Simpson & Simpson

[2009] FamCA 100

FAMILY COURT OF AUSTRALIA

SIMPSON & SIMPSON [2009] FamCA 100

FAMILY LAW – CHILDREN – 12 year old child – Attitude of father towards mother

FAMILY LAW – PROPERTY – Major component of net assets derived from husband’s personal injuries award – Discussion of add back of paid legal fees and other issues related to the composition of the net assets – Contributions – Husband’s capacity for work

Family Law Act 1975 (Cth)

APPLICANT: Ms Simpson

RESPONDENT: Mr Simpson

FILE NUMBER: SYC 5094 of 2007

DATE DELIVERED: 18 February 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 9 & 10 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Watkins

SOLICITOR FOR THE APPLICANT: CM Lawyers

COUNSEL FOR THE RESPONDENT: Mr Millar

SOLICITOR FOR THE RESPONDENT: J.S. Pinto & Co

Orders

1. The mother is to have sole parental responsibility for the child D born … May 1997 (“the child”).

2. The mother is to keep the father informed of any major long term decisions taken by her about the child’s upbringing.

3. The child is to live with his mother and spend time with his father as follows:

   (a)during school terms, each alternate week from Thursday after school to before school Monday morning or Tuesday if Monday is a public holiday;

   (b)during school holidays for one half of each school holiday period as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years;

   (c)on Father’s Day, the child’s birthday, and the father’s birthday as agreed and if not agreed for the whole of Father’s Day from 9am to 5pm and for two (2) hours if the other occasions fall on a school day or five (5) hours if they do not. 

4. Both parents are restrained and an injunction is granted restraining them from removing the child from the Commonwealth of Australia without the specific agreement in writing of the other parent or order of the Court and the passport for the child is not to be provided to either parent unless and until there is written agreement about his travel or order of the Court. 

5. On or before one (1) month from this date the husband pay to the wife the sum of $300,000.

6. Upon payment of the sum referred to in order 5 the wife is to do all things and sign all documents necessary to transfer to the husband her right title and interests in

   (i)the property at M being Folio Identifier … subject to the mortgage secured on the property; and

   (ii)the property owned by the parties in Portugal.

7. Unless expressly mentioned in these orders, each party is entitled to retain to the exclusion of the other all other property presently in the possession or ownership of that party. 

IT IS NOTED that publication of this judgment under the pseudonym Simpson & Simpson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5094 of 2007

MS SIMPSON

Applicant

And

MR SIMPSON

Respondent

REASONS FOR JUDGMENT

[For ease of editing the parties will be referred to either as mother/wife or father/husband]

Proceedings

1. Decisions have to be made about the future arrangements for the parties’ son, D (11) born in May 1997, including whether his father will be permitted to relocate with him to Portugal.  They have another child, a daughter L (17) born in October 1991, but neither is seeking orders about her arrangements.  Also to be decided is settlement of their property. 

Orders sought - parenting

1. Interim consent orders made on 9 October 2007 remain operative and they provide for the child to live with his father and spend every second weekend with his mother as well as other times agreed.  Indeed, he has spent other time with his mother, generally from after school until 7pm or 7.30pm several times a week. 

2. As for the orders now sought, both parents filed amendments to the orders sought initially and both tendered further Minutes of orders at the outset of the hearing.  At that point the mother’s position [exhibit 2] was for ‘joint responsibility for the long-term care, welfare and development of the children [D] born […] May 1997 and [L] born […] October 1991’, D to live with her and spend time with his father as agreed and failing agreement as follows: 

   (a)each alternate weekend from Friday at the conclusion of school until Monday morning at the commencement of school, during school term;

   (b)during school term, one night per week overnight from Wednesday after school until Thursday commencement of school;

   (c)       one-half of the school holidays.

   (d)that [D] spend time with his father on Father's Day, and as agreed on [D’s] birthday, or failing agreement for at least 2 hours if a school day and 3 hours if the birthday falls upon the weekend.

   (e)for one-half of the Christmas period, such period running from midday Christmas Eve until midday Boxing Day, as agreed, but failing agreement for the first half in even numbered years and the second half in odd numbered years;

   In the alternative, that [D] spend one week with the father and one week with the mother, with changeover to occur at the commencement of school Monday during school term and 9.00am Monday morning during school holidays.

   That both parties be restrained from relocating [D] from the Sydney metropolitan area.’

3. At the close of the evidence she changed her position and sought orders for ‘sole parental responsibility for the long term care welfare and development’ of D, that he live with her and spend time with the father as agreed by her. 

4. The orders the father seeks follow [exhibit 3]:

   ‘1.That the child of the marriage [D] born […] May 1997 live with the husband.

   2.That the child [D] spend time with the wife on alternate weekends from 5pm Friday until 5pm Sunday during school term time.

   3.That the child [D] spend time with the wife on Mothers Day and on [D’s] birthday as agreed between the parties.

   4.That [D] spend time with the wife for one half of each school holiday period, the dates for commencement and conclusion of the school holiday periods to be agreed on between the parties.

   5.That the husband be at liberty to remove [D] from the Commonwealth of Australia to reside in Portugal after the conclusion of the 2009 school year.

   6.That the wife do all such things and execute all such documents which may be necessary to cause the passports for the children [D] and [L] to be delivered to the solicitors for the husband, the passport for [D] to be released to the possession of the husband seven days prior to his departure from Australia with [D] to reside in Portugal and the passport for [L] to be provided to her upon her attaining the age of 18 years.

   7.That [D] spend time with the wife at such other additional times as may be agreed between the parties.

   8.That the wife do all things to ensure that [D] not come into contact with [Mr H].’

Approach - parenting

1. In making a parenting order, the best interests of the child are the paramount consideration [s 60CA].  That outcome is guided and spanned by specific objects and underlying principles.  The factors which determine best interests are expressed as ‘primary considerations’ and ‘additional considerations’ [s 60CC (2) and (3)] which will be evaluated later.  It will also be necessary to consider the application or otherwise of a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility and if an order is to be made to that effect to consider whether it will be in the child’s best interests and ‘reasonably practicable’ to spend equal time between his parents and, if not, ‘substantial and significant’ time with each of them.  If those outcomes are rejected, arrangements will be determined by the assessment of best interests and what is reasonably practicable in all the circumstances. 

2. These decision-making directives makes no specific mention of a parent’s proposal to relocate with the child some distance from where they now live, including to an overseas destination, but there is a body of case law on the topic.  As I have noted elsewhere, most of the cases were decided before the amendments brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006 – eg AMS v AIF (1999) 199 CLR 160, (1999) FLC 92-842, (1999) 24 FamLR 756; Paskandy and  Paskandy (1999) FLC 92-878; A and A: Relocation Approach (2000) FLC 93-035; U v U (2002) FLC 93-112, (2002) 29 FamLR 74; D and SV (2003) FLC 93-137; and Bolitho and Cohen (2005) FLC 93-224 – and since the amendments there have been cases such as Taylor and Barker [2007] FamCA 1246. As I have also noted elsewhere, what comes out of those cases as the Act now stands can be summarised this way:

   ·‘relocation’ cases are parenting cases to which the same provisions of Part VII apply as they do to any parenting case;

   ·the child’s best interests is the paramount but not the sole consideration;

   ·each of the proposals advanced by the parents has to be identified;

   ·in evaluating the evidence (i) neither parent bears an onus to establish a proposed change or continuation of an existing arrangement will best promote the best interests of a child; (ii) regard must be had to the right of freedom of movement of a parent though that may have to cede to the child’s best interests; and (iii) matters of weight are to be explained;

   ·the evidence is to be evaluated against the relevant Part VII provisions under the span of the objects and underlying principles in any convenient order, though logic suggests the s 60CC factors would come first before the application or otherwise of the presumption about parental responsibility and the resulting time considerations; however, if the presumption applies the obligation to consider equal time or substantial and significant time is to be undertaken separately initially by looking to the child’s current circumstances before balancing the advantages and disadvantages of either outcome against the advantages and disadvantages that would flow from the proposed relocation;

   ·the outcome is not confined to the proposals put by the parents but all options to secure the child’s best interests may be considered;

   ·one option may be the other parent’s willingness or ability to move to be nearer the child after the move; and

   ·the parent proposing to move does not need to establish compelling reasons to justify the relocation.

Orders sought - property

1. As for property settlement, there is common ground that the husband will receive a transfer of the wife’s interest in an apartment they purchased in Portugal but they each ask to retain the unit they own at M in Sydney and there is dispute about what assets are to be brought to account here and the quantum of cash to be paid to the wife. 

2. The orders the wife seeks are these:

   1.That the husband within 28 days transfer his right title and interest to the property at [M] being Folio Identifier […]subject to the mortgage presently over the property to the wife.

   2.That within 28 days the husband pay to the wife $420,000 and upon payment the wife do all acts and sign all documents to transfer to the husband all her right title and interest to the jointly held property of the parties in Portugal.

   3.That the husband forthwith transfer to the wife all his right title and interest to the Daihatsu Sirion motor vehicle registration number […].

   4.That the husband be declared the owner of and the wife to have no claim upon:

   (a)all other cars, furniture, chattels and other items of personal possession held by him;

   (b)all bank accounts and other deposits with financial institutions standing in his name, including but not limited to superannuation funds.

   5.That the wife be declared the owner of and the husband have no claim upon:

   (a)all other cars, furniture, chattels and other items of personal possession held by her;

   (b)      all bank accounts and other deposits with financial institutions standing in her name, including but not limited to superannuation funds.

3. The formal orders the husband seeks follow although the closing submissions of his counsel arrived at a slightly different amount to be paid to the wife than that in order 1:

   ‘1.That within two months the husband pay to the wife by way of property settlement the sum of $140,163.

   2.That upon payment of the sum referred to in order 1, the wife shall do all things and execute all documents to transfer to the husband all her right title and interest in the property known as [M property], New South Wales.

   3.That upon payment of the sum referred to in order 1, the wife shall do all things and execute all documents necessary to transfer to the husband all her right title and interest in the property owned by the husband and the wife in Portugal.

   4.That upon payment of the sum referred to in order 1 the husband shall do all things and execute all documents to cause the mortgage presently registered on the title of the property known as [M property] to be discharged.

   5.That the husband and the wife do all things and execute all documents to cause the Daihatsu Sirion motor vehicle to be transferred to their daughter [L] upon her attaining the age of 18 years.

   6.That except as otherwise provided by these orders each of the husband and the wife is to retain all other items of property, including household contents, motor vehicles, funds standing to their credit in bank accounts and superannuation interests, as are presently in the name or possession of that party.’

Approach - property

1. The assessment of property entitlements is governed by s 79 of the Act.  The Court may not make an order altering their interests in property unless it is satisfied in all the circumstances that it is just and equitable to do so.  In considering what order, if any, should be made, account must be taken of the matters referred to in s 79(4).  The approach to that involves a number of steps which for present purposes can be collapsed to these: (i) the identification of the property of the parties and its' value; (ii) an evaluation of their contributions of the kind referred to in paragraphs (a) - (c) of s 79(4); (iii) an evaluation of the matters referred to in paragraph (e) which picks up the terms of s 75(2); and (iv) finally, it is necessary to stand back and review the outcome against the just and equitable requirement. 

Evidence

1. The evidence is not extensive.  Apart from that given by the parents, there is an affidavit from Mr H, with whom the wife has formed a relationship, an affidavit from the husband’s doctor, Dr B, and a family report from a Family Consultant who had conducted interviews in August last year.  Mr H was briefly cross-examined but the other witnesses were not required. 

Credit

1. The wife’s counsel submits that where there is any conflict between the evidence of the parties the wife’s is to be preferred.  The submission rests on inconsistencies between denials the husband swore to in his affidavit when addressing allegations about his conduct and concessions or admissions he made when cross-examined about them, his unresponsiveness to questions reasonably asked of him, and his aggressive demeanour. 

2. The submission is well founded.  Of course it is accepted that accounts given of past events can be skewed by perception or by understandable subjectivity which might tend to emphasise one angle over another and allowance is made for that.  But the husband’s wholesale denials he gave on oath in his affidavit did not match some of his argumentative replies when asked about his conduct and his persistence in delivering what could only be described as a tirade against the wife left little room to doubt the accuracy of what was being put to him.  These internal contradictions and his unresponsive argument during much of his time in the witness box amply demonstrated his unreliability and lack of objectivity.  It stands in stark contrast to the consistency of the wife’s evidence which was given without the embroidery or reckless overreach that his performance conveyed.  Absent any inherent improbability or contradiction from any other source, I am satisfied her version of events is to be preferred where there is any conflict with the evidence of the husband. 

Material facts - property

1. The husband (47) was born in Africa and moved with his family to Portugal at the age of 13 years.  The wife (41) was born in Spain but lived with her family in Portugal which is where the parties met in the 1980’s.  They married there in September 1989.  They migrated to Australia in 1990 and after living for a time in Melbourne they moved in May 1992 to Sydney where they have lived since.  L was born in Melbourne in 1991 and D was born in Sydney in 1997.  Over the years they have made a number of trips back to Portugal. 

2. Within four years of the move to Sydney they had accumulated savings sufficient to pay deposits to purchase an apartment in Portugal and a unit in M, Sydney:

   (a)In 1994 on their first trip back to Portugal they purchased an apartment in Portugal for $100,000 using savings of $25,000 or $30,000 and borrowing the balance required from a bank in Portugal. 

   (b)In 1996 they purchased a unit at M for $150,000 using some savings and borrowing $120,000 or $141,000 from the St George Bank.  In 2000 they refinanced the debt with Citibank through a draw down facility of $107,000. 

   (c)It is common ground they separated in July 2002, but they both remained living at the M unit until June 2007 when the wife withdrew and established rented premises elsewhere. 

3. Before their marriage the husband had a chequered work history which saw him move between Portuguese cities doing jobs as varied as working in a service station, assisting a plumber in the construction industry, helping his father in a mini-market business, delivering liquor supplies, selling forged metal lanterns, and working in a meat factory.  In between, he did compulsory military service.  As for the wife, she says she was working as a bookkeeper before they married and she continued with this work after the marriage.  On her account of it, the husband was unemployed initially after their marriage but he started work at the meat factory and then later he drove a forklift.  They lived in a rented room in Portugal. 

4. The husband says nothing of any substance about work after they arrived in Melbourne; the wife says he was unemployed and she worked for a while as a machine operator.  Their daughter was born while they lived there.  Their move to Sydney was to allow the husband to start work as a labourer in the construction industry. 

5. In Sydney the wife went to TAFE to complete a computer course and she then obtained some work as a factory hand until they went to Portugal for a holiday at the end of 1994.  In May 1995 she started work at a Sydney hospital and she remained employed there for the next 12 years until 2007.  This was interrupted for a year by her pregnancy and the birth of their son in 1997 when her mother came from Portugal and stayed for a year to assist.  Over the years the nature of her work at the hospital changed and in 1999 she took on permanent night shifts which she says enabled her to look after the children during the day and still earn a wage.  As well as her part time work at the hospital she took on additional work: she cleaned the M unit building where they lived until May 2007 and from 2005 she worked as a courier.  Since leaving the hospital in 2007 she has worked full time as a courier. 

6. On moving to Sydney the husband worked full time as a labourer with a large construction company.  In 1999 he was injured at work when a forklift ran over his leg.  In due course he undertook some light duties until no more could be found, but he remained in the company’s employ until September 2003.  He was paid his wages until November 2001 and from then on he received workers compensation with a top-up. 

1. This was their situation when they separated in 2002.  They had their interest in the M unit and the apartment in Portugal – both subject to mortgages - and a Ford Laser motor vehicle as well as their superannuation entitlements.  And by this time the husband had a pending personal injuries claim. 

2. In 2004 he claimed various employment related entitlements: annual leave and sick leave of $8,618; long service leave of $8,890; from the redundancy trust $12,409; and superannuation of $62,296 – totalling $92,213 – but he received about $7,000 less after allowance for tax.  He used the money to pay out the housing loan from Citibank. 

3. In early 2005 his claim for damages was determined and he was awarded over $1.228 million made up of various components set out in paragraph 12 of the Assessor’s reasons: non-economic loss $130,000, past economic loss including superannuation $270,000, future economic loss $566,800, Fox v Wood $20,171, past and future medical expenses $82,096, and future care $88,300.  In May 2005 he received $878,092 after paybacks and deduction of legal costs.  Attached to the award was a disqualification from applying for social security assistance or Centrelink payments until December 2025.  Amongst the submissions to support the husband’s case the Assessor notes his claim of past care by his wife based on 8.5 hours per week, his inability to assist his wife with the cleaning at the block of units [6.1.5] and the husband’s oral evidence about the domestic chores as between himself and his wife [8.1]. 

4. The husband deposited the amount received into an account in his name and it was used for these purposes:

   ·$18,092 for airfares for a holiday for the family for 9 weeks in Portugal plus vehicle hire;

   ·$15,000 to purchase Daihatsu motor vehicle [he says intended for their daughter]

   ·$45,000 to discharge the debt on the Portugal apartment and spending money for the family there;

   ·$800,000 invested on term deposit, later transferred to another bank to attract a better rate of interest. 

5. On 1 June 2007 the wife withdrew from the M unit in circumstances to be mentioned shortly.  The husband’s allegation that she withdrew money from the Citibank account without his knowledge or consent - $1,450 paid to her solicitor, $1,300 for rental bond, and $500 for advance rent – is unchallenged.  His broad assertion that she made ‘other withdrawals for other expenditure with her boyfriend far in excess of any monies deposited by her’ is not supported by any particulars.  His fear that she would withdraw the entire credit line facility is the reason he gives for withdrawing $92,219 from the account - this equates to the employment related benefits he deposited [gross] in 2004 – and he deposited it to his account with the Commonwealth Bank.  At the time he swore his financial statement last November he had $41,000 left.  He says the rest was used to pay living expenses since the interest earned on funds invested was insufficient for his needs and he also spent money chasing up the managing agent of the apartment in Portugal about the rent.  His evidence at the hearing was that he had used money in the account to buy another motor vehicle, trading in his Subaru.  His counsel’s proposal to include in his assets the Subaru and the earlier balance of $41,000 drew no argument. 

6. Their banking arrangements, including the use of the Citibank account, were not addressed as directly as they might have been.  However, it is the wife’s evidence [paragraph 25] that during her time at the M unit she paid her weekly wage to the joint account at Citibank and that account was used to pay commitments they had, household expenses, and the children’s expenses.  That is accepted; that is to say, the wife contributed her earnings over the years not only to the point of separation but until she left the unit in June 2007 for family purposes.  She took a modest amount from the joint account, mostly to establish accommodation elsewhere.  The husband’s dealings with his wages and compensation and interest earned is not clearly articulated, but it is accepted he made the income from all those sources available for those same family purposes over the years they both lived in the M unit, before and after their separation. 

7. As for responsibilities on the domestic front during the time they lived together, it is accepted that the wife was primarily responsible for the care of the children and the running of the home while she lived there.  Not only is that consistent with her evidence, it can be inferred from what the husband said about the days he worked before the accident in 1999 and from the case he put about domestic arrangements in his damages claim. 

8. As for current circumstances, the wife works 8am to 4.30pm Monday to Friday and she is doing casual work on Saturdays until these proceedings are concluded.  She earns just under $700 per week before tax and she receives a small sum in government family benefits.  She has virtually no savings.  She has a debt of $18,000 which she took out to buy a motor vehicle.  She has paid legal fees of $3,120 from her earnings and it is said she has unpaid legal fees in the order of $74,000.  She lives at C and pays rent of $270 per week.  She has paid half the children’s school fees for their enrolment at a Catholic school and she has otherwise paid their costs while in her care.  She has formed a relationship with Mr H who lives at F in premises he owns subject to a mortgage.  He works at the hospital where they met.  Both say they have no present plans to live together or marry – the parties were divorced last year - but the tenor of their evidence is that neither rules out the relationship developing at some stage in the future. 

9. The husband has remained in occupation of the M unit and in the 20 months or so since the wife left he has from his own resources reduced the mortgage debt by $2,000 to $105,000 and, it is assumed, paid the body corporate fees, rates and any similar charges from funds he has had available.  Apart from the contribution the wife has made to the children’s school fees and their care, he has paid their other expenses while in his care.  He has not sought any employment and his income is derived from interest on his investments.  When he swore his affidavit in November last he had income from interest of $1,145 per week [or $59,540 per annum] but the rate he expects to receive when the principal is re-invested, depending on the term, will be a little above or below 4%.  Obviously the income able to be generated will also depend on the capital available for investment after this decision.  There is a submission about his capacity for work but that can be left for discussion later.  He has paid $48,347 towards his legal costs from funds available to him. 

Material facts – parenting

1. Not a lot is said about events preceding their separation or the period until the wife’s departure from the home.  She makes the broad based allegation that during their marriage the husband always psychologically abused her and denigrated her, he constantly checked that she kept the house clean and that things were done as he wanted them, he called her names, and told her she was ‘stupid’ and ‘no good’.  The particulars she provides relate to the period just prior to her departure and later - all denied by the husband on affidavit – as follows:

   ·    [May 2007] the husband screamed at her in front of the children ‘your mother is a slut, a bitch, a pig’ and when she asked him to stop and try to respect the children he said: ‘I don’t care.  This behaviour towards you from me will continue every day while you are still living here.’  At the hearing the husband said he did not remember what he said – ‘It is possible, I have got sentiments, what she did to me I wouldn't do to a dog’ and even if he did it is of no consequence because he would have been in a state of shock, it is logical when discovering the truth after so many lies that a human being thinks along those lines. 

   ·    [7 June] The husband called her.  He told her if she did not return the passports he would come and kill her and he called her a ‘whore’ several times.  She could hear L in the background crying and asking him to stop. He calls the allegation he made a death threat a fabrication. 

   ·    [13 June] The children had been sick and she went to the home at L’s request.  He called the mother names in front of the children and said he would ‘get’ her.  The children were crying and screaming and asking him to stop. 

   ·    [18 June] On her return to collect the children he demanded she bring the children’s passports - L left, D was crying telling his mother he loved her – and he said to her ‘Shut up.  If you don’t shut up I will kill you.  The only way that I am going to stay in this country is if I go to jail, and that will be after I kill you and him first.’  He grabbed her by the throat and pushed her into the wall and forcibly removed her from the unit.  She says she did not call the police out of concern for the children.  She delivered the passports to her solicitor who retains them.  At the hearing the husband said ‘I took hold of her and put her out of the house’ and demonstrated his actions. 

   ·    [29 June] When the mother telephoned L to confirm the time the children would be coming, the father was in the background telling her not to answer him back or he will bash her and her mother - ‘if you are not happy here piss off, get out of this house just like that whore did.’  The husband later rang her to say L had refused a lift and if something happened to her on the bus ‘I will kill you, you slut’.  He rang again later and, referring to money, he told her if she did not have enough cash she should ‘go to Kings Cross and earn it’. 

2. On 13 August 2008 a final apprehended violence order was made against the husband for the wife’s protection for a period of 6 months.  As noted earlier, interim consent orders about D’s arrangements were made on 9 October and, as also noted earlier, D has spent that time with his mother as well as after school three or four times a week.  She returns him to his father’s after dinner on those evenings.  The orders also provided for neither party to denigrate the other and neither to permit the children to have contact with a partner. 

3. In paragraph 13 of the family report there is reference to a ‘clash’ the week before between L and her father.  On the father’s account of it she had spoken to him disrespectfully and he ‘pushed her on the head’ and told her not to speak to him in that manner.  The mother, on the other hand, said L complained he punched her on the head.  As L did not attend the report interviews, her account was not given.  Taken to the occasion in cross-examination, the father demonstrated what he had done – hitting her across the back of the head with an open hand.  Other aspects of the family report will be mentioned later. 

4. Since those interviews there have been some further developments.  It was agreed the children would spend some time with their mother in the December/January school holidays just passed.  She and Mr H took them camping at the Central Coast.  It was cut short on New Years Eve when L became upset after a call from her father and the mother returned the children to their father in Sydney.  She later received these text messages from the husband which she found upsetting:

   ·[D] doesn’t know how to lie the son of a cunt was there, that’s why all the secrets.

   ·Tell that son of a cunt that he will get it.  I make the law.

   ·If that sone of a cunt is a man tell him to come see me.  If he ever again comes near my kids I said in court that if necessary I will make justice with my own hands.  I know everything you even take him ([D]) to his house.

   ·You can be sure one way or another I won’t allow [D] to be near that son of a cunt. 

5. She reports L being very distressed about her father being angry they had gone on a holiday with Mr H present.  The mother reported the events to police on 5 January. 

6. After the camping trip D told his mother he was not able to come and see her anymore during the week but she went and got him anyway.  She was asked in cross-examination if she knew the husband would be angry about taking the children camping with Mr H and it was suggested she had done it deliberately to provoke him.  But she rejected this: she did not think she had to tell him what she was doing during her time with the children, they are divorced so why would she have to tell him, and the orders were made before they were divorced – in her view the orders no longer prohibited contact because they had been divorced last year. 

7. In all of this and his evidence at the hearing the husband holds an apparently unassailable conviction that the wife was having an affair which he became aware of in mid-2007.  On her account of it, and Mr H’s, however, they met after the parties separated in 2002 and their relationship did not begin until much later.  Even if it were otherwise, it hardly needs to be said that it does not justify the sort of conduct described. 

8. There was another development the night before the hearing.  The husband agreed L had been upset that morning - he did not know why – and he agreed he had sent her a text message the previous night about who is lying and about good and evil and he told her if she does to her husband in the future what her mother had done to him then he would not support her but he would support her husband. 

Future proposals – relocation

1. The mother’s proposal involves some change for D.  He would move from his father’s primary care to live with her and he would see his father as she agrees or according to some other regime according to court orders.  He would continue to see his sister whose arrangements with her mother are flexible.  Otherwise his arrangements would remain similar.  She would continue to work and she would fit that around her responsibility for D.  As for Mr H, the future of that relationship is as yet uncertain but it is possible that at some point they might live together or marry.  Asked if she would move to Portugal if D were permitted to live there with his father, she referred to getting work and accommodation but the general impression was that she may consider moving there if that happened.  She says L does not wish to leave and live in Portugal - no doubt the mother would have to take that into consideration. 

2. The father’s proposal is to move to Portugal at the end of the 2009 school year.  Beyond that he offers little information about what he proposes for D in Portugal and he puts forward no concrete plan for D to communicate with and spend time with his mother or his sister in that event should they remain living in Australia.  He was asked in cross-examination if he would stay in Australia or move to Portugal if D were to be living with his mother and his unequivocal response was ‘to Portugal of course’.  Later in closing address the father’s counsel relayed his instructions that he would remain in Australia in that event, but he did not reopen his case to give that evidence and therefore his change of heart or what was behind it was not tested in cross-examination.  Of course it is his position that D remain living with him, whether in Australia or not, and it can be inferred that the contact he proposes for D during 2009, set out earlier, would continue into the future if he were to remain here. 

Objects and principles

1. I turn now to the evaluation of best interests which is assessed under the umbrella of the objects and underlying principles.  The objects are about ensuring children’s best interests are met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s 60B(1)].  The principles underlying these objects, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and that parents jointly share parental duties and responsibilities and should agree about future parenting [s 60B(2)]. 

Best interests

1. The weight of the evidence leads to the assessments that follow. 

• primary considerations

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. There can be no doubt that D has a meaningful relationship with both of his parents.  Nor can there be any doubt that he derives benefit from those relationships, the degree of benefit being qualified by the extent to which each can meet his needs. 

2. If D were to leave Australia and live in Portugal his opportunity for a meaningful relationship with his mother would be diminished by the distance and expense involved in spending time with her.  Very likely it would be further diminished by largely unrelieved exposure to his father’s disrespectful attitude about her in circumstances where he would not have the counter-balance of his own experience of his mother. 

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. There is no evidence of D suffering any physical harm but it is amply demonstrated he has been exposed to abuse and family violence which poses risks to his well being and from which he needs to be protected.  His awareness of the state of the relationship between his parents and the distress it causes him is apparent from the family report and there has been no change since.  On the contrary, he could not have been unaware of or unaffected by his father’s response to the camping holiday. 

2. Unfortunately the father lacks insight into the need to protect the children from his views about their mother, he has no demonstrated insight into the impact of it on them, he seems to have no inkling that since they are their mother’s children they might experience his views as also directed at them, and there is no hint that he understands what it might mean for them to hear the sort of tirades he has delivered in their presence about their mother.  Some of his conduct towards L gives rise to concern about whether he is transferring to his daughter his views about her mother.  Certainly he has not softened in his attitude over time, so clearly demonstrated during his time in the witness box, and there is nothing to indicate he takes any step to protect D from any of it. 

3. I am satisfied the children need to be protected from the harm this conduct delivers.  Their father either has little or no insight into this or, if he does, he is incapable of the necessary restraint but driven by the absolute conviction he is right and his behaviour is justified. 

• additional considerations

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. D will turn 12 in May.  He was described by the reporter as a tall, handsome boy who presented as a quiet, polite and gentle person and she thought him probably quite astute about other people’s feelings.  At the time he considered all of his family to be sad, his father the saddest, he worries about both of his parents and about his father’s health, he views his parents as ‘hating’ each other, he had been exposed to their fighting – ‘mainly screaming at each other’ but there was one occasion his father ‘pushed’ his mother which gave him a fright.  He had no confidence their arguments and negative feelings would ever stop.  His three wishes were for his parents to be back together, to have a happy family, and his family to love each other.  He described what was occurring as ‘good’.  Asked how he might arrange his time between his parents, at first he did not wish to express a view on the one hand and then he indicated he wanted to live with his father and spend a lot of time with his mother.  He enjoys going to Portugal – he described it as ‘fun’ – but as for living there, he said he would find it hard to have so much less contact with his mother. 

1. While the mother was able to acknowledge in cross-examination that D is now saying he wants to live with his father and he is positive about going to live in Portugal, she says he is only a child. 

2. At 12 years of age it might be thought that some considerable weight could be put on his views about his future but that cannot be quarantined from the environment around him and the difficulty he confronts is apparent from the family report.  In any event, in part he did not want to choose where he lived and his wishes were all about healed rifts and the family reuniting.  None of that is indicative of a solid wish to live with his father and certainly not a solid wish to live with his father in Portugal.  This is not a deciding factor. 

(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

1. D was observed by the reporter to interact warmly with each of his parents, as they did with him, and he was said to be attached to both of his parents and loyal to each of them.  That is accepted.  He was also assessed as having a close relationship with his sister, which is also accepted. 

2. L did not attend the family report interviews and so there is no observation of her relationships from that perspective.  She appears to have a close relationship with her mother.  Reference has been made to ‘clashes’ with her father and it is difficult to know what impact if any that has had on their relationship.  He is obviously contemplating moving to Portugal at the end of the year and her remaining in Australia which he sees as her choice.  True it is she will have turned 18 by then, but she is only in her final year of secondary school and is yet to find her way as an independent adult. 

3. If D were to be living with his father in Portugal his relationship with his mother – assuming she did not follow - would be deeply affected, more particularly since he would not have the ameliorating influence of her company to counter his father’s message about her lack of worth.  If L chose to remain in Australia his relationship with his sister would also be deeply affected. 

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

[(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(a)      has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)      to spend time with the child; and

(iii)     to communicate with the child; and
  (b)      has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii)      spending time with the child; and

(iii)     communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. The father’s willingness to facilitate and encourage the relationship between D and his mother can be seen in a positive light in one respect by reason of his adherence to the orders and permitting extra time in the afternoons after school.  But willingness and ability is about more than permitting time and complying with arrangements put in place by interim orders while the final hearing is pending.  It is also about conveying a proper attitude and instilling in the child a respect for their other parent, essential components to any relationship being facilitated and encouraged.  Nothing said or done by the mother undermines D’s relationship with his father but the same cannot be said of the father whose attitude has been, and remains, one of unremitting criticism and abuse openly communicated to the children. 

2. While both parents can be said to have demonstrated proper attitudes towards their parental responsibilities - providing for the children’s physical care and supporting them in their upbringing in many ways – the father’s attitude towards their mother is an obvious and significant shortcoming in the way he manages his responsibilities.  It is also of concern that he would strike his daughter, heightened by the fact that he apparently sees nothing wrong in doing so.  Cultural differences can be dismissed as playing any part in that attitude because it is plainly unacceptable in any context.  Not only does hitting a child across the head pose a physical risk to the child, open hand or not, obviously it can also be humiliating for the child and engender feelings of powerlessness. 

3. The mother has a demonstrated commitment to the children and there is every indication that she is a loving parent who has insight into their needs and is capable of meeting those needs.  The reporter referred at paragraph 14 of the family report to her ‘quiet presentation’ although she had mentioned herself that she does have a temper. She denied in cross-examination having a ‘volatile temper’ – as she put it, everyone has a temper if people push you, you have to speak up, when something is repeated a thousand times you agree or you have to speak up, which is not to say you go and punch people or punch them out.  As I find, there is nothing about her temperament that raises concern.  She was able to acknowledge in the family report interviews that the children love their father, her anger towards him notwithstanding.  She has an appropriate attitude about protecting them from exposure to issues between the parents even though she might have gone about discussing with L her relationship with Mr H in another way [family report, paragraph 19].  She did change the orders sought after hearing the husband’s evidence by asking for D’s contact with his father to be subject to her agreement, but I do not doubt that if other more specific arrangements are imposed by orders she would comply with them. 

4. There is the question of what part Mr H is likely to play in her future which is not yet resolved.  Unless there is an order prohibiting D’s contact with him, as the father seeks, D would be having contact with Mr H whatever the outcome.  As their contact has been quite limited to this point that would be a new situation for D, more so if the relationship develops further towards living together or marriage.  But there is no justifiable reason to prohibit their contact.  Mr H impressed as an ordinary decent person with no apparent inflammatory temperament and there was nothing about him or his evidence to suggest it would be inappropriate for him to have contact with D.  More particularly, I am satisfied his mother can be relied on to make a sound parental judgment about her relationships and the environment she provides for the children. 

5. The father has also demonstrated a commitment to the children by the care he has provided since their birth.  He has undertaken that responsibility without their mother’s presence in the home for the past 20 months or so.  He has obviously been a good provider and I have no doubt he would continue to provide for their physical needs.  That is to his credit.  But his anger was undisguised during the report interviews and it remained so at the hearing - this has important ramifications for the children’s well being and inhibits his ability to meet their emotional and psychological needs.  Also, it has to be said, he does not appear to have thought through the move to Portugal or the implications for D and his relationships with his mother or his sister if they were to remain living in Australia.  Nor, it also has to be said, had he given any real thought to what it would mean for the children if he were to return to Portugal and they remained here.  The impression that the whole proposal has been ill considered was reinforced by his instructions to his counsel at the end of the case being entirely inconsistent with his unequivocal evidence earlier. 

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. If the mother’s application is successful D would move to live with her and see his father either as she agrees or at specific times provided in orders.  That would involve some change for him, but it would not be a stark or significant development since he already spends a considerable part of his time each week out of school hours at his mother’s home.  There could be no doubt he would make the necessary adjustment without difficulty.  L spends regular time at her mother’s, so living there would not interfere with their relationship as siblings.  However, it would be a significant change for D to have little contact with his father and probably he would have some difficulty understanding or adjusting to that if it came about.  That is an important consideration in arriving at the outcome. 

2. If he remains living with his father in Australia there would be no change but obviously it would be a vast change for him to be living in Portugal from the end of this year, more particularly if his mother and his sister remain in Australia.  There could be no doubt he would find it difficult to adjust to their absence and he would feel a great sense of loss – his remarks to the reporter point to that.  Such a move would also involve other significant changes for him: school system, leaving friends and the familiar fabric of his life here. 

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Provided both parents are living in Australia there would be no practical difficulty or expense affecting his right to maintain relations and contact with them on a regular basis.  Obviously that would not be so if he were to be living in Portugal.  The practical difficulties and expense of that scenario were not explored in the husband’s case – to see the gap bridged he puts forward no concrete plan of the kind that usually accompanies proposals for international relocation. 

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. This is not a factor of any particular relevance.  With a Portuguese father and a Spanish mother D was born in Australia, he was brought up here and over the years he has visited Portugal where there is extended family.  To the extent either of his parents has thought it important to instil in him knowledge and understanding of his European background and the language and culture of their birth, they can be taken to have done so and will continue to do so. 

(j) any family violence involving the child or a member of the child’s family

(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

1. There has been an apprehended violence order against the husband but that expired in early 2008. 

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. This is of no particular relevance. 

(m) any other fact or circumstance that the court thinks is relevant

1. It will be convenient here to summarise the advantages and disadvantages of the proposed relocation. 

2. The father puts forward none of the sort of proposals that normally underpin a plan to move a child to another country and nor does he lay out what plans he has for D’s arrangements in Portugal such as schooling and living arrangements, but more especially his communication with his mother and sister and the time he could spend with them if they remain in Australia.  This leaves the impression he considers these things of no importance and he does not appreciate their significance for D.  The move would satisfy his desire to return to his country of origin and therefore he would be happier, but it is impossible to have any confidence he would meet D’s needs to have his relationships with his mother and sister sustained.  While D might be familiar with his surroundings there and with the extended family around him, it would not be a holiday and he would have to adjust to quite a different environment.  How he would do that as well as cope with the sense of loss from the absence of his mother and sister is an unknown, but difficulties are very likely. 

3. Remaining in Australia, on the other hand, would give him the considerable advantage of his mother’s influence in his upbringing in a place where she wishes to live and it would also remove the prospect of a rift in the relationship with his sister who may not choose to follow him to Portugal.  These are both very significant relationships for D and it is vital to his future well being that they are supported. 

Conclusion

1. This is a clear case for the relocation proposal being rejected and for D to remain living in Australia.  By that he will have the considerable advantage of maintaining his relationship with his mother and having the benefit of her input into his day to day life and upbringing generally.  Likewise his relationship with his sister.  Living in Portugal with his father would leave him in the disadvantageous position of being exposed to his father’s extreme and negative attitude towards his mother which would not bode well for his own relationships in the future.  His father may be quite unhappy if he cannot go to Portugal with D and the discontent he feels may affect his ability to do the best he can as a parent if he chooses to remain.  But when this is balanced with all other considerations, D’s best interests require that he remain where his mother, who does not wish to relocate, can deliver to him the considerable benefits she offers for his upbringing. 

Parental responsibility

1. There is an obligation to apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility [s 61DA(1)] which does not apply if there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2)] and it may be rebutted if the evidence establishes equal shared parental responsibility would not be in the best interests of the child [s 61DA(4)]. 

2. This is a rare case where it could not be seen as consistent with this child’s best interests for there to be equal shared parental responsibility.  The father’s deeply hostile and disrespectful attitude towards the mother prohibits any prospect of there being some reasonable chance of discussion or cooperation or consultation about any major long term decision related to D’s upbringing.  True it is, as was pointed out, there has been no dispute about any such matter so far but that does not change the fact that if a situation does arise – and it could - there could be no realistic prospect of it being addressed in any constructive way.  The only practical answer is to give to the parent with whom D lives the responsibility for making major decisions. 

3. It follows there is no obligation to consider equal or substantial and significant time between the parents [s 65DAA].

Conclusion – living, time

1. The weight of the evidence overall indicates it would be in D’s best interests to live with his mother and spend regular time with his father.  He has a close relationship with his mother; she is a loving parent who is well attuned to his needs, including his emotional needs; she is capable of caring for him and supporting him in his day to day routine and upbringing generally and making major long term decisions with his interests to the fore; he would readily make the transition to her household; and unlike his father she has the restraint and maturity to ensure he has the proper direction for a healthy and balanced future.  That future would be significantly compromised by continuing exposure to his father’s bitter attitude towards his mother which must pose the risk that he may in time be instilled with a mirror attitude.  In his mother’s care his relationship with his sister will not be compromised. 

2. It is important nonetheless that he has regular contact with his father.  He loves his father, he worries about him as the family report reveals, and it is very likely he would not understand why he could not see him or spend time with him regularly.  Leaving that to be agreed by his mother is not likely to be constructive - quite apart from the obvious problems of constant negotiation, there needs to be certainty for D’s sake.  All things considered, a single block period with his father each fortnight during school terms will involve D changing households less frequently than other proposals and give him a better chance of stability by letting him settle into a routine.  Collection from school every second Thursday afternoon and return to school on the following Monday morning would see D with his father four nights a fortnight including a full weekend and that arrangement would allow his father to be involved in his schooling if he wishes.  School holidays can be spent equally between his parents and provision can be made for special occasions.  The orders set out earlier are designed to bring this about. It follows from what has been said already that no order will be made prohibiting any contact between D and Mr H. 

Property

1. There are no further material facts. 

Assets and liabilities

1. There are several differences about what items are to be included in the calculation of the parties’ net assets: (i) whether the Daihatsu motor vehicle and a four wheel drive bike purchased by the husband are to be excluded; (ii) the amount to be brought to account for one of the husband’s bank accounts; (iii) whether the money he has in another account should be increased from $41,000 to the $92,213 he withdrew from the account in September 2007 and (iv) whether or not paid legal fees should be added back to their assets. 

2. As for (i), counsel for the husband submits it should be excluded effectively because it constitutes trust property, it was acquired from his damages award, and the Daihatsu was intended for L when she turns 18 – one of the orders he seeks assures she will receive it.  But this is not persuasive.  There is nothing but the husband’s statement about his intention which is unsupported by anything else to justify excluding these items.  It is proper to include them as assets and have regard had to the source of funds to acquire them when evaluating contributions.  If he wishes to gift the vehicle to L he may do so and the same goes for the bike. 

3. As I apprehend it the wife’s counsel submits that the husband’s bank account should be included at $5,378 and not $1,356 as he contends because the former is to be found in his financial statement of 27 September 2007.  But there is no merit in this.  Current assets are brought to account for the purpose of assessing contributions to them, save for some exceptional reason which is not available here. 

4. As for the proposition that the balance of $41,000 should be increased to the $92,213 the husband withdrew in 2007, his counsel submits this should be rejected because adding it back would be contrary to authority such as Chorn and Hopkins (2004) FLC 93-204, SMB and MFB (2006) FamCA 46 and Gollings and Scott (2007) FLC 93-319. On the other hand, as I see it, exercising the discretion to bring to account the amount he withdrew would be consistent with Townsend (1994) 18 Fam LR 505, (1995) FLC 92-569 which is well known authority for the proposition that funds expended or disposed of by one party after separation, to which the other party has contributed or in which that party has a legitimate interest, may be brought back to account in the available assets. Since the money he deposited in 2004 and later withdrew was employment related benefits to which the wife had contributed over the years of his employment with the construction company, that points in the direction of adding it all back. Yet that is complicated by the fact that he spent some unspecified part of it addressing some issue related to the jointly owned property in Portugal – had the amount spent been stated it might have been quarantined as a proper joint expenditure and the balance brought to account. Even so, if the money spent in Portugal were quarantined, there would be a question of how to approach his expenditure of the rest of it on living expenses which might have to take account of the fact that at the same time he was spending this he had income from the from his investment and he did have exclusive occupancy of the home. In the final analysis these complications suggest the preferable course is to bring to account the balance of $41,000 and have regard generally to the manner in which the rest was spent when evaluating contributions.

1. As for the legal fees paid, the argument for the wife is that both should be included whereas the husband argues they should both be excluded - of course there is a significant difference in what each has paid.  The husband’s had to come from the interest earned on the money invested and the wife’s had to come from her work earnings.  The source being ‘post-separation earnings’, the decision falls into an area fraught with pitfalls for the exercise of discretion to include or exclude. 

2. Turning first to Chorn and Hopkins (supra) - paragraphs 58 being the more relevant for present purposes - this is said:

   ‘56.     In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial judge, in determining how to exercise that discretion, regard should be had to the source of the funds.

   57.      If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.

   58.      If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties.  Funds generated from assets or businesses to which the other party has made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.’

   59.      Outstanding legal fees themselves are generally not taken into account as a liability.

   60.      If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.’

3. Then there is Gollings and Scott [2007] FamCA 397 where the trial judge was held, first, not to have erred by excluding $17,000 the wife paid towards her legal costs [despite being raised from the sale of a motor vehicle retained at separation] and, secondly, to have erred by including as an asset $72,000 the husband had given to his partner towards the acquisition and renovation of her property.

4. Yet the exclusion of the money raised from the sale of a motor vehicle in Gollings and Scott might be seen as inconsistent with what was said at paragraph 57 of Chorn and Hopkins and also inconsistent with Townsend (supra) in so far as it is was a premature distribution of an asset.  The error by including the money the husband had given to his partner arose from due regard not being paid to what had been said in C and C (1998) FamCA 143 about people being able to get on with their lives after separation [in that case money had been given to assist an adult child] which led to the statement at paragraph 68 in Gollings and Scott that as a general rule once parties have separated - provided obligations of maintenance and support are properly met and subject to considerations related to waste and the like as discussed in Kowaliw (1981) FLC 91-092 - each party is entitled to get on with their lives independently of the other. To this there can be added the caveat in paragraph 58 of Chorn and Hopkins; namely, funds generated post separation and used to pay legal fees would not generally be added back but if they are generated from assets or businesses to which the other party has made a significant contribution or has an actual legal entitlement they may need to be looked at differently. 

5. On one reading of it, there are pointers in the direction of the legal fees the husband paid being added back because he paid it from funds generated by capital available to him from his personal injuries claim to which the wife had made some [though perhaps not ‘significant’ per paragraph 58] contribution in the years between 1999 and when he received it in 2005, as his own case in the claim suggested, and her other contributions continued thereafter.  In any event in my view it would be proper to include it.  First principles suggest it is sound to add back whatever has been sent off in the direction of legal fees in the cause of the litigation - bringing to account at the same time any loan to pay them if that is relevant - even if the source has been earnings post separation.  Theoretically at least if the legal fees had not been paid the money would be sitting in the bank account, and the unquestioned approach to money in a bank account is to include it as an asset at the current balance and consider its source in the process of evaluating contributions.  Furthermore, though not relevant to the particular circumstances here, excluding amounts paid for legal fees to conduct the litigation also sits rather oddly with statements in authorities that one of the most valuable ‘assets’ a party can take away from the marriage is their earning capacity. 

6. The husband has income tax debts which he has not paid, but while the wife has paid the tax on her income received there has been no argument about these being deducted. 

7. I find the assets and liabilities to be as follows:

   Joint

   Property at M              335,000

   Debt to Citibank  105,000   230,000

   Property Portugal   125,000

   234 IAG shares            884

   355,884

   Husband

   Subaru Forester vehicle   17,000

   Household contents   5,000

   Bank of Queensland account           800,000

   540 IAG shares   2,041

   BMW motor bike   23,000

   Yamaha 4WD bike   2,500

   Daihatsu vehicle   12,000

   NAB account   1,356

   Bank of Queensland account             41,000

   Paid legal costs     48,347

   952,244

   Less:

   2008 income tax          5,256

   BAS payment     3,529             8,785   943,459

   Wife

   427 IAG shares   1,614

   Household contents   1,000

   Paid legal costs       3,120      5,734

   Superannuation - Hesta fund   34,500

   Total net assets:  1,339,577

Contributions

1. In setting out the parties assets and liabilities above, I have rearranged them into groups for the convenience of seeing what they would each retain and that is not meant to convey the impression their contributions are being evaluated by anything other than a global basis [Norbis (1986) FLC 91-712] which is the basis on which counsel made their submissions and this is not a departure from that.

2. Contributions run over a period of almost 20 years from the date of their marriage to the present time.  There were several significant changes over those years: the thirteen years to July 2002 when it is common ground their marriage broke down although they remained living in the family home and applied their incomes as they had before; the three years to May 2005 when the husband received his damages for injuries sustained in 1999; the two further years to June 2007 when the wife left and established herself elsewhere; and the 20 months or so until now. 

3. Neither had any assets initially, they both worked in Portugal and later in Australia.  There was a period early on when the husband was not in paid work and over the years there were periods when the wife was not earning income, such as around the birth of the children.  But they contributed what they earned for common purposes and to the extent the husband’s employment was interrupted by his accident he received workers compensation and other payments in lieu of wages.  To the extent the husband was working long hours before his accident it can be inferred the wife took the primary responsibility for the children and the running of the household and after his accident there were limitations on the contribution he could made on the domestic front although he did take on some things he had not done previously.  It is also accepted, consistent with the case he presented, that the wife had additional responsibilities by reason of her care for him after his accident.  They saved what they could and were able to purchase the two properties they retain and service the debt raised for that purpose while using other money for trips back to Portugal.  That was their situation when their marriage broke down in 2002, both can be seen as having contributed as best they could to that point and nothing would rank one above the other. 

4. Despite the breakdown of their marriage for the next three years they remained living in the unit and contributing their income for common purposes.  As before, they each took some responsibility for household chores and the children’s arrangements, but again the wife is to be seen as having the primary responsibility in these areas and she also continued to provide some care for the husband.  It was in this period that he received his employment related benefits of over $92,000 which he used to discharge debt before he redrew it three years later.  Both can be seen as having contributed to those entitlements, albeit indirectly in the wife’s case. 

5. The receipt of his damages award in May 2005 saw the husband make contributions from those funds by paying the debt on the Portugal property, paying for a family holiday to Portugal and buying a car.  All of that was for the family benefit.  He invested $800,000 which he still retains and he contributed the income generated on that.  They continued to live in the M unit and the wife continued to work and contribute her earnings as she had before. 

6. When she left the home in June 2007 the wife withdrew some money from the Citibank account which could not be seen as unreasonable in the circumstances. Not long afterwards the husband increased the debt by redrawing the $92,000 he had received three years earlier and there is now $41,000 left.  Some of it went towards sorting out an issue with the apartment in Portugal and the rest he spent on living expenses despite also having available the income earned on the investment.  In the 20 months they have lived separately they have both contributed by taking a share of responsibility for the children and by meeting a share of the costs of their upbringing.  To the extent the husband was paying for most of their costs he had the advantage of the use of the M unit while the wife has been paying rent.  At the same time he has reduced the debt by a relatively small amount and he has maintained the unit and seen to whatever has been necessary with the Portugal property. 

7. Plainly his damages award is a significant component of the available assets and it is reflected not only in the funds on term deposit but in other assets as well as the Portugal property being free of debt.  This is a factor of very considerable weight in the husband’s favour.  That is not to say the wife did not make any contribution to it – obviously she did, as the husband himself argued in the case put before the Assessor – but plainly the overwhelming contribution is the husband’s.  The statement by the majority in Aleksovski v Aleksovski (1996) FLC 92-705 to follow does not detract from that:

   ‘In our opinion, in most cases, a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury. It should not be considered in isolation, for the reason that each and every contribution, which each of the parties makes to the relationship, must be weighed and considered at the same time.’

8. The question comes down to the comparative weight to be given to all these contributions of various kinds over many years.  Counsel for the husband argues they would be recognised in an assessment of 85:15 in his favour while the case for the wife contends for an apportionment of 70:30 in his favour.  My own view is that both are probably outside the proper range - I see the former as undervaluing the weight of all the wife’s contributions and yet the latter does not give sufficient emphasis to the proportionality of the husband’s damages to the whole of their net assets.  In my assessment a more appropriate adjustment would be 20:80 in the husband’s favour.  That would see the wife with assets worth $267,915 and the husband with $1,071,661. 

Section 75(2)

1. Obviously the husband will retain property worth considerably more than what the wife will receive.  At the age of 41 years she has the capacity to continue working and supporting herself.  Her wage, however, is relatively modest.  It is difficult to say to what extent if any her relationship with Mr H will operate as a financial resource for her since there is no certainty about the future there, but in any event his circumstances appear to be relatively modest and have no real impact here. 

2. The husband is aged 47 years.  There is a submission from the wife’s counsel that he has a capacity for some work.  That is supported by reference to an earlier report about his health, what sort of work the husband thought he could do after the accident, and the view that getting work would have positive affect on him.  Despite Dr B expressing the unchallenged opinion in November 2008 that he is probably only fit for 3-4 days a week of the most sedentary work possible, it is said that he has some physical capacity because he can manage his 220 kilogram touring motor cycle and ride around on the back of the 4 wheel drive bike.  He had not looked for work and therefore he had not demonstrated that he could not get work if he tried. 

3. These points are fair enough as far as they go.  There is the ‘concession’ from Dr B that he could do at least some sedentary work which he has not made any attempt to find so any possibilities there remain unexplored.  And yet the submission tends to discount other important factors.  His work experience was as a labourer and no one is suggesting he is able to do that kind of work anymore.  He has limited education and there are limits on his English and both are barriers to work which is not physical.  Furthermore, he has other health problems quite apart from the legacy of his injury - diabetes, hypertension and depression along with a history of heart disease - for which he takes multiple medications.  Finally his age and his long absence from the workforce are likely to operate against him getting back into the paid workforce. 

4. In the final analysis it must surely be possible for him to take up the suggestion of some sedentary work, even if that involved some retraining, although what he is likely to earn would be modest. Yet for present purposes he has to be seen as having a very limited capacity for work and probably he will have to rely on his capital to generate income for his own support and see to his responsibilities to the children. Obviously the level of his income will depend on the capital he retains and the interest rate he can secure. It will be relatively modest, but so too is the wife’s income. I should note here that there was mention in submissions about whether or not he could claim social security benefits before 2025 as stipulated in the award of damages and counsel have provided a reference to s 1184K Social Security Act 1991. But having looked at that, whatever might be its interpretation, the best that can be said is that this prospect does not succeed in making the move from the realms of the possible to the probable and so it can be put aside.

5. It remains to say that the wife will have the greater responsibility for D’s care.  At 12 years of age there are still a number of child rearing years ahead of her.  It is assumed his father will contribute whatever he is obliged to pay by way of child support and so there is likely to be some financial assistance as well as the assistance provided in the time D will spend in his care. 

6. When these matters are balanced the result is a relatively small weighting in the wife’s favour, which would have been greater because of her responsibility for D but for the consideration that the husband has very limited capacity for work and therefore limited opportunity to supplement the income able to be generated from the capital he will have left to invest.  The submission for the husband that there be no adjustment is therefore rejected but the submission by her counsel for a further 20% would see the result well outside the just and equitable range.  An adjustment of approximately 5% in the circumstances would be appropriate. 

Just and equitable

1. This means the wife would receive an overall entitlement of 25% and the husband 75% of their net assets.  It would give her assets to the value of $334,894.  She has assets with a total value of $40,234 – albeit most of that is superannuation and not presently available to her – and therefore she will have to be paid an amount of $294,660 which I round up to $300,000 therefore putting her 75(2) entitlement at just a little over 5%.  That would leave the husband with assets of just under $1 million [$999,343].  Both seek orders to retain the M unit but this was not developed in submissions and in my view it would be unconstructive to provide for its transfer to the wife.  Given the husband is to retain it, the assets he will retain are the M unit as well as the Portugal apartment, vehicles and what there is in bank accounts, a large part of his legal fees will have been paid and he will have around $500,000 capital left to invest.  If more capital is required to generate income he liquidate some of his other assets such as the BMW motor bike and consider selling the Portugal apartment to boost his investments. 

2. I am satisfied orders to this effect will achieve a just and equitable outcome. 

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: