July 2007 she testified that the materials supplied by the shop were “purchased”. However in an affidavit the Wife swore on 31 July 2007 she testified that the materials supplied by the shop were “free of charge”. At first in cross-examination she accepted that what she said in this second affidavit was wrong. However, in re-examination an attempt was made to lead evidence of the Wife to the effect that the parties purchased items from the shop at a significantly reduced price or that some items were gifted. No evidence was given by the Wife’s father.
From time to time the Wife’s father also worked on the site and he received no remuneration for the work that he did. The Wife’s brother undertook work on the site from time to time and he was remunerated for what he did. The Wife’s brother also provided employees who were paid by the Husband for day labour during construction of the home.
The Husband and the Wife spent considerable time inspecting and choosing materials for the construction of the home and seeing suppliers. In cross-examination the Wife testified that she did a considerable amount of physical work associated with the construction of the home. The Husband’s parents cared for the children L and M for the majority of the time that the home at N was being constructed.
The parties commenced to live in the new home at N in about late 1998 or early 1999. When the home was completed the Husband’s parents assisted the parties to move in.
After the parties commenced living in the new home at N the Wife continued to attend to household tasks. The Husband’s father regularly attended the home to undertake gardening and home maintenance. The Husband’s mother continued to cook meals for the Husband and the Wife on a regular basis.
On 4 June 2001 the Husband commenced employment on a casual basis with the local Council working 21 hours per week. After about three months with the Council the Husband was given a permanent part time position. He continued working for 21 hours per week. During the relationship the Wife did not undertake paid employment.
In October 2001 the child K was born. After the birth of the child K the Husband’s parents assisted the Wife with household tasks including caring for the children L and M on a daily basis for about two to three months. The Husband contended that thereafter the pattern of assistance received from his parents was that his father attended to home maintenance and repairs including gardening and his mother cooked meals for the parties at her home on a regular basis and sent the meals over to the parties with the Husband’s father.
In July 2002 the Husband lent the Wife’s parents $10,000 to enable them to have an overseas holiday in Croatia. The Wife’s parents repaid the money to the Wife.
The Husband contended that in about August 2005 Mr Farrow and his family commenced a friendship with the Husband and the Wife. The child L and the eldest son of Mr Farrow played soccer together and attended the same Catholic school.
Mr Farrow testified that in about November 2005 he and the Wife commenced a relationship.
The Husband gave evidence about an incident that occurred in November 2005 when the child L telephoned him at work and they had a conversation about replaying a message on an answering machine. Later that day when the Husband returned home the child L played for the Husband a tape recording on a telephone message answering machine and the voices were those of the Wife and Mr Farrow. An incident then occurred involving the Husband and the Wife and the Husband admitted that he verbally abused the Wife. In an affidavit the Husband swore on 30 July 2007 he gave evidence about the tape recording incident. The Husband set out in the affidavit what the Wife said and what Mr Farrow said. The Husband contended that he was “shocked” at the time and it was when the child L replayed the message that the Wife ran into the room and pulled the phone chord out of the socket and it was then that the Husband verbally abused the Wife.
In an affidavit sworn by the Wife on 31 July 2007 she testified that she did not recall the telephone message answering machine incident and further she did not have the alleged conversation with Mr Farrow that was described in the Husband’s evidence. The Wife said “I deny the allegations contained in that paragraph”. On 16 February 2007 in the Local Court at Sutherland when the Wife was being cross-examined, it was put to her “You know that your son [L] who was then 12 years old overheard the sexually explicit conversation recording on the answering machine at the home and that conversation was between you and [Mr Farrow] wasn’t it?” and the Wife answered “Yes there were many conversations and [the husband] is aware that [Mr Farrow] was calling me”. It was then put to the Wife that the child L listened to sexually explicit conversations recorded on the answering machine and the Wife said “that’s not correct”. The Wife admitted that there was a recording of a telephone conversation she had with Mr Farrow but denied that it was a “sexual conversation”. The Wife contended that at the time when it occurred “we were all friends”. In fact in her affidavit of 31 July 2007 she said that on 25 December 2005 Mr Farrow, his Wife and his children celebrated Christmas with the Husband and the Wife and their children.
In his affidavit the Husband set out precisely what he heard when he listened to what was recorded on the answering machine. I asked Mr Farrow to read what the Husband testified in his affidavit he heard on the recording and I then asked him: “The first four lines. Just let me know when you’ve finished reading it. Was that the conversation?” and he replied “That’s the conversation that we were talking about before”. However, Mr Farrow denied that what the Husband testified was correct.
The Husband contended that the parties’ marriage deteriorated after the incident. The Husband believed that the Wife continued her relationship with Mr Farrow.
On 15 June 2007 in the Local Court at Sutherland, Mr Farrow gave evidence that in May 2006 he and his former wife ceased to reside in the same residence.
The Wife contended that during the marriage there was a history of the Husband being physically and emotionally violent towards her. In her affidavit of 14 May 2007 the Wife then gave evidence about an incident in early July 2006 when she contended that the Husband “attempted to run me down in his motor vehicle”. The Wife was referring to an incident that occurred on 11 July 2006. As to the incident that occurred on 11 July 2006 the Husband said that he was involved in a motor vehicle accident and the Wife and Mr Farrow were present at the scene of the accident. As well the Wife alleged that there was an incident in the kitchen of the former matrimonial home involving a knife and that the Husband had been violent to her in the past. The Husband denied the Wife’s allegations.
A detailed description of what occurred on 11 July 2006 is set out in a judgement delivered in the Local Court at Sutherland on 18 September 2007. In the judgment findings were made in relation to the incident. In the judgment the incident involving a knife, which it was contended occurred in early July 2007, was also described and dealt with. The incident had not been reported to the Police.
There was put in evidence a “COPS” report from the New South Wales Police Service (Exhibit K) in which it was recorded that on 11 July 2006 in the presence of police officers the Wife and Mr Farrow began yelling abuse at the Husband. As well Mr Farrow approached the Husband and threatened to kill him. The child L was present and heard what was said. It was also reported that Mrs Farrow was present and she was yelling abuse at the Wife and Mr Farrow. The Wife gave evidence on 15 June 2007 in the Local Court that Mr Farrow had a “bad temper”.
On 11 July 2006 the Wife also told the attending police officers that she did not fear for her personal safety. The Wife said that she was leaving with the children to travel to Croatia for about four weeks and that she only wanted the Husband to stay away from the home “until 6pm” so as to give her time to “finish packing”. In her affidavit of 14 May 2007 the Wife gave no evidence explaining what occurred on 11 July 2006.
The Wife testified that she was going overseas on 11 July 2006 and Mr Farrow wanted to see her before she left. The Wife and Mr Farrow had met at this particular location where the incident occurred on occasions before 11 July 2006.
It will be seen shortly that on 22 November 2006 the Wife initiated a complaint and summons for an apprehended violence order against the Husband and his father. The complaint against the Husband’s father was dismissed by consent. The Husband, without admissions, consented to interim orders being made in the Local Court against him. He was not legally represented on the day he went to court. The Husband then defended the complaint.
By letter dated 31 October 2006 the solicitors for the Wife wrote to Centrelink and advised that the Wife and the Husband separated in July 2006. On 31 October 2006 the Wife executed a statutory declaration in which she declared that she and the Husband separated on 11 July 2006. In an affidavit sworn by the Wife on 24 July 2007 she contended “after separating from [the husband] in July 2006, and until 22 June 2006” she lived in the home at N with the children M and K.
From 12 July 2006 to 11 August 2006 the Wife and the children M and K were absent from Australia. They were in Croatia. The Wife had pre paid for the trip. Thus the trip had nothing to do with the incident on 11 July 2006. The Wife gave no evidence explaining why the child L did not accompany her. The Wife testified that the money to pay for the costs of the trip came from her father.
On 11 August 2006 the Wife resumed living in the former matrimonial home at N with the children K and M. Between August and December 2006 the Husband and the Wife lived separately and apart but remained living under the same roof.
In her affidavit sworn on 14 May 2007 the Wife contended that after the incident that occurred on 11 July 2006 she had $1,000 in her wallet given to her by her father and “under the influence and pressure of [the husband], [L] stole this money from my wallet”. The child L was 13 years old at the time and the Wife contended that he later confessed to taking the money. The Wife also said “I do not understand how [the husband] could encourage such behaviour and believe that this was totally inappropriate”. In cross-examination the Wife admitted that she had no evidence that the Husband was in anyway involved with what happened and that what she stated in her affidavit about the Husband’s knowledge and awareness of what had occurred was an assumption on her part. She gave no evidence of any conversation with the Husband about this theft of money by the child. She also contended that she never retrieved the money. The incident involving the theft of money must have taken place after 11 August 2006.
In her affidavit of 14 May 2007 the Wife testified that in November 2006 the Husband punched her in the face. The Wife also testified that on a number of occasions the Husband forced her into a corner and hit her with his walking stick. The Wife said that on one occasion the Husband threatened her with a knife in the presence of the child K and on another occasion “cut up” her bras with scissors. I have considered carefully the evidence in chief of the Wife and the only incidents of domestic violence identified in the evidence are those that I have just described and the incident on 11 July 2006.
The Husband was cross-examined by counsel for the Independent Children’s Lawyer about the incidents identified by the Wife and he denied the Wife’s contentions. For example he said that he did not “cut up” the Wife’s bras with scissors. Further he testified that he never forced the Wife into a corner and hit her with his walking stick. In fact he said that if he did try to hit the Wife with the walking stick he would fall over.
On 22 November 2006 in the Local Court at Sutherland a Complaint and Summons for an apprehended violence order under the Crimes Act 1900 (NSW) was issued against the Husband. The Wife was identified as a protected person and the Husband was named in the summons as the defendant. In the summons it was stated that the circumstances of the complaint was “general history of violence and harassment, including specific examples (most recent and most serious instances)”. The “specific examples” in relation to the “Details of Complaint” were not identified in the Complaint and Summons. However, it referred to “Event NO E28689545”. There was put in evidence a “COPS” report dated 13 November 2006 and it is described as “Event Ref No: E28689545. In this report it is recorded that on 13 November 2006 the Wife attended at the Police Station requesting an apprehended violence order against “her ex-husband”. In the report it was suggested that on 7 July 2006 the Husband and the Wife were arguing and the Husband “head butted” the Wife. It was also stated that during the same incident the Husband retrieved a knife from a kitchen drawer and pointed it at the Wife and as a result the Wife cut her finger whilst taking the knife off the Husband. However it was also recorded that the Wife did not report the incident because she felt sorry for the Husband. The Wife gave no evidence about an incident on 7 July 2006 and nor did she suggest that in relation to the knife incident the Husband “head butted her”. The report also referred to the incident of 11 July 2006 and it was recorded that “the incident was investigated and police at the scene noted the victim and [Farrow] making threats to kill” the Husband. It was then recorded that at about 8:30 pm on 13 November 2006 the Husband said to the Wife “I swear on my mother’s life that I’ll hurt you and get you” and the Wife told the Husband that she was going to report the matter to the police and a short time later the Wife reported at the Police Station. The Wife gave no evidence before me about what is recorded in the report as having occurred on 7 July 2006 nor what occurred on 13 November 2006.
In November 2006, after the commencement of the proceedings for apprehended violence orders, the Husband and his father and the child L commenced to live in the home of the paternal grandparents at M Street.
On 6 December 2006, being the return date of the Compliant and Summons issued on 22 November 2006, an interim apprehended violence order was made in the Local Court at Sutherland against the Husband. The Husband appeared without legal representation and consented to interim orders. Subsequently after a four day hearing during 2007 the application for a final apprehended violence order was dismissed.
The Family Consultant said that the parents and the paternal grandparents all present with conflicting accounts of living arrangements between November 2006 and May 2007. However, in December 2006 the child L elected to reside with the paternal grandparents in their home at M Street. The Husband resided with his parents in their home at M Street between 3 May 2007 and 23 June 2007 after which he returned to live in the home at N. The child L currently resides with the Husband.
The Husband testified that on 25 December 2006 the Wife and the children M and K slept away from the home at N and continued to sleep away from the home until 30 April 2007 when they slept for one night at the home. The child L remained with the Husband.
In her affidavit of 14 May 2008 the Wife said that she was “scared” to sleep in the home at N as she did not want the Husband to enter the home and she therefore slept the “majority of nights at friend’s homes” and attended at the N home during the day. The Wife gave no evidence as to where she and the children M and K stayed over night.
The Family Consultant said that the Wife said that she and Mr Farrow have been officially “dating” since approximately December 2006, although the Wife acknowledged that this relationship commenced prior to her and the Husband separating for the final time. The Wife said that Mr Farrow, his ex-wife and their three children had been well known to the family prior to her involvement with him. The Wife did not say when the relationship commenced. Mr Farrow contended that the relationship commenced in November 2005.
On 1 February 2007 the Husband attempted to change the locks of the matrimonial home and the Wife arrived at the home and called the Police. The Husband then arranged to give the Wife a key to the home. The Wife contended that the incident took place on 2 March 2007. The Wife contended that the Husband and the child L were at the home and that her attempts to get the Husband to open the door failed. The Wife did not suggest that she feared for her safety.
On 16 February 2007 in the Local Court at Sutherland the summons against the paternal grandfather for an apprehended violence order for the protection of the Wife was withdrawn. The Wife gave some brief evidence and testified that she had no fears for her personal safety in regards to the paternal grandfather. However the summons for an apprehended violence order against the Husband was proceeded with and the hearing commenced on 16 February 2007 and continued on 15 June 2007 and 4 September 2007.
In March 2007, during the school term, the Wife and the children M and K went to Queensland with Mr Farrow. The Wife did not inform the Husband. In July 2007 the Husband found out about the trip when he was told by the child M. The Wife said that she decided to take the children to the Gold Coast “to give them a chance to relax” as she noted that they were upset by the separation. However the Wife did not inform the Husband. The children were absent from school for five days between 19 and 23 March 2007.
On 30 April 2007 the Husband received a telephone call from Mr Farrow and during the conversation Mr Farrow said “I have something to tell you” and the Husband said “fuck off” and then hung up. However Mr Farrow again telephoned and said to the Husband “Listen […], you need to talk to me. It’s important. It’s important don’t hang up”. Mr Farrow then said “about your stupid wife. She had an abortion with my baby when she was with you. Your sister in law […] knows all about this. She wants to take you for all she can. I’ll back you up in court”. The Husband then hung up the telephone. Mr Farrow was cross-examined about this conversation and he admitted that he did telephone the Husband and also admitted that he told the Husband that the Wife had an abortion. Mr Farrow contended that his excuse was that he and the Wife had an argument and he was angry with the Wife.
The following exchange occurred during cross-examination of Mr Farrow by counsel for the Husband:
Alright. Now, why did you ring and tell [the husband] that his Wife had had an abortion?...Because I was upset.
Did you think that that was something appropriate in the circumstances to say to [the husband] about his Wife?...No. I was selfish and I was wrong and I repented for it.
And – well, how do you think [the husband] felt at that time?...He would have been sad, upset. He was angry enough at the time anyway, so I’m not sure how he would have felt. I’m not [the husband]. I can’t think for him and take his feelings.
Was it something that you intended to do to cause him some hurt?...No, to cause [the wife] hurt.
Well, how do you think telling [the husband] his wife had had an abortion, whether it was your baby or somebody else’s would cause hurt to [the wife]?...Because she didn’t want me to say anything.
Because [the wife] didn’t want you to say anything? About what?...About the abortion.
So, you are breaching some confidence with [the wife]?...Yes, at the time, I did.
…to [the husband] knowing that it would cause [the husband] to react and somehow?...I didn’t think of [the husband’s] feelings at the time, I was thinking of [the wife]. At the time, I wasn’t with the Lord and I was doing the wrong things.
Some of the issues raised by this evidence were not explored.
The Wife claimed that on 3 May 2007 Mr Farrow first visited the property at N. The Husband contended that Mr Farrow commenced to live in the home at N. However this was denied by both the Wife and Mr Farrow.
On 3 May 2007 the Wife telephoned the Husband at his parents’ home and asked him “Where is the toaster, sandwich maker” and the Husband replied that he did not know. The Wife again telephoned the Husband and accused him of taking the toaster and the Husband again repeated that he did not have it. The Wife had a further telephone conversation with the Husband and during this third conversation she said “[Mr Farrow] is moving into the house. This way you can’t take anything out of the house” and the Husband did not reply and hung up the telephone. The Wife admitted in cross-examination that she told the Husband that Mr Farrow was going to move into the matrimonial home.
The Family Consultant agreed that all of what she described is also necessary for a “five/nine arrangement” but that:
…[w]here one parent predominantly has the care of the children during the week, then they are predominantly the ones that need to be aware of that information. There's different types of information that may need to be shared but certainly, for children to have good long-term outcomes regardless of the arrangement, there certainly needs to be a low level of parental conflict, a high level of cooperation and good communication.
The Family Consultant said that in this case the children “sense that their parents are in conflict”. The Family Consultant said that the conflict can have a variety of impacts on children and:
…[a]nd obviously the longer - or the more they are exposed to the conflict, the more they are aware of protracted ongoing litigation, the more they are involved in the conflict by one or other of the parents, it can have a range of internalising and externalising symptoms which can range in the - result in a range of problematic outcomes, both socially, emotionally, psychologically, behaviourally. To give you some examples of that, they can have poor problem solving skills, have difficulty in developing appropriate conflict resolution skills, they can have fewer interests, fewer social activities, it can impact on their self-esteem, their sense of self-worth. They can have poor reading skills or academic problems at school. It's very hard to concentrate on learning the skills that you need to learn at school when you're preoccupied about what's going on at home, or worried about one or other parent's emotional wellbeing. Physical health, they may develop psychosomatic complaints, headaches, stomach aches, they may feel sick, tired, listless, and certainly as they approach adolescence, it can be associated with a higher level of risk taking behaviours, make them engage in behaviours that parents typically wouldn't want their children to behave in, such as alcohol and drug use or promiscuous behaviour.
In cross-examination by counsel for the Independent Children’s Lawyer as to whether the amount of time the children spend in each household may impact on the children, the Family Consultant said:
It’s the exposure to the conflict that exists between the households which will significantly impact on that. And certainly if they were in one home where a parent was making a number of derogatory comments about the other parent, was unsupportive of the other parent's relationship with the children, have negative convictions about the other parent which the children were aware of and exposed to, that all, I guess, falls under the category of conflict and being exposed to conflict.
The Family Consultant suggested that ideally if that were the case, the amount of time that the children were to spend in the household where they were exposed to that derogatory picture of the other parent would be reduced.
This is a difficult case. I have taken into account all of the statutory considerations I have dealt with such as the views of the children. There is no issue that the children M and K should spend substantial and significant time with each parent and I have no doubt that this is in the best interests of each child. However, I have come to the conclusion that at the present time it is not in the best interests of each child that they spend equal time with each parent. The matter that ultimately persuades me to this conclusion was put on behalf of the Independent Children’s Lawyer as being the conflict in communication between the parents. The Independent Children’s Lawyer also relied upon the asserted limited capacity of the Husband.
As to the second matter, I do not believe that limited capacity of the Husband is particularly relevant. The Husband is presently assisted by his parents who at the time of the preparation of the Family Report were aged 71 and 68 years. The children are only aged 10 and seven years. The Husband with the assistance of his parents is currently able to adequately care for the children for substantial and significant times. There obviously is a limit to the extent to which the Husband will be able to continue to receive assistance from his parents. However, as the children grow older there is no reason why they would not be able to live with the Father for an equal time even if the Husband had more limited assistance from his parents. The Family Consultant said:
Some people do worry about children taking on too much responsibility in physically caring for a parent or with roles within that household, and that it may impact on their ability to be a child. However, there are a number of studies out that show that children of disabled parents are not disadvantaged by helping to care for their parents or taking an active role in the household where it's not overly burdensome, and it's not expected.
The Family Consultant was asked if it would depend upon the level to which the child took on those tasks and whether or not she had to and the Family Consultant said:
Yes, and certainly whether or not it was taking away time from other - or taking away a majority of time that could be spent on other childhood activities. But certainly there could be lots of positives associated with some of that involvement in the household as well.
I also note that the Husband will always have assistance in that even if his parents were no longer able to provide any assistance then the Husband will have to obtain paid assistance.
In my opinion the Family Consultant made it very clear, and I agree, that lack of any effective communication between the parents makes an equal time arrangement during the school term very difficult. Given the sort of issues that arise on a daily basis for the care of children there has to be a high level of cooperation between the parents. The parents have to have a shared confidence in the other’s parenting capability.
The Husband submitted that communication between the parties in the past has not been perfect. However, he submitted it has improved, although the communication may not be ideal at various times. He submitted that the conflict between the parents appears to have reduced with the passage of time. Unfortunately I do not accept the Husband’s view of the current state of the relationship of the parties. There is a lot more to be done and with professional assistance and the end of this litigation, it is my sincere hope that in time there will be a high level of cooperation between the parents and they will have a shared confidence in the other’s parenting capability. When that happens and there is no further conflict then the situation may be reviewed.
There were no final submissions made in relation to the respective proposals for holiday periods. Given the Independent Children’s Lawyer support for the recommendations of the Family Consultant I infer that the Independent Children’s Lawyer seeks the orders sought by the Husband. I am going to make the orders sought by the Husband. The current arrangements are working reasonably well and I see no advantage to the children in the proposal of the Wife.
FINANCIAL CIRCUMSTANCES
There is an issue as to whether a Honda motor vehicle CRV 200 which was owned by the Husband should be included. It has an agreed value of $7,250. The Husband testified that he gave the vehicle to his father as repayment for a loan that the Husband’s father made to the Husband. I am not going to include the vehicle as I accept the evidence of the Husband.
The Husband has a liability to the St George Bank for $338,073.69. The evidence in relation to this debt was difficult to follow. According to a schedule handed to me before final submissions, and an amended costs memorandum, the Husband contended that he obtained this facility to pay the following expenses:
$
·Legal costs of the family law proceedings 203,760
·Legal costs of the Local Court proceedings 19,854
·Consolidation of debts and loans at date of separation 25,018
·Estimated costs 33,000
This is a total of $281,632. The amended costs memorandum suggested that the Husband has paid $237,735 for the family law proceedings which included an amount of $33,976 held in trust and paid $19,854.30 for the costs of proceedings in the Local Court. According to the amended costs memorandum the Husband obtained the funds to pay the legal costs from the following sources:
$
·Loan from his parents 7,000
·Loan from St George Bank 216,614
·Credit card 2,250
·Credit card 1,658
Total $227,522
I am going to proceed on the basis that the Husband has established an indebtedness to the St George Bank for $338,070. I accept that the facility was used to pay various expenses including legal costs. I accept that the Husband paid $9,252.60 for X property; $3,157 for N property; $18,512.54 for Y property and $9,180 for medical expenses. There was no suggestion that any of the expenditure of the amount borrowed was unreasonable. However, on the basis that the amount of $338,070 is included as a liability I am going to include as a notional asset the amount of $237,735 paid for legal costs.
As seen, the estimated capital gains tax payable for X property is $77,400 and for Y property is $75,205. I am going to include as a liability the amount of $75,205 for reasons which I will shortly give.
I am of the opinion that for the purposes of the property settlement applications the parties have the following assets and liabilities, including superannuation interests:
Assets
$
·N property (h/w) 650,000
·X property (h) 800,000
·Y property (S Holdings Pty Ltd) 500,000
·Motor Vehicle –Peugeot (w) 4,000
·Legal costs paid by Husband (h) 237,735
·Legal costs paid by Wife (w) 882
·St George account no. … (w) 200
·Local Government Superannuation Scheme (h) 24,055
·HESTA (w) 58
Total 2,216,930
Liabilities
·Loan from American Express as at 2 November 2006 (h) 5,905
·St George Bank (h) 338,074
·Loan account, S Holdings Pty Ltd 70,981
·Loan account, S Holdings Pty Ltd 77,137
·CGT, Y property 75,205
Total (567,302)
Balance$1,649,628
CONTRIBUTIONS
The period of cohabitation was about nine years and there are three children.
At the commencement of cohabitation the Husband had significant assets. The Wife conceded that the Husband entered the marriage having received in excess of $1 million as compensation for the injuries sustained in a motor vehicle accident and that the funds were applied towards the acquisition of various assets. Despite the Husband’s injuries throughout the marriage from June 1999 to 2 November 2006, he also undertook paid employment.
I am satisfied that all of the assets that were acquired during the relationship and that the parties now have were paid for from the assets the Husband had at the commencement of the relationship, subsequent borrowings and perhaps the Husband’s income. I am satisfied that the Husband provided all of the funds necessary to support the family from both the assets he had at the commencement of the relationship and his earnings from paid employment.
I accept that the social security that the Wife received during the relationship was used for the benefit of the family.
Both the Husband and the Wife made non-financial contributions towards the construction of the home at the N property
The Wife contended that her family undertook work in relation to the construction of the home at the N property. However, with the exception of the Wife’s father, they were paid by the Husband for the work that was done. The Husband’s family and in particular his father undertook work, without remuneration, in relation to the construction of the home at the N property. In summary, I accept that members of the maternal family undertook certain tasks associated with the construction of the home on the property at N but that such contributions were not as significant as those made by members of the paternal family.
During the marriage, the Wife assisted in the cleaning, painting and maintenance of the rental properties. The Wife also from time to time did undertake tasks associated with management of the properties by advertising properties for lease, interviewing tenants and collecting rent from tenants.
I accept that during the relationship the Wife did undertake a significant portion of the domestic tasks. I am also satisfied that during the relationship the Wife undertook a greater portion of the tasks associated with the day to day care of the children. I accept that in addition to financial support, the Husband carried out an active role as a home maker and parent but it was not as significant as that of the Wife.
The Wife contended that during the marriage, she was the primary carer for the Husband, thereby relieving the Husband of the need to retain professional carers. The Husband does not have professional carers. Overall, I accept that the Wife undertook a number of tasks associated with the care of the Husband by reason of his disabilities as did the Husband’s parents. However I do not accept that what the Wife did was as significant as she sought to suggest.
I am satisfied that the Husband’s parents also provided significant non-financial and emotional support to the Husband and to his family.
Conclusion Contributions
I am satisfied that the financial contributions of the Husband were significantly greater than those of the Wife. The Husband had significant assets at the commencement of the relationship. In my opinion, very significant weight must be given to the initial contributions by the Husband. The parties currently have assets of a net value of $1,649,628. In April 1992, being more than 16 years ago, the Husband contributed in excess of $1 million of assets from the compensation he received before the marriage.
If it were not for the overwhelmingly greater financial contribution by the Husband I would probably assess all other contributions as perhaps equal. I accept that the Wife made a greater non-financial contribution than the Husband as homemaker and parent which was made more arduous by reason of the disabilities of the Husband. The Wife did provide assistance with the care of the Husband. The Husband made a greater financial contribution than the Wife for the support of the family. The Husband also made a non-financial contribution and the paternal family also made significant contributions in a number of respects.
In all the circumstances, I am of the view, that the contribution based entitlements of the parties, expressed as a percentage of the net assets of the parties, should be assessed as to 80 per cent or $1,319,702 to the Husband and 20 per cent or $329,926 to the Wife.
OTHER FACTORS
The Husband is 39 years of age and the Wife is 34 years of age.
In this case the health of each party is an important matter. The Wife is in good health. The Husband has continuing physical disabilities. The Husband is currently receiving medical treatment from Dr HN who is a physician in rehabilitation medicine. Dr HN conducts what he described as a spasticity clinic. There was put in evidence reports from Dr HN dated 31 October 2007 and 19 December 2007. The Husband consults with Dr HN for injections in his left arm of Botulinum Toxin and also for injection splitting therapy to assist with mobility. I am not going to repeat the evidence of Dr HN. On behalf of the Husband on 13 July 2007 an affidavit was sworn by Associate Professor Y who is a rehabilitation specialist. On behalf of the Husband affidavits were sworn on 15 June 2007 and 30 July 2007 by Ms JE who is an occupational therapist. On behalf of the Husband affidavits were sworn on 15 June 2007 and 30 July 2007 by Ms SF who is a physiotherapist. On behalf of the Husband an affidavit was sworn on 7 August 2007 by Ms JW who is employed by the Pharmacy Guild of Australia. She gave evidence of the costs of medication being taken by the Husband.
There is a real probability of the Husband having to pay substantial un-claimable costs for surgery in the future, including other medical items and equipment, treatment and care and assistance. In summary, I accept that the Husband continues to suffer from significant disabilities and will incur substantial ongoing medical, pharmaceutical and treatment expenses.
The Husband swore a financial statement on 25 September 2008. He is in receipt of a total average weekly income of $1,331.82. The income comprises a salary of $559.12; rent from X property of $320; income from S Holdings Pty Ltd being the rental income from Y property of $350 and family tax benefit and mobility allowance of $102.70. The Husband testified that his weekly total expenditure is $1,535.04. He pays tax of $123, superannuation of $80, payments of $367.02 in relation to the mortgage loan to S Holdings Pty Ltd, mortgage payments of $434.42 in respect of the loan which he obtained in October 2008 from the St George Bank and child support of $51. He also pays approximately $250 per week for the support of the child L including education expenses.
The Wife swore a financial statement on 24 September 2008. She testified that she is in receipt of a total average weekly income of $350. The income comprises a salary of $180; family tax benefit of $120 and child support of $50. On 15 August 2007 a financial statement was filed by Mr Farrow. Mr Farrow’s occupation is a driver. In the financial statement he said that he is in receipt of a total average weekly income of $1,170 being his salary. He contended that he has total weekly personal expenditure of $1,279 which includes $84 which he pays to his former wife for child support. In cross-examination Mr Farrow testified that he currently receives an average of $34,000 per annum or $653 per week as he no longer has the benefit of overtime work. However no documentary evidence was adduced to corroborate this evidence.
The Wife is currently in permanent casual employment and works 8.5 hours per week for which she is paid $21 per hour. In cross-examination the Wife made clear that during 2009 the situation will change and there will be more shifts available to her and that she will be able to obtain more paid hours. The Wife will have work available for up to 38 hours a week and may also be paid overtime, which if the hourly rate continued at $21 would be $798 per week. In 1991 although the Wife worked at a Hospital, and although at that time she was a secretary and had undertaken a bookkeeping course, she made clear that she has an interest in healthcare.
The Wife and Mr Farrow contended that at present they are not living together. Both the Wife and Mr Farrow contended that the future of their relationship was dependent upon what they were told “by the Lord”. I have no doubt that once this litigation is concluded the Wife and Mr Farrow will live together. I therefore propose to take into account the financial circumstances of the proposed cohabitation of the Wife and Mr Farrow.
The Husband’s injuries and disabilities together with his age produce extremely poor prospects for him to obtain employment on the open labour market. Associate Professor Y in his report dated 12 June 2008 opines that the Husband’s life expectancy is calculated at 96 per cent of the years that would have now remained had he not had his motor accident in November 1985. By comparison with the Husband, the Wife is likely and is able to engage in paid employment for a longer period than the Husband. The Husband submitted that the Wife should have about 20 years or more to engage in incoming earning activities.
The Husband currently has a greater income than the Wife. The Husband also has a greater earning capacity than the Wife. However the Wife will be able to undertake more paid employment as the children in her care grow older and also given the amount of time the children spend in the care of the Husband. I am of the view that at some point in the near future the earning capacity of the Wife will be greater than that of the Husband.
During final submissions I received as an aide memoire a schedule of future care costs of the Husband. Calculations were done of the anticipated future expenses of the Husband for care, holidays, equipment and treatment of $1,810.97 or $1,979.06 per week. Then on the basis of a life expectancy of 37.4 years applying a three per cent multiplier and a five per cent multiplier and allowing 20 per cent for vicissitudes a capitalised cost of future expenses was arrived at. The amounts were very significant. For example, on the basis of the anticipated weekly amount of $1,810.97 applying a three per cent multiplier the amount was $1,700,862 and applying a five per cent multiplier the amount was $1,294,625. The result is that I am satisfied that very significant weight has to be given to the future needs of the Husband. This was not in issue because as a contribution the Wife relied upon what she did to care for the Husband. In fact the Family Consultant reported that the Wife recognised that, due to his disabilities, the Husband requires assistance when the children are with him. The Wife expressed concern that in this respect, an equal time arrangement “places more pressure” on the paternal grandparents, particularly the paternal grandfather who already carries a “heavy load”. However the Wife submitted that the care would or could be provided by members of the paternal family. I have no doubt that the Husband will continue to receive significant assistance from his parents and members of the paternal family just as he has in the past. I also accept that the Husband will require significant funds to defray the costs of his future care and treatment.
As a result of my findings as to the contribution based entitlements the Husband has significantly greater assets than the Wife. The difference is $989,776.
The Wife will have a greater responsibility for the care and support of the children M and K. However the children will spend significant and substantial time in the care of the Husband during which time he will have a greater responsibility for the care and support of the children. Further the Husband will pay child support. The Husband will also have a greater responsibility for the care and support of the child L.
The matrimonial home had been specially constructed for his purpose and significant repairs and renovations were carried out to the matrimonial home by members of the Husband’s family.
The orders that I propose to make will have no effect on the earning capacity of either party.
Conclusion-Other Factors
The significant matters that favour a further adjustment in favour of the Wife are the current greater income of the Husband, the current greater earning capacity of the Husband, the greater assets of the Husband and the Wife’s greater responsibility for the care and support of the children M and K.
The significant matters that favour a further adjustment in favour of the Husband are the age of the parties, the state of health of the Husband, the needs of the Husband, the ultimate greater earning capacity of the Wife, the payment by the Husband of child support, the responsibility of the Husband for the care and support of the children M and K when they are in his care, the greater responsibility of the Husband for the care and support of the child L and the financial circumstances of the cohabitation of the Wife and Mr Farrow.
In my view, in all the circumstances of this case, there should be a further adjustment in favour of the Wife to her contribution based entitlements having regard to the “other factors”. The matter that ultimately results in an adjustment in favour of the Wife is the significantly greater assets of the Husband in consequence of my findings as to the contribution based entitlements. The disparity is almost $1 million. However I also take into account all of the other relevant factors I have identified such as the age of the parties, the state of health of the parties and the future needs of the Husband and so on. I assess this further entitlement of the Wife at 10 per cent of the net assets of the parties or $164,963.
EFFECT OF ORDERS
I have decided that I am going to make an order that the Husband pay a sum of money to the Wife and that he retain the real property. I am not going to make an order that the Wife receive the property at Y. I have, as seen, included an allowance for capital gains tax because in order to satisfy the entitlement of the Wife the Husband will have to sell a property. There will also be costs of sale. Even if I had made the order sought by the Wife I am satisfied that the Husband would have had to sell property because he would have had to discharge the debts of $70,981 and $77,137 secured on the title of the property at Y.
The Husband will receive an entitlement of $1,154,740 or 70 per cent of the net assets that will comprise the following:
Assets
$
·N property 650,000
·X property 800,000
·Y property (S Holdings Pty Ltd) 500,000
·Legal costs paid 237,735
·Local Government Superannuation Scheme 24,055
Total 2,211,790
Liabilities
·Loan from American Express as at 2 November 2006 (h) 5,905
·St George Bank (h) 338,074
·Loan account, S Holdings Pty Ltd 70,981
·Loan account, S Holdings Pty Ltd 77,137
·CGT, Y property 75,205
·Payment to Wife 489,748
Total (1,057,050)
Balance$1,154,740
The Wife will receive an entitlement of 30 per cent or $494,888 of the net assets that will comprise the following:
Assets$
·Motor Vehicle –Peugeot 4,000
·Legal costs paid 882
·St George account no. … 200
·HESTA 58
·Payment by Husband 489,748
Total $494,888
In my opinion, in all the circumstances of this case, the outcomes I propose are just and equitable.
Application against Mr Farrow
The Husband sought injunctive orders against Mr Farrow. The Husband sought that Mr Farrow be restrained from entering upon or re-entering or remaining upon the premises known as N property without the consent of the Husband and be restrained from approaching and/or interfering with or in any way engaging in any conduct that intimidates, and or harasses the Husband and/or the child L. Extensive submissions were made on behalf of the Husband in support of the injunctive orders. I am not going to repeat what was submitted.
On 2 June 2008 I noted an undertaking by Mr Farrow that he would not make any attempt to enter upon or re-enter or remain at the premises known as N property without the consent of the Husband and he would not approach or interfere with or in any way engage in conduct that intimidated and/or harassed the Husband and/or the child L. I also noted an undertaking given by the Husband that he would not make any attempt to enter upon or re-enter or remain at the premises occupied by Mr Farrow, without the consent of Mr Farrow and he would not approach or interfere with or in any way engage in conduct that intimidated and/or harassed Mr Farrow.
In discussions during final submissions it was agreed that the only relevant evidence was what happened on 11 July 2006 and that the child L gave evidence in the Local Court that he was afraid of Mr Farrow. As well, I was informed that Mr Farrow was prepared to give an undertaking in the same terms as he gave on 2 June 2008. In the result, in my opinion, the undertakings are sufficient to dispose of the injunctive proceedings.
I certify that the preceding two hundred and fifty seven (257) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 17 December 2008
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Property Law
Legal Concepts
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Injunction
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Costs
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Remedies
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Constructive Trust
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Fiduciary Duty
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