SMIRNOV & SMIRNOV
[2010] FMCAfam 1358
•8 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SMIRNOV & SMIRNOV | [2010] FMCAfam 1358 |
| FAMILY LAW – Parenting – whether equal shared parental responsibility – not in their best interests to split twins living arrangement. FAMILY LAW – Property – Husband to retain family home – in best interests of children to continue to live in family home – whether inheritance part of the pool – just and equitable. |
| Family Law Act 1975, ss.60B(1), 60CC(3), 61DA(2), 65DAA, 75(2), 79(4) |
| Bonnici v Bonnici (1992) FLC 92-272 Stewart & Stewart [2008] FMCAfam 22 |
| Applicant: | MR SMIRNOV |
| Respondent: | MS SMIRNOV |
| File Number: | MLC 9407 of 2009 |
| Judgment of: | Turner FM |
| Hearing dates: | 6 – 9 September; 17 November 2010 |
| Date of Last Submission: | 17 November 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 8 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ambrose |
| Solicitors for the Applicant: | Kennedy Guy |
| Counsel for the Respondent: | Mr Crozier-Durham |
| Solicitors for the Respondent: | Calleus Le Brun & Burke Solicitors |
ORDERS
Parenting Orders
All previous parenting orders are terminated.
The parents have equal shared parental responsibility for the children [W] born [in] 1993, [X] born [in] 1997, [Y] born [in] 2002 and [Z] born [in] 2002.
[W] and [X] (the “older children”) are to live with the husband.
[Y] and [Z] (the “twins”) are to spend equal time with each parent by living with them on a week about basis. They are to live with the wife for the week commencing from after school on Friday 10 December 2010 until before school the following Friday, and alternate weeks thereafter. In non-school weeks the times are from 3.30pm on Friday until 8.30am on the following Friday.
The twins are to live with the husband every second week, between the same times as ordered for the wife.
The children [W] and [X] are to spend time with the wife from 10am to 6pm each second Saturday that the twins are living with her commencing on 10 December 2010.
The twins are to spend time with the wife:
(a)For one half of each school term and summer holiday period, alternating between the first and second half of the holidays in each year; The remainder of the holidays are to be spent with the husband.
(b)From 9am to 6pm on Mother’s Day;
(c)On each child’s birthday at times agreed between the parties, or failing agreement from 9am to 2pm;
(d)On Christmas Day at times agreed between the parties, or failing agreement from 9am to 2pm;
[W] and [X] spend time with the wife as agreed between the parties and failing agreement between 9am to 2pm on the children’s birthdays.
[W] and [X] are to spend time with the wife during holidays as set out in the regime above, or at further times at their option.
All children are to spend time with their parent for three hours on that parent’s birthday, and all other orders are suspended for that time.
Changeovers are to occur at the children’s schools, or on non-school days, at the [omitted] Store, or at an agreed alternative location.
Each parent is to provide the other with their current contact telephone numbers, and inform them of any changes thereto.
The children and the parties are free to communicate with each other at all reasonable times.
The husband and wife are to ensure that the children attend sporting commitments on weekends as required.
The husband and wife are to ensure that the children have lunch to take to school and that the children are punctual in attending and leaving school.
Both parties are restrained from denigrating, or allowing any other person to denigrate, the other party within the hearing of the children.
Both parties are restrained by injunction from physically disciplining the children.
The wife is to comply with treatment recommendations by Dr B or any other of her treating professionals.
The wife is to attend a family support worker at [omitted], and comply with any recommendations thereby.
Each party is to comply with any reasonable recommendation by a school principal or welfare officer, in relation to the children.
Both parties are to attend a Post Separation Parenting Program.
Each parent is to keep the other advised of any injury or illness any of their children suffers while in their care.
Each parent is to keep the other advised of the children’s progress at school.
Each parent is free to attend the children’s school and make enquiries as to their progress.
Both parents are permitted to attend the children’s school and extra curricular functions or events that are normally attended by parents.
The above orders other than those relating to attendance at parenting programs, obeying treating professionals, non-denigration and no physical discipline are subject to variations by a subsequent parenting agreement that may be reached between the parties, in accordance with the Family Law Act 1975 (the “Act”).
Property Orders
The Court orders that the pool be divided 60/40% in favour of the husband.
The wife is to transfer the property at Property H (the “Property H property”) to the husband at his expense contemporaneously with the payment by him to her of $82,025.00., which is to occur on or before 15 January 2011
(a)The Court orders pursuant to s.106A of the Act that should the wife fail to execute the documents necessary to transfer the Property H property to the husband, the Registrar of the Federal Magistrates Court of Australia is appointed to execute those documents.
The husband is to indemnify, and keep indemnified, the wife against all liability under the mortgage on the Property H property and arrange for the mortgage to be refinanced in his sole name.
Whenever an entitlement becomes due under the husbands superannuation, 40% is to be paid to the wife.
The husband is to pay all outstanding and further rates and charges on the Property H property, and keep the wife indemnified against the same.
The parties are to retain the motor vehicles in their possession.
The household furniture and chattels as at separation are to be divided 60/40% in favour of the husband who needs to provide accommodation for five people.
The matters are removed from the list of pending applications.
IT IS NOTED that publication of this judgment under the pseudonym Smirnov & Smirnov is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9407 of 2009
| MR SMIRNOV |
Applicant
And
| MS SMIRNOV |
Respondent
REASONS FOR JUDGMENT
The parties in this matter married in December 1993 and separated on 29 September 2009. There are four children of the marriage [W] born [in] 1994, [X] born [in] 1997 (they will be referred to collectively as “the older children”); [Y] and [Z] born [in] 2002 (they will be referred to collectively as “the twins”).
By application filed on 20 October 2009 the husband applied for parenting and property orders. Interim orders were made by consent on 24 November 2009 that:
·The older children live with the husband and spend time with the wife.
·The twins live with the wife and spend time with the husband.
Various other orders were made.
The matter came on for final hearing on 6, 7, 8 and 9 September, and 17 November 2010. Mr Ambrose represented the husband and
Mr Crozier-Durham represented the wife.
The husband seeks orders:-
Parenting
·That the parents have equal shared parental responsibility for the four children.
·That the four children live with him.
·That the twins spend time with the wife on alternate weekends, for half of school holidays, on mother’s day, and on the children’s birthdays.
·That the older children spend time with the wife on Saturday each fourth weekend.
Various other parenting orders are sought.
Property
·That the wife transfer to the husband the former matrimonial home at Property H (“Property H”).
·That the husband indemnify the wife in respect to the mortgage over Property H.
·That the husband make a cash payment to the wife.
·That the parties combined superannuation be split 50/50%.
·That the parties retain their motor vehicles and chattels in their possession.
The wife seeks orders:-
Parenting
·That the parties retain equal shared parental responsibility for the older children. (The Court notes that an order has not yet been made as to equal shared parental responsibility for the children).
·That the wife have sole parental responsibility for the twins.
·That the older children live with parties according to the children’s express wishes. (At the hearing on 17 November 2010, Mr Crozier-Durham stated that the wife is not pressing for an order that the older children live with her, although that application was not abandoned).
·That the twins live with the wife and spend time with the husband on alternate weekends and Thursday nights.
·Various other orders.
Property
·That the husband transfer his interest in Property H to the wife.
·That the wife indemnify the husband in respect to the mortgage and outgoings on Property H.
·That the husband’s superannuation entitlements be split so that the parties receive equal superannuation entitlements.
·That the wife pay the husband $50,925.00 within 90 days of the orders.
·That the parties retain their motor vehicles and chattels in their possession.
Parenting matters
Section 60B(1) of the Family Law Act1975 (the “Act”) provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)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; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Equal shared parental responsibility
The older children
The wife does not press for an order that the older children live with her. She does however seek joint parental responsibility for them. There is a history of family violence involving the wife and both of the older children. The wife admits biting [W] because she says that he was choking her, and states that [W] has given her “black eyes” (Family Report released 29 July 2010 “FR” [29]).
The wife gave evidence that [X] had slammed a car door on her head saying that she “deserved to be hurt” (Transcript “T” 17/11/2010 p.91, l.27). The wife admits having hit [X] (T 17/11/2010 p.93, l.2). [X] told the family report writer that “she’s just like ruined my life” (FR at [44]). It is admitted that the wife slapped [Z] across the neck because he kicked her in the stomach and punched her (T 8/9/2010 p.138, l.15; p.167, l.7; p.179, l.44). [Z] told the family report writer that his mother hurt him with a rolling pin (FR [52]) and that he had been slapped in the face by his mother (T 17/11/2010 p.101, l.25).
[W] told the family report writer that the wife “hit (him) with a rolling pin…snapped a wooden spoon…put chilli powder all over my face and my eyes” (As to the chilli see T 9/9/2010 p.236, l.3). He stated that he “fights with his mother and does not want to see her” (FR [37]).
The presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them, does not apply:
if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence [s.61DA(2) of the Act].
There are reasonable grounds to believe that the wife has engaged in family violence against [W], [X] and [Z]. However, in circumstances where the husband is seeking equal shared parental responsibility for all of the children, the Court orders that the parents have equal shared parental responsibility for the older children ([W] and [X]).
The twins
The wife seeks sole parental responsibility for the twins, based on alleged family violence towards her by the husband, and the inability of the husband and wife to communicate effectively. On the evidence, the Court is satisfied that the husband has been violent towards the wife (refer Exhibit R3). However the Court finds that the presumption is not rebutted and orders that the parties should have equal shared parental responsibility for the twins (s.61DA).
Having ordered equal shared parental responsibility for all the children, the Court must next consider whether the children should spend equal time with each parent.
Equal time with [s.65DAA(1)(a)]
The older children
The Court does not consider that it would be in the best interest of the older children to spend equal time with the wife. There is a history of violence between the wife and the older children [s.60CC(3)(j)] and they do not want to see or live with her. The wife gave evidence that had the older children been living with her since separation, it would have been more tumultuous (T 9/9/2010 p.24, l.30) [s.60CC(3)(a) and (m)]. The Court gives these factors great weight.
The Court finds that it would be in the best interests of the older children for them to live with the husband and so orders.
The Court finds that it would not be in the best interests of either of the older children to spend equal time with the wife and that it would not be reasonably practicable, given the animosity that exists, and the history of violence [s.65DAA(1)(b)].
In reaching that conclusion the Court has had regard to the factors in s.65DAA(5):
a)The parents live in reasonable proximity to each other.
b)The parents would find it difficult to force the older children (who are 16 and 13) to spend equal time with the wife, when [W], in particular, does not want to see her (FR [37]) and [X] believes that “she’s just like ruined my life” (FR [44]).
c)The parents have very limited capacity to communicate with each other to resolve difficulties that might arise from such an arrangement s.65DAA(5)(b) and (c).
d)Given the history of the poor relationships between the wife and each of the older children, the impact on them of being forced to live with the wife could be severe, and cause further problems.
e)Relevant matters are that the report writer recommends the older children spending only from 10am to 6pm on one Saturday out of three weeks with the wife, and the wife believes that if the older children had lived with her since separation, things would have been more tumultuous (Supra).
The Court therefore will not make an order that the older children spend equal time with each parent.
The twins
The Court must consider next whether the twins should spend equal time with each parent.
The husband seeks that the twins live with him; the wife seeks that they live with her. [Z] says he wants to live with his father and brothers (FR [72]). He perceives his brothers as a “support and protection for him against the wife and other adults”. He is:
“distressed and unsettled and he will require patience and understanding from both his parents to develop feelings of security and confidence” Ibid [72];
“…moving him from his home environment and twin sister would not necessarily resolve those feelings”. Ibid [73];
“Separating [Y] and [Z] may have unexpected and undesirable consequences for both of them, since they have never lived apart and apparently get on well together. This relationship is likely to be contributing to the resilience of both of them currently” Ibid [75].
The Court finds that it would not be in the best interests of the twins to separate them from each other [s.60CC(3)(d)(i) and (ii)]. The Court gives that factor significant weight.
[Y] wants to live with the wife; [s.60CC(3)(a)]. She is well settled there and the report writer is of the view that she is happy there and is the best adjusted of the four children.
The report writer gave evidence that it is not in the best interests of [Z] to have another big change in his life and move to live with his father [s.60CC(3)(d) and (m)], and that a move would make it more difficult for him to settle down. The Court gives this factor significant weight [s.60CC(3)(m)].
The Court considers that it would be in the best interests of the twins for them to have a meaningful relationship with both parents [s.60CC(2)(a)].
The Court has regard to the factors in s.65DAA (5) as follows:-
a)The parents live in reasonable proximity to each other and to the children’s schools.
b)The animosity that exists between the older children and the wife does not exist between the twins and either parent. [Z] has expressed a desire to live with his father and brothers. [Y] is coping best with the family situation and wants to live with the wife.
c)Although the parents have limited capacity to communicate, the lack of animosity between the twins and their parents should enable the parents to be able to resolve difficulties that arise.
d)[Z] has expressed a strong desire to live with his brothers and father. As [Y] will be living with [Z] when she is spending time with her father, and as she is coping the best, the new arrangement should not have an adverse impact on her.
e)The twins spending equal time with the father will enable them to spend more time with their brothers, and enable them to strengthen their bonds.
The Court has concerns about the ability of the wife to provide for the needs of the twins as the report writer has concerns about the ability of the wife to care for the twins if she does not get her depression and anxiety under control (T 17/11/2010 p.101, l.39). There are less concerns about the ability of the husband to provide for the needs of the twins. He lives with his parents and other members of his family, who are able to assist him in caring for the children when he is not there. If he moves into Property H, one of his sisters has agreed to live there to assist him with the children (T 6/9/2010 p.31, l.47). He has some history of violence towards the children [s.60CC(3)(j)], and the wife alleges that he kicked [W] in the testicles (T 11/10/2010 p.95, l.40 and Exhibit R13). [W] did not say anything to the report writer about the alleged incident and the Court is not able to find whether it was deliberate or accidental.
[Y] has expressed a desire to live with the wife and it would be a major change to order equal time with her father [s.60CC(3)(d)]. The practical difficulty of the father getting the children to and from school is reduced by his sister offering to assist him [s.60CC(3)(m)]. Ordering that the twins spend equal time with the father would bring all the children together at times and present them with more opportunities to develop their relationships with each other [s.60CC(3)(m)]. The Court gives this factor significant weight.
The Court finds that it would be reasonably practicable for the twins to spend equal time with each parent.
The Court finds that it would be in the best interests of all four children for the twins to spend equal time with each parent [s.60CC(3)(m)]. The Court therefore orders that the twins spend equal time with each parent by living with them on a week about basis.
Commencing on Friday 10 December 2010, the twins ([Y] and [Z]) are to live with each parent on a week about basis from after school on Friday until before school the following Friday or at non school times from 3.30pm on Friday until 8.30am on the following Friday. Changeovers are to occur at school or on non-school days at the [omitted] Store, or other venue agreed by the parties. The twins are to spend time with the wife for the week commencing 10 December 2010 and each alternate week thereafter. The Court does not follow the family report writer’s recommendations that the twins live with the wife and spend time with the father on two weekends out of three, because having decided on equal shared parental responsibility, the Court must consider whether equal time is in the best interests of the children and whether it is reasonably practicable [s.65DAA(1)]. The Court has decided that it is. That is not an issue that Ms E had to consider.
Substantial and significant time
The Court must now consider whether the older children should spend substantial and significant time with the wife.
The Court applies the same factors that militate against the older children spending equal time with the wife. Those factors apply to the issue of them spending substantial and significant time with her. The Court finds that to do so would not be reasonably practicable.
In reaching that conclusion the Court has regard to s.65DAA(5) of the Act:
a)The parents live within reasonable proximity of each other.
b)The parents may not have the capacity to arrange for the older children to spend substantial and significant time with the wife, as the older children will resist such an arrangement.
c)The parents have very limited capacity to communicate with each other to resolve difficulties that might arise from such an arrangement.
d)Given the history of the poor relationships between the wife and both older children, the impact of trying to force the older children to spend substantial and significant time with the wife could be very negative and cause more problems.
e)A matter the Court considers relevant is that the report writer recommends that the older children spend time with the wife on one Saturday in a three week cycle from 10am to 6pm and that they be allowed to decide when they communicate with the wife.
The Court finds that it is not in the best interests of, and not reasonably practicable for, the older children to spend substantial and significant time with the wife.
The wife seeks that the older children spend time with her from 10am to 6pm on the Saturday of any weekend that the twins are spending time with her. The husband seeks that the older children spend time with the wife from 10am to 6pm on one Saturday in four weekends to coincide with the twins spending time with her.
Given the arrangements decided for the twins, the husband’s proposal would result in the older children spending time with the wife on two Saturdays each five weeks. The report writer recommends one Saturday in three weeks.
The Court accepts the husband’s proposal and orders that the older children ([W] and [X]) spend time with the wife from 10am to 6pm on each second Saturday that the twins are spending time with the wife, with the first Saturday to be 11 December 2010.
School holidays
The Court accepts the husband’s proposals and orders accordingly, that the twins spend time with the wife:
·For one half of each term and summer holiday period;
·On Mother’s Day from 9am to 6pm;
·On the children’s birthdays at times that may be agreed, and failing agreement from 10am until 2pm; and
·On Christmas Day at times that may be agreed and failing agreement from 10am until 2pm.
The children are to spend time with their parent for three hours on that parent’s birthday, and all other orders are suspended for that time.
The older children are to spend time with the wife during school holidays according to the regime above.
The Court makes the following further orders:
·That the children and the parties be free to communicate with each other at all reasonable times.
·The husband and wife are to ensure that the children attend sporting commitments on weekends as required.
·The husband and wife are to ensure that the children have lunch to take to school and that the children are punctual in attending and leaving school.
·Both parties are restrained by injunction from physically disciplining the children.
·Both parties are restrained from denigrating, or allowing any other person to denigrate, the other party in the hearing of the children.
·The wife is to comply with treatment recommendations by Dr B or any other of her treating professionals.
·The wife attend on a family support worker at [omitted], and comply with any recommendation thereby.
·That each parent provide the other with their current contact telephone numbers, and inform them of any changes thereto.
·That each parent comply with any reasonable recommendation by a school principle or welfare officer in relation to any of the children.
·All previous parenting orders are terminated.
Property matters
The following agreed Schedule of Assets became Exhibit R15.
Former Matrimonial Home
(Property H) $420,000.00
Husband’s Inheritance
(Property E & Cash Exhibit R14)) $17,250.00
Chattels (parties to retain those in their possession)
Motor Vehicles (parties to retain)
Mortgage Loan
(Former matrimonial home) $207,000.00
Utility Arrears
(on former matrimonial home) $3,000.00
Nett non- superannuation assets $227,250.00
[L] Super (Wife) $1,535.00
[H] Super (Wife) $13,256.00
$14,791.00
[M] Super Fund (Husband) $33,608.00
Total $48,399.00
50% of husband’s superannuation $24,199.50
less $14,791.00
Split to wife $9,408.50
Initial financial contributions [s.79(4)(a)]
At the commencement of the relationship the husband had a motor vehicle worth $1,000.00, and the wife a motor vehicle worth $14,000.00 (Affidavit of Ms Smirnov affirmed 19 November 2009 at [50]).
The parties married in 1993 and purchased their first home in 1996. The wife’s family contributed funds towards the purchase and furnishing of that home being $12,000.00 (Exhibit R11), and it is alleged, cash of $6,000.00. The husband cannot deny those figures
(T 7/9/2010, p.85, l.10; p.102, l.43; T 8/9/2010 p.135, l.36).
It is submitted for the husband that the marriage lasted 16 years and that he was the primary income earner and the wife the primary homemaker. The first home was sold in 1999 when the parties purchased the home in Property H. The husband submits that the parties’ contributions have been equal [s.79(4)].
The wife contributed a redundancy payout of $21,101.00 on 25 June 2008 (Exhibit R9). Mr Ambrose argued that the redundancy payment should not be regarded as a contribution by the wife as although she paid it off the mortgage (Exhibit R9 refers), during her occupation of Property H since separation in September 2009, she has not made mortgage repayments. As a result of which the mortgage fell into arrears and the husband had to enter into an agreement with the Bank to pay $511.00 per week to stop the Bank taking action (T 17/11/2010, p.144, l.15-40).
The Court finds that the wife’s actions to some extent have offset the contribution, and has regard to this factor in assessing that the parties’ financial contributions have been equal.
The wife’s evidence is that she has paid only one mortgage instalment since separation (T 9/9/2010 p.266, l.20).
Exhibit R10 shows that the husband had an income from July 2009 to January 2010 of $37,750.00, which averaged between $800.00 and $1,100.00 per week. The wife was earning around $535.00 per week (Financial Statement filed 3 September 2010). Although there is an allegation that the husband hoarded his income, there is no evidence that this is so (T 17/11/2010 p.147, l.22). There is no evidence that both incomes were not contributed to the family’s expenses.
The husband’s inheritance
The husband is to inherit approximately $13,375.00 as a beneficiary of his uncle’s estate (Exhibit R14 relates). The uncle is deceased and the estate is being administered. The amount is relevant under s.79(4)(e) and s.75(2)(b) of the Act as a “financial resource of the husband”. That is how Mr Crozier-Durham submits that it should be considered.
The inheritance does not become part of the property pool. It is well established that an inheritance received at the end of, or after, a marriage devolves, in the absence of other intent or compelling circumstances, solely to the benefit of the party that receives it: Stewart & Stewart [2008] FMCAfam 22 per FM Burchardt referring to Bonnici v Bonnici (1992) FLC 92-272
The Court decides that the inheritance of $13,375.00 should not be added to the pool of assets to be divided between the parties. It is however a financial resource of the husband and therefore relevant [s.75(2)(b)]. Exhibit A1 states that a half share of the estate has been left to the husband and his seven siblings. This means that the husband’s interests will be $246,000.00 ÷ 2 = $123,000.00 ÷ 8 = $13,375.00 approximately, as costs will have to be deducted.
The Court notes that the figure of $17,250.00 has been agreed (T 17/11/2010 p.143, l.14) but the actual sum does not make a difference to the Court’s deliberations.
Having regard to the parties incomes and to the wife’s special contributions of $39,000.00, and her non payment of mortgage instalments, the Court finds that the financial contributions by the husband have been higher than by the wife. The husband’s income has been double that of the wife. The Court assesses the financial contributions as 60% by the husband and 40% by the wife.
The Court finds that the wife was the primary carer of the children, until the two older children went to live with the husband after separation. She was also the primary homemaker. The Court adds a loading of 10% to the wife for these factors. Both parties are to have the care of the twins for half the time, and the husband is to have the older children with him for the vast majority of the time. The Court makes an adjustment to the husband of 10% for these factors. The result is 60% in favour of the husband.
The total pool, including superannuation is $275,649.00. 60% of that is $165.389.00.
The house at Property H
Both parties wish to retain the house at Property H. The wife says that she is able to obtain a loan to payout the husband. However as his 60% of the house is (420 x 60%) = $252,000.00, and the mortgage is currently $207,000.00, she would have to obtain a loan in excess of the current equity in the home. Given her income, that appears unlikely.
The wife’s share of the house is (420 x 40%) = $168,000.00; the mortgage is $207,000.00; and equity is $213,000.00. The husband would therefore seem to have the capacity to borrow within the equity in the home, in order to payout the wife. [He has preliminary approval to refinance the mortgage and borrow $150,000.00 (T 6/9/2010 p.17, l.36)]. The $207,000.00 owing on the mortgage, plus a payment to the wife of $82,025.00, total $289,025.00 which is within the $360,000.00 tentatively approved by the Bank (T 6/9/2010 p.18, l.25 and 7/9/2010 p.110, l.9).
As the twins are to live with the husband half of the time, the husband paying out the wife will enable the twins to live with their brothers and father half of the time, in the house in which they have lived for most of their lives. It will also return the older children to the family home. This result is in the best interests of all of the children (s.75(2)(o).
Section 79
Section 79(4):
(a)The financial contributions by the parties have been considered above.
(b)Other contributions have been considered above.
(c)Contributions to the welfare of the family and as homemaker or parent have been considered above. The Court adds that at present, both parties are contributing by each caring for two of their children
(d)The Court does not find that the orders proposed by either party will have any effect on the earning capacity of either parent to the marriage
(e)Section 75(2) factors:
2(a)The wife is 37 years old and in difficult health. She suffers from depression and anxiety, but there is no evidence that she is unable to work. The husband is
39 years old and in good health. He is in long term
full time employment.
2(b) The wife has been earning $535.00 per week and the husband between $800.00 and $1,100.00 per week depending on overtime. They are both able to continue in employment. The husband is to receive an inheritance agreed at $17,250.000 that could be contributed towards a cash payment to the wife, or otherwise used to finance a loan.
2(c) The twins are to spend equal time with each parent and the older children are to live with the husband.
2(d) The husband will have a commitment to provide accommodation for his four children; the wife will need to provide accommodation for the twins. The husband pays child support for a child from a previous relationship (Affidavit of Mr Smirnov sworn
16 October 2009).
2(e) Apart from her children the wife is not responsible to support any other person.
2(f)The husband pays the wife child support of $113.00 per week (Wife’s Financial Statement filed
3 September 2010). The wife receives a Family Tax Benefit of $160.00 per week (Ibid).
2(g)The husband making a payment to the wife to retain Property H will enable him to have a reasonable standard of living in the circumstances. The payment to wife, together with her income, will enable her to have a standard of living that is reasonable in the circumstances.
2(h)Not relevant
2(ha)Not relevant
2(j)The wife’s claim for spousal maintenance was not pressed during the hearings (Affidavit of Ms Smirnov affirmed 19 November 2009 at [55]).
2(k)The marriage had a duration of 16 years, but there is no issue of maintenance.
2(l)Both parties wish to maintain their role as a parent. It is in the best interests of the older children that they continue living with the husband, and it is in the best interests of the twins that they spend equal time with the wife and with the husband and their older brothers. The husband needs to be able to provide accommodation for him and his four children. He will be able to do that best if he retains Property H. The wife’s interests are protected by providing for a cash payment to her, and on indemnity against the mortgage, and a superannuation split.
2(m)Not relevant
2(n)The orders proposed under s.79 are that:
· The husband retain Property H.
· The wife receive 40% of the pool.
· The wife receive a cash payment.
· The husband’s superannuation be split.
2(naa) Not relevant
2(na)The husband pays the wife child support of $113.00 per week.
2(o)The husband retaining Property H will enable the children to live as a family together for much of the time, in the home they have lived in for most of their lives.
2(p) Not relevant
2(q) Not relevant.
Section 79(4) (f) – The Court is making parenting orders including that the older children live with the husband and the twins spend equal time with him
Section 79(4)(g) – this has been taken into account under s.75(2)(na) above.
The Court considers that the order it intends making under s.79 are just and equitable [s.79(2)].
The wife is to get 40% of the pool of $275,649.00 including superannuation. 40% is $110,259.000. She has her superannuation of $14,791.00.
If the husband’s superannuation is to be split 40% to wife ($33,608.00 x 40% = $13,443.00). The husband therefore has to make a cash payment to the wife as follows:
40% of pool $110,259.00
Less
Wife’s superannuation $14,791.00
40% of husband’s superannuation $13,443.00 $28,234.00
_________
Cash payment to the wife $82,025.00
Mr Crozier-Durham had advised the Court that the husband’s superannuation funds has been accorded procedural fairness
(T 17/11/2010 p.133, l.38).
Property orders
The Court orders that the pool be divided 60/40% in favour of the husband.
The wife is to transfer the property at Property H (the “Property H property”) to the husband at his expense contemporaneously with the payment by him to her of $82,025.00 which is to occur on or before
15 January 2011.
a)The Courts orders pursuant to s.106A of the Act that should the wife fail to execute the documents necessary to transfer the Property H property to the husband, the Registrar of the Federal Magistrates Court of Australia is appointed to execute those documents.
The husband is to indemnify, and keep indemnified, the wife against all liability under the mortgage on the Property H property and arrange for the mortgage to be refinanced in his sole name.
Whenever an entitlement becomes due under the husband superannuation, 40% is to be paid to the wife.
The husband is to pay all outstanding and further rates and charges on the Property H property, and keep the wife indemnified against the same.
The parties are to retain the motor vehicles in their possession.
The household furniture and chattels as at separation are to be divided 60/40% in favour of the husband who needs to provide accommodation for five people.
The matters are removed from the list of pending applications.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Turner FM
Date: 8 December 2010
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