Stinson and Goldsmith and Anor
[2019] FCCA 917
•12 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STINSON & GOLDSMITH & ANOR | [2019] FCCA 917 |
| Catchwords: FAMILY LAW – Parenting – the Husband seeks the parties’ two children live in an equal shared care arrangement on a week about basis – the Wife seeks the parties’ children live with her and spend four nights per fortnight with the Husband – both parties seek equal shared parental responsibility and a sharing of school holidays and special occasions – where the parties have continued to remain separated under the one roof and physical separation will occur once judgment has been handed down. FAMILY LAW – Property – large asset pool consisting of several properties including a number of adjoined farming properties – the Husband has received a substantial post-separation inheritance from the Estate of his late father – the Husband argues that there should be a 15% adjustment in his favour for contributions on the basis inter alia of his inheritance and the construction work conducted on the former matrimonial home by his business – the Wife argues there should be a 5% adjustment in her favour for contributions on the basis of the pre-cohabitation assets she brought into the relationship as well as her role as primary homemaker – the Wife seeks a 10% adjustment in her favour for section 75(2) factors on the basis of her ongoing role as primary carer for the children should she obtain the orders sought by her with respect to parenting matters – both parties seek to retain the former matrimonial home. HELD – the parties have equal shared parental responsibility for the children – the children to reside with the Wife and spend time with the Husband initially for four nights per fortnight in a block period with such time to increase to five nights per fortnight after 12 months – orders made for the sharing of holidays and special occasions – there be a distribution of the parties’ asset pool such that the Husband receive 57.5% of same and the Wife receive 42.5% of same on the basis of a 10% adjustment in the Husband’s favour in relation to contributions and a 2.5% adjustment in the Wife’s favour for section 75(2) factors – the Husband to retain the former matrimonial home and all adjoining farming properties. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Cases cited: Hickey and Hickey and Attorney General for the Commonwealth of Australia [2003] FamCA 395 Dickons & Dickons [2012] FamCAFC 154 Stanford v Stanford [2012] HCA 52 Bevan and Bevan [2013] FamCAFC 116 |
| Applicant: | MR STINSON |
| First Respondent: | MS GOLDSMITH |
| Second Respondent: | MS BOWEN AND MS MORRISON |
| File Number: | BRC 397 of 2018 |
| Judgment of: | Judge Bender |
| Hearing date: | 27 August 2018 |
| Date of Last Submission: | 21 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 12 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jordan |
| Solicitors for the Applicant: | Phillips Family Law |
| Counsel for the First Respondent: | Mr Linklater-Steele |
| Solicitors for the First Respondent: | Hopgood Ganim Lawyers |
Counsel for the Second Respondent: | Not Applicable |
| Solicitors for the Second Respondent: | Hopgood Ganim Lawyers |
ORDERS
Parenting
All previous parenting orders be discharged.
The parents have equal shared parental responsibility for the children [X] born … 2007 (“[X]”) and [Y] born … 2010 (“[Y]”).
[X] and [Y] live with the Wife.
[X] and [Y] spend time with the Husband:
(a)during school term:
(i)commencing the first Thursday after the Wife vacates the former matrimonial home, from after school (or 3:30pm) Thursday until before school (or 9:00am) Monday and each alternate week thereafter for a period of 12 months; and thereafter
(ii)from after school (or 3:30pm) Wednesday until before school (or 9:00am) Monday and each alternate week thereafter;
(b)for half of each term school holiday period as agreed between the parents and failing agreement from 5:00pm on the second Saturday of the term school holidays until 5:00pm on the third Sunday of the term school holidays; and
(c)for half of the long summer vacation period in an extended block of time as agreed between the parents and failing agreement:
(i)for the first half in the 2019/2020 long summer vacation period and for each alternate year thereafter; and
(ii)for the second half in the 2020/2021 long summer vacation period and for each alternate year thereafter;
[X] and [Y] spend time with their parents at special occasions as follows:
(a)at Christmas:
(i)in odd numbered years with the Wife from 10:00am on Christmas Eve until 10:00am on Christmas Day and with the Husband from 10:00am on Christmas Day;
(ii)in even numbered years with the Husband from 10:00am on Christmas Eve until 10:00am on Christmas Day and with the Wife from 10:00am on Christmas Day; and
(b)at Easter:
(i)with the Husband from 3:00pm on Maundy Thursday until 5:00pm Easter Monday in 2019 and each alternate year thereafter; and
(ii)with the Wife from 3:00pm on Maundy Thursday until 5:00pm Easter Monday in 2020 and each alternate year thereafter;
(c)on Mother’s Day and Father’s Day with the relevant parent (in the event [X] and [Y] are not otherwise in the care of the relevant parent that day) from after school (or 3:30pm) on the preceding Friday until 5:00pm on Mother’s Day/Father’s Day;
(d)on each of the parents’ birthdays with the relevant parent (in the event [X] and [Y] are not otherwise in the care of the relevant parent that day):
(i)if the birthday falls on a school day from after school (or 3:30pm) until 7:00pm; and
(ii)if the birthday falls on a non-school day from 1:00pm until 7:00pm; and
(e)on each of [X] and [Y]’s birthdays, with the parent with whom they are not otherwise in the care of pursuant to these orders:
(i)if the birthday falls on a school day from after school (or 3:30pm) until 7:00pm; and
(ii)if the birthday falls on a non-school day from 1:00pm until 7:00pm.
Changeover that does not take place at school take place at the service desk of the Woolworths Town A, or such other public place as agreed to between the parents in writing.
[X] and [Y] be at liberty to communicate with their parents at all times as reasonably requested by them but otherwise between 5:30pm and 6:30pm on Saturday, Monday and Wednesday each week.
The parents communicate with each other in writing via email or text message about matters concerning the care of [X] and [Y] except in the event of an emergency.
Each parent authorises by this order, the school and any educational and extracurricular facility attended by [X] and [Y] to provide to the parties information about the children’s educational or extracurricular progress and other related activities and supply them with copies of notices, newsletters, reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).
Each of the Husband and the Wife:
(a)attend and complete, as soon as practicable, a parenting orders program ("the POP program");
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the POP program;
(c)pay and otherwise be responsible for all costs associated with the POP program; and
(d)provide an appropriate certificate of completion of the program to the other parent or their solicitors.
Each parent:
(a)keep the other parent informed at all times of their residential address, landline contact telephone number (if any), mobile telephone number and email address;
(b)keep the other parent informed at all times of the names and addresses of any treating medical or other health practitioner who treats [X] and/or [Y] and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children; and
(c)inform the other parent, as soon as reasonably practicable, of any medical condition, significant health issue or illness suffered by [X] or [Y].
Each parent, their servants and agents be restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and the other party’s family; and
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of [X] and/or [Y] and from permitting any other person to do so; and
(c)saying unpleasant or unkind things of or about the other or the other’s family in the presence of or hearing of [X] and/or [Y] and will not permit any other person to do so.
During the time [X] and [Y] are with either parent, that parent will:
(a)respect the privacy of the other parent and not question [X] and [Y] about the personal life of the other parent; and
(b)speak of the other parent respectfully.
The parents do all necessary acts and sign all necessary documents so as to cause:
(a)an updated passport to issue for each of [X] and [Y] at any time that a current passport expires or is due to expire; and
(b)passports to remain in the possession of the Wife (save for periods when the children are travelling overseas with the Husband).
Both parties be permitted to travel overseas with [X] and/or [Y] and for the purpose of overseas travel, the parent seeking for the children to travel overseas shall provide to the other parent, no later than 28 days prior to the date of intended travel:
(a)copies of or confirmation of return airline tickets for the travelling child/ren;
(b)a detailed itinerary of where the travelling child/children will stay and travel to for the duration of their time in that parent’s care; and
(c)contact details for the travelling child/ren while they are away.
The Wife shall retain the passports for [X] and [Y] and upon being provided with 28 days’ notice from the Husband in accordance with these orders, the Wife shall immediately release the passports to the Husband.
The Husband is to return the passports to the Wife within seven days of the Husband returning from overseas travel with the [X] and [Y].
Property
Property B and Property C
By 4:00pm on 12 May 2019 the Wife advise the Husband in writing whether she wishes the Husband to transfer to her all his right title and interest in the properties known as and situate at Property B in the State of NSW (“Property B”) and Property C in the State of NSW (“Property C”) or whether she seeks that Property B and Property C be sold.
If pursuant to order (19) herein the Wife advises the Husband in writing that she seeks a transfer to her of Property B and Property C then:
(a)within 90 days of receipt of the written notice the Husband shall do all things necessary to transfer to the Wife all his right, title and interest in Property B and Property C (“the transfers”); and
(b)contemporaneously with the transfers the Wife do all things necessary to either discharge or refinance into her own name the mortgages on Property B and Property C.
If pursuant to order (19) herein the Wife advises the Husband in writing that she wishes Property B and Property C to be sold and/or if she is unable to discharge or refinance the mortgages on Property B and Property C pursuant to order (20)(b) herein, the Husband shall do all things necessary to cause Property B and Property C to be sold (“the sale”) and upon settlement of the sale of the properties the proceeds of sale shall be distributed as follows:
(a)firstly to pay all costs, commissions and expenses of the sale;
(b)secondly to discharge the mortgages on Property B and Property C; and
(c)the balance to be paid to the Wife.
Pending the transfer or the sale of Property B and Property C:
(a)the Husband have the sole right to use and occupy Property B and Property C;
(b)the Husband is solely responsible for all mortgage repayments, rates and other outgoings of Property B and Property C as they fall due;
(c)the parties hold their respective interests in Property B and Property C upon trust pursuant to these orders;
(d)each party is prohibited by injunction from further encumbering Property B and Property C without the consent in writing of the other party; and
(e)each party is prohibited from increasing the balance of the mortgage without the other party’s consent, save for the accrual of ordinary interest and ordinary bank charges.
‘Property D’
By 4:00pm on 11 July 2019 the Wife shall vacate the former matrimonial home situate on the property known as ‘Property D’ and thereafter the Husband shall have sole use and occupation of the former matrimonial home.
The Partnership
Farm stock, plant and equipment
By 4:00pm on 11 July 2019 the Husband and the Wife transfer and assign to the Husband all of their right title and interest in:
(a)the partnership plant and equipment;
(b)the partnership cattle; and
the Husband indemnify the Wife in relation to any liabilities arising therefrom.
By 4:00pm on 11 July 2019 (“the Property E settlement date”):
(a)the parties transfer to the Husband all of the Partnership’s right, title and interest in the property known as ‘Property E’ situated at and more particularly described at Lots … in DP … (“Property E”):
(b)the Husband obtain at his sole expense a complete discharge and release of the joint Rabobank loan, and a discharge and release of the mortgage registration number … in favour of Rabobank Australia Limited (“the release”), and provide that release to the Wife or her solicitor, and that the Wife sign within seven days of such request being made, an authority and any other document required by the mortgage to facilitate the administrative process of release of the mortgage;
(c)pending the Property E transfer and the Property E discharge the Husband shall pay all mortgage payments and outgoings in respect to Property E and indemnify and keep indemnified the Wife from all liabilities arising howsoever therein.
Partnership bank accounts
By 4:00pm on 12 May 2019 the Husband and the Wife:
(a)transfer and assign to the Wife the Partnership ANZ Term Deposit account ending …;
(b)transfer and assign to the Husband the Partnership ANZ account ending …;
(c)transfer and assign to the Husband the Partnership ANZ account ending …; and
(d)in the event it is not possible to transfer and assign the benefit of the said bank accounts then the Husband and the Wife do all acts and sign all documents to close the said accounts and thereafter pay the funds from the said accounts to the party entitled to those funds under orders (26)(a)-(c) of these orders.
Dissolution of Partnership
Upon all of the transactions under these orders in respect of the Partnership property being perfected, the Partnership be dissolved and the Husband and the Wife do all acts and sign all documents necessary to dissolve the Partnership.
All loan accounts of the parties (whether solely or jointly with others) in the books of account of the Partnership are to be disregarded and not enforced as between the Husband and the Wife and each will indemnify and keep indemnified the other in respect of any claims made against the other party in respect of the loan amounts.
50% of proceeds of sale of Property F
By 4:00pm on 26 April 2019 the Husband authorise his solicitors Phillips Family Law to pay the 50% of the net proceeds of sale of Property F currently held on trust in an interest bearing account on behalf of the Husband pursuant to order (6) of the orders made 13 March 2018 to be paid to the Wife.
Proceeds of sale of Business G
By 4:00pm on 26 April 2019 the Husband authorise his solicitors Phillips Family Law to pay the net proceeds of sale of Business G currently held on trust in an interest bearing account pursuant to order (4) of the orders made 13 March 2018 to be paid to the Wife.
Joint bank account
By 4:00pm on 12 May 2019 the Husband and the Wife:
(a)transfer and assign to the Wife the joint ANZ bank account ending … and the Husband relinquish all right, title claim and interest to and in same; and
(b)in the event it is not possible to transfer and assign the benefit of the joint bank account then the Husband and the Wife do all acts and sign all documents to close the said account and thereafter pay the funds from the said account to the Wife.
Retention of property by the Husband and liabilities of the Husband
The Husband retain:
(a)the bad debtors owing to Business G Pty Ltd;
(b)564 Shares H held in the Husband’s name;
(c)his motor vehicles;
(d)bank accounts held in the Husband’s name;
(e)Business G ANZ Business Advantage account …;
(f)partial property settlement received pursuant to order (1)(a) of the orders made 13 March 2018; and
(g)all other property and liabilities in his name and possession not otherwise dealt with under these orders.
The Husband be solely responsible for and indemnify the Wife in respect of the following liabilities:
(a)the Husband’s credit cards;
(b)liabilities of Business G including but not limited to:
(i)any taxation liability payable in respect of the sale of the business G including for the financial year ending 30 June 2018;
(ii)any taxation liability in respect of income received from remaining debtors of Business G;
(c)all actions, claims, demands and liability as a result of the Husband’s conduct and/or directions of the Husband made in respect of ‘Property E’; and
(d)all other liabilities in the name of the Husband not otherwise dealt with in these orders.
Retention of property by the Wife and liabilities of the Wife
The Wife retain:
(a)the property situated at Property J in the state of New South Wales, and more particularly described as Lot … in Strata Plan …, Parish of … Title reference Folio … (“the Property J property”);
(b)the businesses ‘Business K’ and ‘Business S’;
(c)her Motor Vehicle L;
(d)134,744 Shares M in the Wife’s name;
(e)13,000 Shares N shares in the Wife’s name;
(f)all bank accounts held in the Wife’s name;
(g)partial property settlement received by the Wife pursuant to order (1)(b) of the orders made 13 March 2018;
(h)her jewellery; and
(i)all other property in her name and possession and not otherwise dealt with under these orders.
The Wife be solely liable for and indemnify the Husband in respect of the following liabilities:
(a)Bank account no. …;
(b)Mortgage Loan account no. …;
(c)the Wife’s credit cards;
(d)the debt owing to the maternal grandmother; and
(e)all other liabilities in the name of the Wife not otherwise dealt with in these orders.
The Husband’s inheritance
The Husband be solely entitled, to the exclusion of the Wife, to any interest he may have in or may inherit from the estate of the late Mr O, including but not limited to his interest in:
(a)all of the rural property known as ‘Property P’ situated at Property P in the state of New South Wales, and more particularly described as Lots … in DP … (“Property P”);
(b)all of the rural property known as ‘Property P’ situated at in the state of New South Wales, and more particularly described as Lot … in DP … AND Lot … in DP … (“Property P”);
(c)all of the rural property known as ‘Property Q’ in the state of New South Wales, and more particularly described as Lots … and … in DP … (“Property Q”); and
(d)the Husband’s share of the residue of the estate.
Cash settlement
By 4:00pm on 11 July 2019 (“the date”) the Husband is to pay the Wife the sum of $214,291.28 (“the payment”).
Default in payment of cash settlement
In the event the Husband fails to make the payment by the date (“the default”), the Husband is to nominate which of the properties known as Property E, Property P and Property Q (“the nominated property”) he will sell in order to raise the funds to make the payment and advise the Wife of his nomination in writing within 14 days of the default and upon nomination, the Husband shall forthwith do all things necessary to place the nominated property upon the market for sale (“the default sale”).
Upon settlement of the default sale, the proceeds of sale shall be distributed as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly to discharge any mortgage or other encumbrance affecting the nominated property;
(c)thirdly, so much of the default payment as is then outstanding together with interest thereon at the rate prescribed under rule 22.01 of the Federal Circuit Court Rules 2001 adjusted monthly from the date, to the Wife; and
(d)fourthly, the balance to the Husband.
Furniture and contents
Save for the furniture and contents of [X] and [Y]’s bedrooms which are to be retained by the Wife, the furniture and contents of the former matrimonial home are to be divided equally between the parties as agreed between them and failing agreement the Wife is to provide to the Husband two lists, with each list containing half of the parties’ furniture and contents with the Husband to then select one of the said lists and the Wife to then retain all of the furniture and effects on the other list.
Stinson Goldsmith Self-managed Superannuation Fund
The Husband to transfer 100% of benefits in the Stinson Goldsmith Superannuation Fund to the Wife (“Splitting Order 1”)
In accordance with paragraph 90XT(1)(b) of the Family Law Act 1975 (Cth):
(a)the Wife is entitled to be paid the specified percentage out of the Husband’s interest in the Stinson Goldsmith Superannuation Fund;
(b)the Husband’s entitlement (or the entitlement of such other person to whom a payment may be made out of the husband’s interest) in the Stinson Goldsmith Superannuation Fund, is correspondingly reduced by force of this order; and
(c)the percentage specified for the purposes of this order is 100%.
The Trustee of the Fund do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Husband in the immediately preceding clause of this order; and
(b)pay the entitlement whenever the trustee makes a splittable payment from the Husband’s interest in the Stinson Goldsmith Superannuation Fund.
Splitting Order 1 operates from Operative Time 1, the operation of which is ordered in Order 50.
The Court notes:
(a)the value of the Wife’s interest is calculated in accordance with the SIS Regulations; and
(b)any payments from the Husband’s superannuation interest in the Stinson Goldsmith Superannuation Fund made after the trustee has created a new interest in the Applicant Husband’s name in the Stinson Goldsmith Superannuation Fund are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
Wife to transfer 50% of benefits in the Stinson Goldsmith Superannuation Fund to the Husband (“Splitting Order 2”)
In accordance with paragraph 90XT(1)(b) of the Family Law Act 1975 (Cth):
(a)the Husband is entitled to be paid the specified percentage out of the Wife’s interest in the Stinson Goldsmith Superannuation Fund;
(b)the Wife’s entitlement (or the entitlement of such other person to whom a payment may be made out of the Wife’s interest) in the Stinson Goldsmith Superannuation Fund, is correspondingly reduced by force of this Order; and
(c)the percentage specified for the purposes of this Order is 50%.
The Trustee of the Fund shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) the entitlement awarded to the Husband in the immediately preceding clause of this Order; and
(b)pay the entitlement whenever the Trustee of the Fund makes a splittable payment from the Wife’s interest in the Stinson Goldsmith Superannuation Fund.
Splitting Order 2 operates from Operative Time 2, the operation of which is ordered in Order 50.
The Court notes:
(a)the value of the Husband’s interest is calculated in accordance with the SIS Regulations; and
(b)any payments from the Wife’s superannuation interest in the Stinson Goldsmith Superannuation Fund made after the trustee has created a new interest in the Husband’s name in the Stinson Goldsmith Superannuation Fund are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
Operative Time of the Order
The operative times for Splitting Order 1 and Splitting Order 2 operate as follows:
(a)firstly, Operative Time 1 operates from the beginning of the fourth day after the date these Orders are made; and
(b)secondly, Operative Time 2 operates immediately following the operation of Operative Time 1.
Service of this order on the Trustees shall be deemed to have occurred on the fourth day after the date these orders are made by reason that the parties are Trustees and the Court notes that service will enliven the operating standards of Part 7A of the Superannuation Industry (Supervision) Regulations 1994.
Transfer of Underlying Interests
After service by the Trustees, of the payment split notices pursuant to r.7A.03 of the SIS Regulations in accordance with the operating standards under the Superannuation Industry (Supervision) Regulations 1994, the Wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising her request pursuant to r.7A.06 of the SIS Regulations (“the Husband’s r.7A.05 request”) for the transfer or rollover of the transferable benefit to another complying superannuation fund (“the Wife’s new fund”).
Forthwith upon the making of these orders the Trustees shall convene a meeting by exchange of minutes within 14 days after receipt of both the Wife’s r.7A.06 request and the Husband’s r.7A.05 request and in that meeting do all such acts and things, and sign all such documents as may be necessary to:
(a)authorise the creation of the new interest in the name of the wife pursuant to r.7A.11of the Superannuation Industry (Supervision) Regulations 1994;
(b)liquidate sufficient of the assets of the fund to enable the transfer of the transferable benefits pursuant to r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994 to the trustee of the husband’s new Superannuation Fund by payment of liquid funds as opposed to an in-specie transfer of assets;
(c)transfer the transferable benefits pursuant to r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994 to the trustee of the Wife’s new Superannuation Fund.
Contemporaneously with the transfer of the wife’s interest in the Stinson Goldsmith Superannuation Fund to the Wife’s new Superannuation Fund the Wife shall do and sign all documents necessary to:
(a)appoint a corporate trustee for the Stinson Goldsmith Superannuation Fund or facilitate the appointment of another trustee as nominated by the Husband;
(b)resign as a trustee of the Stinson Goldsmith Superannuation Fund; and
(c)do all such things as may be necessary to remove herself as a signatory on any bank accounts, related holdings and other investments held in her name (whether solely or jointly) on behalf of the Stinson Goldsmith Superannuation Fund.
Pending the transfer and rollout of the transferrable benefits from the Wife’s member benefit in accordance with these Orders:
(a)save as expressly provided for in these Orders, each of the Husband and the Wife is restrained by injunction from drawing upon their member benefits in the Stinson Goldsmith Superannuation Fund in any manner, including but not limited to drawing funds from their member benefits under the Transition to Retirement rules;
(b)each of the Husband and the Wife in their capacities as Trustees of the Fund is restrained by injunction from dealing with, charging, encumbering or disposing of any of the assets of the Stinson Goldsmith Superannuation Fund, other than to give effect to the terms of these orders or undertaken in the ordinary course of the management of the Stinson Goldsmith Superannuation Fund;
(c)each of the Husband and the Wife must immediately revoke any binding death benefit nomination already made and each party be and is hereby is restrained by injunction from:
(i)making any binding death benefit nomination in favour of a child described in regulation 13 of the Regulations;
(ii)making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and
(iii)doing any such act or thing which would defeat, extinguish or reduce the entitlement of either of the Husband and the Wife under this order.
IT IS NOTED that publication of this judgment under the pseudonym Stinson & Goldsmith & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
BRC 397 of 2018
| MR STINSON |
Applicant
And
| MS GOLDSMITH |
First Respondent
| MS BOWEN AND MS MORRISON |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The parties in this matter are seeking both parenting and property orders following the breakdown of their marriage.
Whilst the parties’ initial evidence was heard between 27 and 29 August 2018, prior to judgment being handed down an application to adduce fresh evidence was filed when the Husband’s father died. As it was known the Husband would receive a considerable inheritance from his late father’s estate, including a property on which the parties had built the former matrimonial home, this application was granted. Further submissions were made on 21 February 2019 after probate had been granted in the estate of the Husband’s late father. Further delay in the writing and delivery of this judgment has been caused by the Wife’s legal team only providing the requested minute of the orders sought by the Wife on 26 March 2019.
The Husband is seeking parenting orders that would provide for the parties to have equal shared parental responsibility for their two children [X] born … 2007 (“[X]”) and [Y] born … 2010 (“[Y]”), for them to reside week about with each of their parents during the school terms and for there to be an equal sharing of school holidays and special occasions.
The Husband seeks property orders such that he retains 65% of the parties’ realisable assets, with the assets to be retained by him to include the former matrimonial home located on the parcel of land known as ‘Property D’ and all the surrounding farm land including the jointly owned block known as ‘Property E’ and the further parcels of land recently inherited by him from his late father’s estate. He seeks that there be a splitting order such that the parties’ self-managed superannuation fund is divided equally between them.
The Wife is seeking parenting orders be made for the parties to have equal shared parental responsibility for [X] and [Y], for [X] and [Y] to live with her and spend time with the Father during the school term in week one from after school Tuesday to before school Wednesday and in week two from after school Thursday to 5.00pm Sunday, for half the term holidays, week about in the long summer vacation and for a sharing of special occasions.
Whilst initially seeking orders she receive 80% of the parties’ property pool, the Wife in the proposed minutes received 26 March 2019 is now seeking she receive 65% of the parties’ realisable assets.
The Wife puts forward two options for the 65% of the assets she seeks to retain. Option A would see the Wife retain the property in Property J owned by her prior to cohabitation, Lots … and … of ‘Property D’ on which the former matrimonial home is located, the parcel of land known as ‘Property E’, a boundary adjustment to the parcel of land known as ‘Property P’ to give her access to the former matrimonial home, half the cattle owned by the parties’ partnership, the majority of monies currently held on trust on behalf of the parties and a payment by the Husband to her of $348,812.57.
Option B would see the Wife retain the assets listed in paragraph [7] above save she receive the property known as ‘Property P’ rather than ‘Property E’ and the Husband make a payment to her of $186,617.81 rather than $348,812.57.
The Wife too seeks orders for there to be a splitting order which would see an equalisation of the parties’ entitlements in their self-managed superannuation fund.
Background
The Husband was born on … 1957 and is aged 61 years. He is a professional who, until its sale in March 2018, ran his own business called ‘Business G’. He is now fully engaged in running cattle on the parties’ properties.
The Husband was previously married and has three adult children.
The Wife was born on … 1966 and is aged 52 years. The Wife is a professional with an extensive history working in the … sector. Currently she is engaged in home duties.
The parties commenced cohabitation on … 2004 when the Wife moved from Sydney to Town A to live with the Husband in a property then owned by him at Property R.
The parties married on … 2005.
Between 2004 and when [Y] was born in 2010, the Wife was employed as a professional either on a contract basis or in permanent roles..
After [Y]’s birth, the Wife was primarily engaged in home duties. In 2015 she established a consultancy business ‘Business K’ and in 2017 she established a business ‘Business S’.
The Husband was employed on a full time basis in his business, Business G, throughout the marriage. The Husband also ran the parties’ farming enterprises and was primarily responsible for the maintenance and upkeep of the properties including clearing the block known as ‘Property E’ purchased by the parties during the marriage, building and mending fences, putting in dams, building stock pens and tending to the cattle. Business G provided fencing, material for the sheds and assistance with dam building without cost to the parties.
The parties separated under the one roof on 23 October 2017 when the Husband gave the Wife a letter from his solicitors advising of his decision to end the marriage and setting out his proposals for parenting and financial matters.
Both parties refused to leave the former matrimonial home and they remain separated under the one roof.
The Husband filed an Initiating Application seeking property and parenting orders on 16 November 2018.
The Wife filed a Response on 27 February 2018 in which she sought orders inter alia that the paternal grandfather Mr O (“the paternal grandfather”) and his attorneys, Ms Bowen and Ms Morrison (“the attorneys”) be joined to the proceedings and that there be a declaration that the property known as ‘Property D’ is held on trust for the Husband and the Wife by the paternal grandfather and/or the attorneys.
On 13 March 2018 detailed interim parenting and property orders were made by consent. Inter alia, the interim property orders provided for:
·each of the parties to receive $100,000 from their joint ANZ account ending … and for the balance of that account to be held on trust for the parties in an interest bearing account;
·the preservation of the proceeds of sale of Business G and Property F;
·the ongoing conduct, management and preservation of the plant and equipment of the Mr Stinson and Ms Goldsmith Partnership;
·the ANZ Account ending … to be utilised to pay partnership expenses, the minimum weekly payment on the Rabo Bank loan, payment of the Bank Account ending … and the Mortgage Loan Account ending … and the sum of $500 to the Husband and $250 to the Wife on a weekly basis.
The interim parenting orders provided for the parties to have equal shared parental responsibility for [X] and [Y] and for them to spend specific holiday time with each parent.
The Wife caused a subpoena to issue to the paternal grandfather’s solicitors seeking a copy of the paternal grandfather’s will. This subpoena was objected to on the instructions of the paternal grandfather’s powers of attorney. On 24 April 2018, Judge Jarrett dismissed the subpoena objection and ordered that the inspection of the will be limited to the solicitors of the parties only and that those solicitors not communicate the contents of the will to any other person save and except that where the content of the will affects their client they could reveal the relevant content of the will to their client.
On 24 May 2018 the Wife issued an Application in a Case seeking sole use and occupation of the former matrimonial home. On 25 May 2018 this application was adjourned to 5 June 2018. Judge Jarrett also ordered the parties to attend family therapy.
On 5 June 2018 Judge Jarrett made orders for the Second Respondents, being Ms Bowen and Ms Morrison as powers of attorney for Mr O to file and serve a Response and supporting affidavit. His Honour otherwise adjourned the Wife’s application for sole use and occupation to 12 July 2018.
On 29 June 2018 the Second Respondents filed a Submitting Notice which reads:
“The Second Respondent submits to any order the Court may make in the proceeding.
The Second Respondent wants to be heard on the question of costs.”
Prior to the 12 July 2018 hearing the parties agreed the Wife’s application for sole use and occupation would be adjourned on the basis the Court would make a ruling on this issue at the conclusion of evidence at the final hearing. No orders were made on 12 July 2018.
At the conclusion of the evidence on 29 August 2018, neither party sought the Court determine the Wife’s application for sole use and occupation of the former matrimonial home.
Because of the ill health of Counsel for the Applicant it was agreed at the conclusion of the evidence that rather than oral submissions, written closing submissions would be provided to the Court by 7 September 2018. The Wife’s written submissions were not received until 25 September 2019.
Prior to the Court delivering judgment, the paternal grandfather died. The Wife filed an Application in a Case seeking that the hearing of the matter be re-opened to enable evidence to be adduced relating to the paternal grandfather’s death and the Husband’s resultant changed financial circumstances.
On 4 December 2018 a telephone mention was conducted. The solicitors representing the estate of the paternal grandfather advised the Court probate would most likely be granted in late January 2019. Orders were therefore made on 4 December 2018 granting leave for further evidence to be adduced in relation to the death of the paternal grandfather and directing the Second Respondents to file an affidavit annexing the inventory contained in the affidavit of the executors of the estate of the paternal grandfather filed by them as part of the application for the grant of probate. Such affidavit was filed on 11 January 2019.
On 21 February 2019 the matter was listed for further and final submissions as to financial matters as probate on the paternal grandfather’s estate had been granted. The solicitor for the estate of the paternal grandfather advised the Court of the details of the Husband’s inheritance.
As best as can be gleaned from the parties’ trial affidavits and vive voce evidence, their financial history is as follows:
1980
The Husband establishes his business ‘Business G’ on land owned by him at Property F (“Property F”)
… 1994
The Wife purchases Property J (“the Property J property”) for $185,000 using savings and borrowings from Building Society. It is the Wife’s evidence that at the commencement of cohabitation the Property J property was valued at $600,000 and the mortgage was $185,000
1999/2000
The Wife purchases Property T (“the Property T property”) for $254,000 funded by a deposit sourced from equity in the Property J property and a loan from Building Society. At the commencement of co-habitation it is the Wife’s evidence the Property T property was worth $650,000 and the mortgage was $250,000
2000
Commencing 1950 the Husband’s father commences purchasing farming land at Town U being the parcels of land known as ‘Property Q’. In 2000 the Husband’s father purchases the parcels of land known as ‘Property P’ and ‘Property D’
2002
The Husband receives the properties at Property B (“Property B”) and Property C (“Property C”) as part of the property settlement following the breakdown of his first marriage. Both properties were subject to mortgages. The Husband has not deposed to the value of these properties and their level of indebtedness at the commencement of co-habitation. The Wife deposes to Property B being purchased for $52,500 on … 1996 and Property C being purchased for $90,000 on … 1998. The Wife estimates the Husband’s equity in Property B and Property C as being $145,000 at the commencement of co-habitation
2003
The Husband purchases Property R for $149,950 (“Property R Street”). The Husband deposes he obtained a collateral mortgage to purchase Property R and that at the time of purchase this mortgage was $294,000 and was secured over Property B, Property C and Property R
2003
The Wife renovates the Property T property for a cost between $150,000-$180,000 funded by her Equity Loan account
2004
The Wife leaves her position at Employer in Sydney and received a termination payment of $84,104.51 (net) which was paid into her Equity Loan account
21 May 2007
The Husband sells Property R for $248,000. The net proceeds of sale of $221,428.99 are paid into the Husband’s ANZ Equity Manager account
August 2007
The Wife receives a termination payment from Employer of $67,578 (net) which is applied to joint expenses
2007/2008
The parties build the former matrimonial home on ‘Property D’, a property owned by the Husband’s father for $400,000. It is the Husband’s evidence he contributes $130,000 plus a further $100,000 gift from his parents and the Wife the sum of $170,000 towards the costs of construction. The Wife spends a further $30,000 on fittings and furniture. Business G does the steelwork for the home including the frame, roof and a shed, supplies and installs solar power, supplies and installs water tanks and builds dams at no cost to the parties
15 June 2009
The parties establish a self-managed superannuation fund “Stinson and Goldsmith Superannuation Fund” (“the self-managed fund”). The Husband pays $50,000 into the self-managed fund
Late 2009/
Early 2010
The self-managed fund purchases from the Husband 50% of the Husband’s interest in Property F for $270,000 from the monies paid by the self-managed fund. $192,484 is paid into the Wife’s equity loan account and the balance to the Husband’s ANZ Equity Manager account. After the purchase Business G pays the self-managed fund $15,600E rental per annum
Prior to
30 June 2010The Husband rolls his existing superannuation entitlements of $176,125 into the self-managed fund and makes a further employee contribution of $44,528. The Wife rolls her existing superannuation entitlements of $82,914 into the self-managed fund. Thereafter Business G makes annual employer contributions to the self-managed fund on behalf of the Husband of between $6,000 and $8,757.
2010
The parties establish the ‘Stinson and Goldsmith partnership’ (“the Partnership”). The cattle being run by the Husband on ‘Property D’, ‘Property Q’ and ‘Property P’ with an estimated value of $42,500 are transferred to the partnership
Mid 2010
The Partnership purchases industrial sheds at Property F for $520,000 (“Property F”). The Wife contributes $497,200 from her Equity Loan account to fund the purchase and a further $49,708 towards shed upgrades. The Husband contributes $101,707 from his ANZ Equity Manager Account to fund the purchase
January 2011
The Wife sells the Property T property for $830,000. $519,219.61 is placed by the Wife in the Wife’s ING Account, $200,824.79 is deposited into the Wife’s Equity Loan account and $92,955.21 is deposited into the Wife’s Mortgage account
2012
The Partnership purchase a rural block adjoining ‘Property D’, ‘Property E’ for $460,000. The Wife contributes $253,600 towards the purchase price from part of the proceeds of sale of her Property T property and the balance is funded by a loan from Rabo Bank of $225,000
2014
The Wife receives an inheritance of $112,465 from the estate of her paternal grandmother which she applies to reduce the mortgage on the Property J property
4 October 2017
The Partnership sells Property F for $680,000. The net proceeds of sale of approximately $665,000 are received after separation and placed in a term deposit in the Partnership’s name
13 March 2018
Orders are made for each party to receive $100,000 by way of part property settlement from the proceeds of sale of Property F. $430,970 remains in the term deposit account
March 2018
Business G and Property F is sold to employees of the business who pay $150,000 for the business and $500,000 for Property F. After payment of the business overdraft, $100,702 remains of the $150,000 paid for the business. This amount, together with the net proceeds of sale of Property F of $495,174 (a total of $595,875) is currently held by the Husband’s solicitors in an interest bearing account on behalf of the parties. It is agreed that $247,587 of this amount forms part of the parties’ self-managed fund
The Wife obtains a valuation of Business G and its plant and equipment and argues the Husband undersold the business to the purchasers claiming there should be an add-back to the pool. The Husband refutes the business, plant and equipment were undersold. This claim is not pursued by the Wife at the final hearing
The Husband receives as part of the sale of the Business G business, entitlement to three outstanding loans owed to the business being … Company of $33,104.65, … Services $32,485.75 and Mr V of $38,425.26. … Company is repaying the Husband at the rate of $200 per week and … Services at the rate of $300 per week plus providing him with a fuel card. It is the Husband’s evidence he does not expect to recover any monies from Mr V
… 2018
The Husband’s father dies. Under the terms of the Husband’s father’s will he inherits the properties ‘Property Q’, ‘Property D’ and ‘Front Property P’ together with a quarter share of the residue of the estate
Parenting Matters
As noted in paragraphs [3] and [5] of this judgment, the Husband is seeking orders [X] and [Y] live with each of the parties on a week about basis whilst the Wife is seeking orders that [X] and [Y] live with her and spend time with the Husband in Week One from after school Tuesday to before school Wednesday and in Week Two from after school Thursday to 5.00pm Sunday.
Both parties seek orders they have equal shared parental responsibility of [X] and [Y] and they share school holidays and special occasions, albeit the Wife is seeking [X] and [Y] spend the long summer vacation with each of the parties on a week about basis and the Husband seeks the time be spent in a single block.
The Evidence
The Husband
The Husband relies on his trial affidavit sworn 13 August 2018. The Husband also gave vive voce evidence at the final hearing.
Whilst agreeing that for most of their lives the Wife has been [X] and [Y]’s primary carer as she has been engaged primarily in home duties whilst he has been working in his business and on the farm, it is the Husband’s evidence that with the sale of Business G he is now available and able to be more actively involved in [X] and [Y]’s day-to-day parenting.
It is the Husband’s evidence that he has a close and loving relationship with [X] and [Y] and that they will benefit from parenting arrangements that will see them spending considerable time with him and being exposed to his calm and inclusive parenting style.
It is the Husband’s evidence that he believes the Wife’s parenting style to be much more aggressive and confrontational than is his. In his vive voce evidence, affidavit material and in his discussions with the family report writer, the Husband raises concerns about the Wife’s parenting and in particular what he describes as her volatility and her propensity to yell and scream at [X] and [Y], particularly when they don’t immediately do that which she asks of them.
It is the Husband’s evidence that he is concerned that [X] and [Y] do not respect the Wife. He bases this on his observations of [X] and [Y]’s interactions with the Wife and the occasions when they don’t respond to her directions or to her yelling and screaming at them.
It is the Husband’s evidence that there have been recent occasions where [X] has actually hit the Wife during arguments between them.
The Husband describes his parenting as being much less confrontational than that of the Wife. He describes defusing tensions between himself and the children by stepping back and giving them and himself time-out before then discussing any difficulties with them calmly and sensitively.
The Husband raises concerns that since the parties separated under the one roof and particularly since his sale of Business G, the Wife has been reluctant to allow him to become more actively involved with [X] and [Y]. He describes incidences where she has refused to advise him of their extra-curricular activities and school engagements or where she has not permitted him to more actively be involved in taking them to and from school.
It is the Husband’s evidence that [X] and [Y] enjoy helping him out around the farm and that they often accompany him when he is undertaking farm duties.
It is the Husband’s evidence that since he sold Business G, he has been able to attend more school activities and extra-curricular events with [X] and [Y], despite the Wife’s lack of encouragement that he do so. It is the Husband’s evidence that he is thoroughly enjoying having a greater “hands-on” role in their lives.
The Husband agrees that communication between he and the Wife is currently difficult and that the majority of their communication is done by way of text message. It is the Husband’s evidence that the family report in which both [X] and [Y] highlighted the difficulties for them living in the matrimonial home at this time with the acrimony and tension between their parents was a wake-up call. It is his evidence he has worked much harder to reduce the conflict between he and the Wife and to communicate with the Wife in a more positive way.
The Wife
The Wife relies on her trial affidavit sworn 13 August 2018. The Wife also gave vive voce evidence at the final hearing.
It is the Wife’s evidence that she has been [X] and [Y]’s primary carer since their birth. It is her evidence that until very recently, the Husband was not particularly interested or engaged with [X] and [Y] as he would leave for work during the week at approximately 6:30am and not return until after 5:00pm, when he would then go out and attend to farm duties. It is the Wife’s evidence that during the weekend the Husband was predominantly engaged in farm duties, though she agreed at times [X] and [Y] would accompany him whilst he was doing chores around the farm.
It is the Wife’s evidence that she is responsible for taking [X] and [Y] to and from school, save for Friday afternoons when the Husband would collect them on most occasions. It is the Wife’s evidence that she is the parent who arranges and attends medical appointments and school events, arranges play dates and attends to their regular day-to-day care.
The Wife agrees that since the Husband sold Business G he has sought to be more involved with [X] and [Y] and their day-to-day activities. When discussing this with the report writer, the Wife described this as “miraculous” and questioned the Husband’s ongoing commitment to this level of involvement, particularly once litigation has ceased.
When giving her vive voce evidence the Wife continues to be sceptical about the Husband’s ongoing commitment to his recent wish to have increased involvement with [X] and [Y] once litigation is finalised.
It is the Wife’s evidence that it has been particularly difficult since the parties have been separated under the one roof to make arrangements with the Husband for [X] and [Y]’s care. The Wife describes instances of the Husband just telling her that he has organised things with [X] and [Y], rather than discussing them with her beforehand.
It is the Wife’s further evidence that [X] and [Y] are both finding the Husband’s increased involvement in their lives somewhat confusing, particularly when he proposes activities that differ from that which they normally do or are outside of their usual routine and experience.
Whilst agreeing that she and the Husband parent differently, the Wife rejects the Husband’s evidence that her relationship with [X] and [Y] lacks respect or that she is volatile and inconsistent in her parenting.
It is the Wife’s evidence that there are occasions that she yells at [X] and [Y] when they have not done what they have been asked or told, “like most parents”. It is the Wife’s evidence however that she has a close and loving relationship with [X] and [Y] and that there is no lack of respect between them.
It is the Wife’s evidence that [X] has hit her on half a dozen occasions in the last twelve months since the parties separated when he has become angry and frustrated. It is the Wife’s evidence that, whilst this behaviour is not acceptable, after this has occurred and [X] has calmed down, she has sat [X] down and discussed what was concerning him and that he has apologised to her and acknowledged the inappropriateness of his behaviour.
It is the Wife’s evidence that she struggles to communicate with the Husband effectively in relation to [X] and [Y]. It is her evidence any verbal communication between them usually ends up in argument as the Husband insists on pursuing a matter until he wears her down to his point of view.
It is fairly apparent from the Wife’s evidence that the breakdown of the parties’ marriage is something with which she had struggled. The Husband communicated his wish to end the marriage by handing her a lengthy letter from his solicitor in which he advised that he considered the marriage to be over and setting out his proposals for parenting and property matters. The receipt of that correspondence came completely out of the blue and was understandably a major shock to the Wife.
The parties’ continued separation under the one roof has also not assisted the Wife in adjusting to the breakdown of her marriage.
It is the Wife’s evidence that she believes it is in [X] and [Y]’s best interests that parenting arrangements be put in place that would see her continue in her role as their primary carer as this will provide them with the stability and the continuity of the care they have known all their lives.
It is the Wife’s evidence that she does not believe a shared care arrangement would be in [X] and [Y]’s best interests. She believes the continuation of she as [X] and [Y]’s primary carer is the arrangement that will best provide them stability and certainty going forward, particularly when the parties physically separate. Further, she holds genuine concerns about the Husband’s capacity to take on the care of [X] and [Y] for the extended period that he is proposing on his own given he has never had their day-to-day care.
It is the Wife’s evidence that she also genuinely believes that she and the Husband would have real difficulty in achieving the level of communication that would enable shared care to work effortlessly and appropriately for [X] and [Y].
Mr W
Mr W is a social worker and Regulation 7 consultant in private practice who, in accordance with orders made on 13 March 2018, was appointed pursuant to rule 15.10 of the Federal Circuit Court Rules 2001 as a Court expert to prepare a family report in these proceedings. Mr W’s report dated 27 April 2018 is before the Court as an annexure to his affidavit sworn 21 May 2018. Mr W also gave vive voce evidence at the final hearing.
In his family report Mr W sets out the Husband’s comments about the Wife at paragraphs [30] and [40] as follows:
“30. He said of Ms Goldsmith: “Looks it’s like she’s got seven personalities. Her good self is fabulous, loving, she reads to the kids every night and does all that good stuff. I feel the kids don’t have respect for her. They don’t know if she’s going to kiss or yell at them.”
…
40. He has concerns about the children in the mother’s care, mainly because she is unpredictable: “They don’t know if they are going to be yelled at or going to be given a cuddle. It destroys me every morning, seeing them having a fight over breakfast. It’s too hard for me to get involved. I just flit around and do things and she just does not notice. But if they are just with her all the time, I just don’t think it’s a good outcome long-term. They are beginning to think, if I’m wrong, yell louder and then I’m right.” His older children have turned out well, with strong work ethics. They are good fathers and husbands. He thinks he has a good influence on his children, but he is limited in how much influence he can exert: “I can see if I’m not part of the kids’ life, I don’t think they are going to turn out well.””
Mr W sets out the Wife’s observations of the Husband in paragraphs [54] and [58] as follows:
“54. Her marriage to Mr Stinson was initially happy. She has been primarily involved in the children’s care and Mr Stinson worked long hours in the business. There were tensions over the division of labour: “I became very overwhelmed with the fact that Mr Stinson did nothing and I was left to do all the domestic stuff. Mr Stinson did what he wanted – ‘I’ve worked hard all day’. Basically I was expected to be there for him and it just started to deteriorate.” They argued over differences of opinion n raising the children: “Mr Stinson has more 1950s values.” She wanted him to ensure they wore sunscreen and hats: “I always had to insist on it. To me it should have been done and he said I was nagging.” Basic things like ensuring the children wore helmets with motorbikes was a source of tension and argument. Towards the end of the relationship, “I became quite paralysed towards Mr Stinson. I had no opinion. It was his way or the highway and he just dismissed me. It’s not what I wanted it to be. He was so dismissive of me.”
...
58. She acknowledges that, since the separation, Mr Stinson has appeared more interested in connecting with the children and meeting their needs, describing it as “a miraculous change.” She added, “I’m worried is it sustainable? He is not a bad man. He just does things for himself and just focuses on himself.””
In relation to the parties’ current communication and relationship, Mr W describes what the parties told him in paragraphs [63]-[65] as follows:
“63. Mr Stinson said he communicates with Ms Goldsmith mainly by text message. Despite living in the same house, “if I say anything she twists it around. I’m happy to talk about the kids.” He understands Ms Goldsmith may feel hurt about the end of the relationship and that it is difficult at the moment. Currently, they try and avoid each other as much as possible around the house. He thinks he has a moderating influence on the dynamics between the children and their mother: “They have little respect for her. They seem to have respect for me. I’m straight down the line.”
64. Ms Goldsmith told me that, at this stage, “Unfortunately I don’t wish to talk to Mr Stinson. Over the last three or four months he has blatantly lied about a few things and it’s about trust.” They remained in the same bedroom for several months, until only recently and I asked why she stayed there. She said, “I’d been bullied for years and I knew Mr Stinson, and if I left, Mr Stinson will have felt he was getting on top and succeeding.” Additionally, after separation Mr Stinson was emotionally inconsistent, sometimes touching her affectionately but then withdrawing affection. He started to become more private over his phone and was getting messages at night. He joined a dating website in mid-November 2017. She said, “I just did not want to be bullied anymore. I was confused.”
65. She said that, at this stage, in terms of communication, “I like everything to be in writing.” She added, “Mr Stinson seems to want to engage with me all the time.” Text messages are sometimes functional, depending on what they are about.”
Mr W sets out his discussions with [X] about the separation and how the current arrangements are impacting on him in paragraphs [68] and [69] of his report as follows:
“68. His parents separated in November last year and it came as a surprise. His mother collected them from school and told them. He remembers feeling confused, unhappy and a little angry. I asked if, looking back on it now, he thinks it is a good thing they separated. He said he does not know. I asked if much has changed for him personally. He said, “It feels different. Dad has moved into the spare room. They’ve been yelling a bit more.” They do not really talk to each other now, and if they do, “they disagree.” I asked what these dynamics are like for him and he said, “Kind of annoying if I’m doing my homework and there is stuff int eh background and I can still hear it.” He does not know if they are on friendly terms. Before they separated they had disagreements.
69. He knows his parents went to Court in March and his father moved out of the main bedroom on the same day. He also knows they have agreed to he and his sister having some holiday time with each of them separately. His parents have been behaving differently: “They are just trying to get us to like them more.” Before they separated, “Mum was normally putting us to bed, driving us to school and cooking more.” Now, “Dad is trying to do more of it. I don’t know why.” I asked what it is like for him to have his father more involved. He said, “Good and bad.” His mother thinks it messes up their routine a bit. He finds it “kind of annoying” that his parents fight over who cares for them: “I don’t care who does it.””
Mr W sets out the discussion that he had with [X] in relation to both of his parents in paragraph [70] as follows:
“70. I asked what he likes most about his father. He said, “He lets us do stuff we want, when we’ve done our jobs and stuff.” I asked what he might like to change about his father and he did not know. I asked what he likes most about his mother. He said “She normally unpacks my bag and everything, and makes me lunch, and lets me do what I want.” I asked what he might like to change about her and he replied, “Let me do more stuff by myself.””
Mr W ran some scenarios past [X] in relation to possible future living arrangements. [X]’ responses to those possible scenarios are set out in paragraphs [73] and [74] of the report as follows:
“73. I asked what it might be like if a decision is made for him to live mainly with his mother and spend time with his father, perhaps for a night during the school week and on alternate weeks Mr Stinson’s. He spoke about it being possible annoying because he might not know who he is spending time with on what day. He then volunteered, “I think it’d be easier, and I know Dad thinks it would be fair, like if I have one week with Dad and one week with Mum, and vice versa.” I asked what it might be like for him if they decided on a week-about arrangement. He said, “I don’t know. Maybe if like, the parent that moved out lived close to school, I could go and see friends.” I asked what might be difficult about it for him. He said, “Taking all my stuff.”
74. I spoke about how a decision might be made that he lives mainly with his father from now on and spend time with his mother, perhaps for a night during the week as well as on alternate weekends. I asked what it might be like for him. He said, “I don’t know. Good and bad I guess.” He did not elaborate.”
In relation to [Y], Mr W sets out his discussions with her about her parents in paragraph [79] as follows:
“79. I asked what she likes most about her father. She said, “He lets us go out on the farm.” I asked what she might like to change about him and she declined to answer. I asked what she likes most about her mother. She spoke about having “rumble fights” where they climb on top of each other. I asked what she might like to change about her mother and she spoke about having “more rumbles every day.””
In relation to possible future living arrangements, [Y]’s thoughts about those are set out in paragraph [81] of Mr W’s report:
“81. I spoke about how her mother and father are currently living in the same house but there will probably come a time when one moves. [Y] thinks it will be hard when it happens, because she will have to move back and forth all the time. I talked broadly about how different decisions can be made for children when parents live in different hoes, and asked if it worries her that these types of decisions will be made. She said she “sort of” worries. She declined to answer a number of questions about what it might be like for her to live primarily with either parent. She then said, “I’d stay one week with one and one week with the other. It’s easier, because then it’s fair.” I asked if she thought anything might be hard about living in a week-about arrangement. She said, “No, because it’s fair. Fair is good.””
Under the heading “Evaluation”, Mr W made the following observations in relation to [X] at paragraphs [91] and [92]:
“91. [X] expresses fondness and respect for each of his parents. The separation has troubled him, especially the changed dynamics in his home. He is worried about what lies ahead, and my sense is that he is invested in securing and maintaining relationships with each of his parents. He has a sense that they are not on good terms with each other and, although he does not define it this way, he describes a sense of exposure to competitive parental conflict, where each is trying to endear themselves as much as possible to him.
92. [X] expresses views in favour of a week-about arrangement. His reasoning is twofold: firstly he thinks it is fair and, secondly, his father wants it. It is plain from the way he presents his views that he has been exposed to his father’s thinking on the subject. Regardless of the future living arrangement, he is worried about his parents living in different households and the potential for it to be confusing or practically difficult to manage.”
In relation to [Y], Mr W summarises his observations of her at paragraphs [95] and [96] in the following terms:
“95. [Y] expresses fondness and love for each of her parents, in interview and observation. The difficult household dynamic is obvious to her and discomforting. I take from her comments that she is not reconciled to her parents’ separation and wants them together again. She favours a structure of equal time because she thinks it is fair. While she may have been exposed to the father’s positioning on this subject, I think that, in her own childlike way, the concept of fairness also brings an implication that peace and harmony will follow.
96. In observation, [Y] is capable of displaying affection and warmth to her parents. She maintains secure, exploratory and childlike behaviour during the transitions, although she appeared quite as the father was leaving at the end of the day.”
Mr W notes in his report that both [X] and [Y] became quiet when the Husband and the Wife came into contact with each other.
Mr W describes in paragraph [98] parenting capacity as “the ability of a parent to meet the developmental needs of the children and protect them from harm”. His observations of the parties’ parenting capacity is:
“There is no information as part of this assessment that leads me to a view that either parent lacks the capacity to meet the children’s needs. While they each have concerns about the other, I do not think these amount to child protection issues.”
In paragraphs [101] to [104] Mr W sets out the concerns he has in relation to the parties and their parenting of [X] and [Y]:
“101. I have greater concerns about the quality of the co-parenting relationship, which appears to be poorly equipped to manage an equal shared-living arrangement. Their communication is limited, they have significant mistrust towards each other and both appear to be invested in competitive conflict over their children.
102. I suspect the co-parenting dynamics are worsened because the parents remain living together, for which they blame each other. It is also early days after separation and the emotional fallout is likely to have some effect on their judgment and insight.
103. The backdrop to the parental relationship is concerning, with each describing a sense of powerlessness at the hands of the other. While neither describes dynamics consistent with family violence, they have been locked in a battle for power and control, engaging in tactics of avoidance and confrontation, with limited ability to resolve conflict.
104. In terms of their presentation, I think the parents display limited insight as to how they each contribute to the parental conflict, and instead are heavily focused on the conduct of the other. The assessment leaves me with greater concern about the father’s overwhelming negativity towards the mother. In interview he was incapable of maintaining a focus on the questions asked, prosecuting a recurring negative theme about the mother and her capabilities.”
Mr W considers both the advantages and disadvantages of an equal shared care arrangement in paragraphs [108] and [109]:
“108. There are advantages for the children if they live in a week-about arrangement. It allows them the scope to experience each parent’s care in a regular, frequent and broad-ranging manner, encompassing school time, non-school time and special events. It allows them the scope to understand the father as a more broad-ranging caregiver, in circumstances where he has been less involved in meeting the daily aspects of their care. It creates an opportunity for them to reappraise each parent as a single parent. It also appears to accord with the children’s wishes, insofar as assuring them of a way to keep both parents in their lives.
109. There are disadvantages. It creates a structural change by removing them from substantial time with their mother, in circumstances where she has met the bulk of their day-to-day needs throughout their lives. It is likely to be demanding for the parents to communicate more about the children’s day-to-day issues, which I suspect will contribute to the conflict, rather than diminish it. There is a risk that the children’s needs will be met inconsistently between these contrasting environments.”
Mr W also considers the advantages and disadvantages of [X] and [Y] living primarily with one of their parents in paragraphs [110] and [111]:
“110. There are advantages in having the children live primarily with one of the parents, spending regular, frequent and broad-ranging time with the other. They are more likely to have consistent, day-to-day routines and practices from one household rather than from two and it lessens the extent to which the parents have to communicate.
111. There are disadvantages in that appears to go against the wishes expressed by the children. It also lessens the extent to which they may have the opportunity to be cared for by one of the parents.”
In paragraphs [112] and [113] Mr W sets out his view of what living arrangements he thinks would best serve [X] and [Y]:
“112. I am of an overall view the children would be best served if the parents live in separate households as soon as possible. Despite their wishes and potential gains, I do not think an equal shared-living arrangement is likely to be well sustained for them and I do not support it.
113. If the Court does not support instigation of an equal shared-living arrangement, I am of the view the children should live primarily with their mother, as it is in keeping with their longer-term structural history and she has more experience and consistent involvement in their day-to-day needs. They should also spend regular, frequent and broad-ranging time with the father, encompassing school time and non-school time.”
Accordingly, under the heading “Recommendation” at paragraph [115] Mr W states the following:
“115. It is recommended from this assessment that:
a. Once the parents live separately to each other, the children live with the mother.
b. They spend regular, frequent and broad-ranging time with the father, encompassing school time, non-school time and special events. A suggested arrangement is:
i. In a fortnightly cycle during school terms – in week one from after school on Thursday to before school on Friday, and in week two from after school on Thursday until Sunday evening.
ii. School holidays are shared equally between parents.
iii. Special events are shared between parents.
c. The children communicate with either parent at any reasonable time, and the parents are at liberty to communicate with each child at any reasonable time.
d. The parents communicate in writing, if they are unable to remain on speaking terms, ensuring that their written communications are not shown to the children.
e. The parents will not speak unkindly about each other to or in the presence of the children and ensure no other person does so.
f. The parents will not question the children about the personal life of the other parent.
g. The parents consider attending psycho-education on the importance of protecting children from exposure to parental conflict, such as by way of a Parenting Orders Program.”
When giving his vive voce evidence, Mr W had put to him by Counsel for the Husband that he had not analysed in his report the potential conflict between [X], [Y] and the Wife.
Whilst accepting that he didn’t specifically address that issue, Mr W stated that what he did was to address the issue of parenting capacity. He then stated the following:
…part of my thinking in relation to the issues of parenting capacity go to whether or not there are fundamental difficulties in the dynamics between the parents … I find it difficult to see the Father’s concerns about those dynamics from outside of the prism of the parental conflict and the issues of mistrust that are there and balanced against the long-standing history of the children being in the Mother’s primary care for a substantial amount of time.
So I accept that the Father has those concerns. I highlight those concerns in relation to what the Father sees as concerns.
I certainly accept that I don’t see those dynamics necessarily as concerns that would warrant the intervention of the court, or that might have a bearing on the ultimate outcomes for the children in the relationships they have with each parent.
He has a perspective of the dynamics between the children and the Mother which is negative. He doesn’t think that they function very well, particularly around the mundane aspects of day-to-day life.
I am not of the view that those issues are necessarily insurmountable issues, or issues that would warrant the attention of the court.”
When further questioned about the evidence that [X] had been hitting his mother, Mr W made the following observations:
“…the behaviour at the time he ([X]) was emotionally triggered was disrespectful.
But what … he ultimately shows, if the court accepts the Mother’s description of this event, that there’s a capacity for [X] to self-reflect on his behaviour when he was emotionally triggered and to show some insight that the way he responded was not okay and there was the ability for the Mother and the child to repair following a difficult episode between them.”
Mr W then made the following observations in relation to [X]’ behaviour:
“Your Honour, I see this entirely in the context of two children living in an untenable situation. This is a pressure cooker for these children and they are doing what children do which is to act out behaviourally against the authority figures and what I – if the court accepts this description of what occurs, here are two parents who are losing the capacity for parental authority because of their conflict. The Mother cannot assert boundaries because there’s this playing off and there’s this very contrasting almost competitive parenting styles and so her ability to assert authority and – and boundaries in this situation is difficult and the Father approaches it from a very different way and he may gain traction and do that very well, but, while they’re doing this together under the one roof, neither can assert a reasonably congruent parenting style that is obviously then acceptable to the children. So … I think they’re acting out. I think [X] is acting out because this is, you know, incredibly distressing for them.”
When challenged as to whether he was able to make an assessment about whether the children are more calm with the Husband and more volatile with the Wife, Mr W succinctly responded:
“No. All I had is the comments of the children that indicate fondness and respect for each parent.”
Mr W described the difficulties he had in preparing his assessment because the parties remain separated under the one roof and did so at the time he saw the family in the following terms:
“Overshadowing that, in my assessment, is the difficulty I had in seeing this family separated under the one roof; trying to assess very difficult attempts at asserting parental authority and parenting capacity when they are living together and there is blurred lines in demarcation to try and parent the children as separated parents.
So here are two parents locked in what I think, in my view, is a model of competitive conflict with each other over the children … the Father trying to assert and reshape his parenting of them as a separated parent in circumstances where the Mother is there and present all time, and the Mother trying to do what she, in a sense, feels she has always done with the Father trying to take on her role.
…so that was the difficulty I had, and that was what, I think, has overshadowed all of my assessment of this family.
It’s, in a sense, trying to assess a muscle that’s in spasm that it’s – the walls are closing in on this family and there’s an enormous amount of pressure, and it’s difficult to know whether or not the Mother’s temperament and capacity for insight and reflective parenting is going to be different once the parents live apart from each other. … And that’s an equally – the same question that I have about the Father. It’s a difficult assessment to make because their circumstances systemically, are very difficult.”
Mr W was asked whether his recommendations would be altered if the Court found that the situation between the parties had improved from what he had observed them to be in April. Mr W responded as follows:
“If her Honour was more confident that the co-parenting dynamics had improved under difficult conditions, and were likely to improve once the conditions were more settled for the – and certain for the parents … then, yes, that softens the stance I have against it moving into a more robust arrangement between the children and each parent … that the parents might be more equipped to communicate well enough around a wider array of topics pertinent to the children’s day-to-day lives, to make the arrangements work in a reasonably consistent way.
That, however, needs to be balanced against my sense that the parents are very different types of parents, and I think they each bring very good qualities and resources to the children. But the contrast between these environments, and the different parenting styles, is somewhat untested and I am hesitant about that aspect of it about how they will go managing a structure of much more robust (sic) between the homes on that basis.
It’s balancing the resources on offer from each parent … to receive … real hands-on care from each parent in broad-ranging way encompassing school and non-school time. And for their father particularly the advantage is they develop a greater understanding of him as a more broad-ranging caregiver. But it has got to be balanced against the capacity of the parents to actually cope with the structure and to communicate well enough to manage it without polarising and, sort of, competing from these polarised positions and the children transferring between fairly mutually exclusive environments and ending up as the conduit of information between them.
I’m trying to put forward a governing principle that the court should look to something that allows a balance of broad-ranging time and resources against a need to protect the children from conflict.”
Mr W was asked whether the recommendation in his report came from the background of ensuring the Father had school time, non-school time, special events and the like. Mr W agreed that is the basis of his recommendation. He was then asked:
“I take it there wouldn’t be any particular magic in it being Sunday evening or Monday morning, from your perspective?”
Mr W responded as follows:
“No. And there are advantages and disadvantages of Monday morning. The obvious advantage is that it avoids a changeover between the parents and it creates a more seamless changeover point. So that’s certainly an advantage of it. But there’s – there’s no science to it being a Sunday night or a Monday morning.”
Mr W agreed with the observation that Monday morning would be another school-time event for the Father if the Court was to primarily place the children in the Mother’s care.
In conclusion, Mr W was asked the following question:
“If the children have flourished under the care of the mother, effectively, you’re saying, in essence, that because of that success, balancing the other considerations, that should be the primary guiding force in terms of what best meets their needs into the future?”
Mr W answered as follows:
“Yes, that ultimately the children have an opportunity to develop a relationship of substance and meaning with their father, which may differ to way they have appraised him previously, because his role must change if he is to care for them, and that the children have an opportunity for that. And in my view, the court should afford the children that opportunity. But I think that an equal-shared living arrangement is going to be difficult for this family, based on what I have seen.
And going back to the issue of parenting capacity, the concern – the only concern I have in relation to both of the parents at this stage is in relation to their capacity to assert parental authority, and I think the risk to that is their parental conflict.”
The Best Interests of the Child
Part VII of the Family Law Act1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
“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.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CA of the Act provides that:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
To determine what is in the best interests of the child, the court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the court, must be considered and assessed in the context of each of the parties’ proposals. The court should then make a decision as to which of the parties’ proposals, or such other arrangement as the court determines given the court is not bound by the parties’ proposals, is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the court must consider when determining what is in the best interests. They are as follows.
Section 60CC(2)(a) – The benefit of the child having a meaningful relationship with both of the child’s parents
It is apparent from the evidence that [X] and [Y] have a close and loving relationship with both the Husband and the Wife.
Whilst the Husband alleges that [X] and [Y]’s relationship with the Wife is volatile and that they don’t know whether they’re going to have a mother who cuddles them or yells at them, this is not borne out by [X] and [Y]’s comments to the report writer.
When they were both asked by Mr W if there was anything they would like to change about either parent, neither made comment that they would like “their mum to yell at them less”. [X] just wanted his mother to let him do more stuff by himself. [Y] just wanted more “rumbles” every day from her mum; “rumbles” being a game where they jump on and cuddle each other.
The Wife concedes there are times where she yells at [X] and [Y] when they haven’t done what they’re told. Given, on both parties’ evidence, she has been the parent who has had the vast majority of the children’s care up until very recently, it is not surprising that at times she has had to be the disciplinarian and the parent who has required the children to behave themselves. This is particularly so given, on his own evidence, the Husband removes himself from any situation in which [X] and [Y] need to be disciplined, leaving it to the Wife.
The Husband now owns ‘Property D’. There is no dispute between the parties that they both contributed to that property by constructing the former matrimonial home on it as well as other general improvements on that property. The contributions made by both parties to the current value of ‘Property D’ and to other properties inherited by the Husband will be considered in determining the property orders this Court will make.
Assets and liabilities
Sale proceeds from Business G
The settlement statement prepared upon the sale of Business G shows the net amount payable by the purchaser to be $122,203.95. The Wife argues this figure reflects the net proceeds of sale and it should be used in the table setting out the parties’ assets and liabilities.
It is the Husband’s evidence that at settlement of the sale of Business G the purchaser paid $122,203.95. It is his evidence that from this amount the business overdraft needed to be paid.
When the Husband’s application first came before Judge Jarrett in the Federal Circuit Court on 13 March 2018, order (4) of the consent orders provides that from the net proceeds of sale of Business G, the sum of $21,673.03 be used to discharge the business overdraft and that the balance be placed in trust. It is the Husband’s evidence that the amount of $100,702 which is currently held in trust pending the outcome of this matter is the net proceeds of sale of the business.
I am in total accord with the Husband that the figure of $100,702 reflects the net proceeds of sale of the business after its liabilities had been discharged, those liabilities including the business overdraft.
The value to the Husband of the Business G bad debtors
As part of the sale of Business G the Husband retained the right to receive three bad business debts of the business being those owed by … Company of $33,104.65, … of $32,485.75 and Mr V of $38,425.26.
It is the Husband’s evidence that … Company have been repaying him at the rate of $200 per week and … have been repaying him at the rate of $300 per week as well as providing him with a fuel card.
It is the Husband’s evidence that he does not expect to receive any monies from Mr V as this debt has been outstanding for a considerable period of time. The Husband therefore argues that the value to him of the outstanding bad debtors is $48,320 and not $90,780 as claimed by the Wife.
The Husband has placed no evidence before the Court in relation to the age of the bad debt of Mr V . Further, he has placed no evidence before the Court as to what steps, if any, he has taken against Mr V in order to recover the monies owing to him.
In these circumstances the totality of the bad debts to which the Husband is entitled will be included in the list of assets and liabilities of the parties.
Possible income tax payable by the Husband from the remaining bad debtors of Business G
The Husband is seeking that allowance be made to him for an estimated $13,288 in income taxation he could be required to pay if he were to receive the amounts owing from the bad debtors.
Again, the Husband has not placed any evidence before the Court as to how such amount is calculated, whether it includes receiving the debt of Mr V, whether some of that taxation has been paid given his evidence that two of these debts are being paid off over a period of time and how that figure is calculated given he is he currently not earning an income and the Partnership is running at a loss.
Further, there is no evidence before the Court that if the Husband or his accountant decided to write off the debt to Mr V, whether this loss could be offset against any taxation payable by the Husband for monies received by him from the remaining bad debts.
In these circumstances no allowance will be made for some unknown potential tax liability of the Husband.
Partnership expenses paid by the Husband
The Husband is seeking to have partnership expenses of $10,310 paid by him included in the parties’ liabilities.
There is no evidence as to why the Husband should be credited for the payment of these partnership expenses in circumstances where prior to separation it is both parties’ evidence that the Husband was responsible for the partnership debts and the Wife for the parties’ day to day living expenses. It is the Wife’s evidence that these liabilities were incurred without consultation with her and therefore without her agreement.
Further, the consent orders made in March 2018 provide for the Husband to be responsible for attending to and managing the Partnership and its liabilities.
In these circumstances I am not satisfied that the partnership expenses paid by the Husband are liabilities that he should be credited for.
Weekly payments to the parties pursuant to orders of 13 March 2018
Orders (9)(e) and (9)(f) of the orders made 13 March 2018 provide for the Husband to be paid $500 per week and the Wife to be paid $250 per week from the ANZ Partnership account ending …. The orders of 13 March 2018 also provide that such payments are to be characterised as to their nature by the trial judge.
Neither counsel made any submissions as to how these funds should be characterised at trial or in their submissions in February 2019. Neither party included the monies received by them pursuant to these orders in the balance sheets, their outline of case documents or the written submissions received in August 2018 and February 2019.
However, in the balance sheet included in the document provided by the Wife’s legal representatives to the Court on 26 March 2019, under the heading “ADDBACKS” the following was included: $113,000 (W) being part property settlement pursuant to paragraphs (1)(b) and (9)(f) of the orders of Judge Jarratt made 13 March 2018 and $126,000 (H) being part property settlement pursuant to paragraphs (1)b) and (9)(e) of the orders of Judge Jarratt made 13 March 2018.
In the “aide memoire” accompanying the documents provided by the Wife’s solicitors on 26 March 2019, there is nothing that addresses why the Court should characterise the weekly payments received by the parties from the Partnership account as “part property settlement”.
Neither party has been in paid employment since the making of the orders on 13 March 2018. Both have been required to meet their day-to-day living expenses and that of the home and their children during this time. These funds, it is assumed, have been used by both parties to this end. As such, these payments must be seen as being used by both in meeting their ordinary day-to-day living expenses. These payments are clearly not part property settlement and will not be characterised as such. Therefore, they will not be added back to the pool of assets for division between the parties.
The Pool
Save for the matters now determined by the Court, the parties, having obtained joint valuations in relation to the remainder of the asset pool are in agreement as to the value of the real estate, the partnership plant and equipment and livestock and their other assets.
In the parties’ outline of case documents, their written submissions in August/September 2018 and in the documents that were produced at the conclusion of trial submissions in February/March 2019, each included what was termed a Balance Sheet. Each of the parties’ various Balance Sheets contained different figures for the balances in the Partnership Accounts ending … and …, the joint account ending …, the Business G Business account ending … and the Wife’s various personal and business accounts.
On 29 March 2019 correspondence was sent from Chambers to the parties’ solicitors seeking the parties confirm the balance of the accounts referred to in paragraph [234] of this judgment as at 29 March 2019. The correspondence also asked the Wife to confirm whether the funds currently held in her personal accounts were received by her before or after separation. The correspondence advised that it is her Honour’s practice not to include monies received after separation in the list of assets for division between the parties.
On 29 March 219 in separate responses the parties confirmed the amounts currently in the Partnership and joint accounts as at 29 March 2019.
The Husband’s solicitors advised the current balance of the Business G Business account is $5,094.28.
The Wife’s solicitors advised the funds in the Wife’s account ending … are funds received by the Wife post separation. The monies in her ING account ending … of $1,909.58 are pre-separation funds and of the total sum of $449.83 in the Business K account ending …, $100.00 was deposited into that account post-separation.
Accordingly, the pool of assets for division between the parties is:
TABLE A
Asset
Value
74 Property B $160,000 17 Property C $290,000 Property J property $875,000 Sale proceeds of Business G Pty Ltd $100,702 Business G ANZ Business Advantage account … $5,094.28 Bad Debtors of Business G $90,783 Sale proceeds of 50% interest in Property F $247,587 Mr Stinson and Ms Goldsmith Partnership,
consisting of:
a. Farm at (‘Property E’)
b. ANZ Term Deposit A/C …
(contains net sale proceeds of Property F)
c. ANZ Bank A/C ending …
d. ANZ Partnership A/C ending …
e. CattleE$550,000
E$430,970$5,119.40
$11,466.94
E$143,900Plant and equipment held personally, by the partnership and previously held by the business including motor vehicles, trailer, tractors, grader, dozer, loaders, truck, slashers, Argo etc $167,760 Business K (Wife) $349.83 ANZ account no. … (Joint) $10,310 Monies received by way of part property settlement (Husband) $100,000 Monies received by way of part property settlement (Wife) $100,000 Bank accounts (accounts …) (Wife) $1,909.58 Motor Vehicle L (Wife) $4,800 564 Shares H (Husband) $1,918 134,744 Shares M (Wife) $8,085 13,000 Shares N (Wife) $52 Furniture and contents (Joint) *$20,000 Inheritance Property Residence, sheds and land known as ‘Property D’ $900,000 Land situated at the property known as “Property P” $600,000 Land situated at the property known as ‘Property Q’ $190,000 Estimated residue of Estate (as per estimated value given by Ms Phillipa Howsan, Solicitor for the Second Respondents at Court on 21 February 2019) $100,000 Total $5,095,807.03 * excluded as is being divided in specie between the parties ** amount currently in this account as it has been reduced because of payments made pursuant to orders made 13 March 2018 Liabilities ANZ Equity Manager Loan A/C … $109,066 ANZ Residential Investment Loan A/C … $61,820 … Package Equity A/C … $285,825 … Mortgage Loan A/C … $137,843 Rabo Bank loan $148,195 Estimated taxation payable on the sale of the business Business G for the financial year ending 30 June 2018 E$1,287 Total $744,036 Total net non-superannuation pool $4,351,771.03
Superannuation Stinson Goldsmith Self Managed Super Fund E$360,597 Stinson Goldsmith Self Managed Super Fund E$120,024 Total E$480,621 Total pool $4,832,392.03
Contributions
The Husband is seeking an adjustment in his favour of 15% for the contribution made by him as a result of his post-separation inheritance from his late father’s estate.
It is submitted on behalf of the Husband that the parties’ asset pool has increased by $1,700,000 as a result of the Husband’s inheritance.
It is further submitted on behalf of the Husband that both parties came into the relationship with considerable assets. The Wife owned properties in Property J and Property T and the Husband owned the house he was living in in Town A as well as two renovated investment properties in Town A, his business Business G and the property upon which the business was conducted.
It is the Husband’s evidence that during the marriage the income he generated from the business was utilised to meet the Partnership debts once it was established as well as assisting in the family expenses. The Husband agrees that the Wife also met the day to day family living expenses from her endeavours.
The Husband argues that not only did Business G generate income which benefitted the whole family, it also made a considerable contribution to the construction of the former matrimonial home and to the improvements to the parties’ farming properties, saving the parties considerable expense.
Whilst at the trial in August 2018 and again in February 2019, the Wife sought an adjustment of 30% in her favour for her contribution, in the documents received on 26 March 2019 she adjusted the amount she sought for contribution to 5% in her favour. She argues that this is an appropriate adjustment as it acknowledges what she describes as the consumption of her pre-cohabitation assets during the marriage for the benefits of the parties and the increase in the parties’ overall financial position. This includes contributions made by her to the properties that have been inherited by the Husband from the estate of his late father, particularly the property known as ‘Property D’ upon which the former matrimonial home is built. It is further submitted this adjustment reflects her superior parenting and homemaking role.
Whilst both parties have sold assets owned by them and utilised the proceeds of those sales to invest in other properties and both have drawn down on their respective lines of credit to contribute to their current property holdings, the following table shows that the Wife has directly contributed $327,000 more into the parties’ various financial endeavours than has the Husband, albeit Business G has undertaken considerable works on the former matrimonial home and on the farming properties at no charge to the parties, such contributions being impossible to financially quantify.
TABLE B Breakdown of: contribution to and payments received from matrimonial assets and payments received by the parties from pre-cohabitation assets Wife’s contributions Husband’s contributions 2007 $200,000 to construction of the former matrimonial home 2007 $230,000 (including $100,000 gift from his parents) to construction of the former matrimonial home Throughout the relationship Frames/sheds/water tanks/dams, solar panels, fencing provided by Business G to construction of former matrimonial home and the farming properties generally 2010 $547,200 to the purchase and repairs of Property F 2010 $101,707 to purchase of Property F 2010 $82,914 towards self-managed superannuation fund 2010-2018 $310,000 towards self-managed superannuation fund 2012 $253,600 to purchase of ‘Property E’ Total $1,083,714 Total $641,707
Payments received by the Wife Payments received by the Husband $192,484 from sale of half interest in Property F $77,616 from sale of half interest in Property F Total $192,484 Total $77,616 NET: $891,230 NET: $564,091 Difference: $327,139
It is the Wife’s evidence that both the paternal grandfather and the paternal grandmother told her when the former matrimonial home was being built that ‘Property D’ would be given to both she and the Husband.
The very brief evidence of the maternal grandfather Mr BB is that on two separate occasions at family functions the paternal grandparents told he and his wife that they were very happy the parties were living on ‘Property D’ and that they would be gifting them the property in their will.
It is submitted on behalf of the Wife that given the representations made by the paternal grandparents that both she and the Husband would be gifted ‘Property D’ and the considerable financial contributions made by her towards the construction of the former matrimonial home on that property, which on the evidence of the valuer has increased its value by $600,000, this property should be seen as one to which both parties have contributed and not as something that has been solely contributed by the Husband as a result of his inheritance from his late father’s estate.
It is submitted on behalf of the Wife that when assessing the parties’ contributions to the totality of the asset pool available for division between the parties, the Court should not undertake some mathematical exercise or attempt to attribute varying levels of contribution to different assets based on when they were received by the parties or what the source of the assets were.
Counsel for the Wife referred the Court to the Full Court decision of Dickons & Dickons [2012] FamCAFC 154 where the Full Court held at paragraphs [20] and [21]:
“[20] Put another way, consistent with authority, the s 79 discretion involves as a necessary requirement that “… trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski (1996) FLC 92-705 at 83,437). In Aleksovski, Kay J outlined the well-known “gold bar” analogy and said “[w]hat is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship” (at 83,443).
[21] Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79). That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640-641 “…where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property…” or is it, for example, a union where parties lived very separate domestic and financial lives?”
Further in Dickons (supra) at paragraphs [23] to [26] the Full Court, to use the words of the Wife’s Counsel in his further written submissions “ warned of the dangers of partitioning the contributions”:
“[23] We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
[24] There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
[25] Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “…giving over-zealous attention to the ascertainment of the parties’ contributions…” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
[26] The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.”
As has been shown in “Table B” contained in paragraph [246] the Wife’s direct cash contributions to the parties’ current property pool that came directly from her pre-cohabitation assets exceeds those made by the Husband. This however is only half of the picture as this calculation does not take into account the fact that a considerable proportion of the parties’ current asset pool, excluding the Husband’s inheritance, is made up of assets that were owned by the Husband at the commencement of co-habitation or are the proceeds of sale of his pre-cohabitation assets. This is set out in “Table C” below.
TABLE C Wife Husband Table B $958,808 Table B $564,091 Property J property
$891,230
-$423,668$451,332
Property B $160,000 Property C $290,000 Sale proceeds, Business G $100,702
50% sale proceeds, Property F $247,587
Cattle from partnership $42,500
Business G, bad debtors $90,783
(less liabilities) -($172,173) TOTAL $1,342,560 $1,323,490
In this matter both parties have made considerable contributions both directly and indirectly to the property pool that is currently available for division between them.
Both parties brought considerable assets into the relationship. Those assets have been utilised, by agreement, in the investment in and development of the current asset pool.
The parties made the decision to build their home on property owned by the Husband’s father in the expectation that that property would pass to them, or at least to the Husband, when the Husband’s father passed away.
The parties made the decision to purchase the property ‘Property E’ as that consolidated and brought together the various blocks upon which the partnership’s farming enterprise was taking place.
After the birth of the parties’ children, the Wife curtailed her professional life to assume the role of primary homemaker and caregiver to their children. The Husband continued to work long hours in his business and to run and manage the partnership farming business.
The Husband’s income from his business was primarily utilised to meet the partnership expenses whilst the Wife’s income and resources were used in meeting the day to day living costs of the parties.
Both parties sold assets owned by them at the commencement of cohabitation to invest in other properties, to contribute towards the construction of the former matrimonial home, to support the Partnership and to support their family. Some of the assets owned by them remain in specie and the proceeds of sale of others remain for division between them.
Whilst the Husband’s inheritance was received post separation, and might in some circumstances be viewed as a contribution made solely or primarily by him, the circumstances in this matter are unusual. It is quite apparent that the parties both made contributions towards at least part of that inheritance by the construction of the former matrimonial home on ‘Property D’ which has measurably increased its value. They have also made contributions to the other inherited properties by farming that land, and by maintaining them and improving the quality of them.
As was held by the Full Court in Dickons (supra), it is not appropriate to undertake a precise mathematical accounting exercise when determining the division of assets between parties after the breakdown of their marriage. Rather, the Court must take a holistic approach.
When considering the totality of both parties’ contributions to the assets available for division between the parties at this time, including their pre-cohabitation assets, how those pre-cohabitation assets have been used by the parties, the parties’ contributions during their relationship, the Husband’s inheritance and the contributions made by both parties to the inherited properties, particularly ‘Property D’, I am of the view that there should be an adjustment in the Husband’s favour of 10%.
Section 75(2) factors
Whilst neither party argued there should be an adjustment in their favour pursuant to section 75(2) factors at the final hearing in August 2018 or again at the further hearing in February 2019, the Wife’s legal team in the documents provided 26 March 2019 stated in paragraph [15 of the “aide memoire” that “The Wife … seeks a further adjustment pursuant to s. 75(2) factors including her continued role as the primary carer of the children of a further 10%.”
The Husband made the decision, shortly after separation, to sell his business. He wishes to retain the entirety of the farming properties so that he can pursue his wish to make a living as a farmer raising and selling cattle. The financial viability of such an exercise is unknown given thus far the Partnership has not been profitable as a part time pursuit during the marriage.
The Wife is a professional who has historically held positions in which she was well renumerated. Since the birth of [X] and [Y], the Wife has been primarily engaged in home duties, albeit she has established her own consultancies through which she has been able to earn some small income.
It is the Wife’s evidence that she has been unable to find suitable employment local to where she is currently living and has expressed some concern about her capacity to do so going forward. However it is apparent from the evidence that she has not actively sought employment in the local area since the parties separated.
In the written submissions put forward on behalf of the Wife, reference is made to the Husband having the benefit of the $100,000 in cash inherited by him from the estate of his late father as a factor the Court should consider under section 75(2). This argument is flawed given this amount forms part of the property pool for division between the parties.
The orders proposed by this court in relation to parenting will see [X] and [Y] living in the Wife’s primary care and spending significant and substantial time with the Father.
The Husband’s future earning capacity is completely uncertain. Given the Wife’s qualifications and previous work history, she has the capacity to earn a greater income than that of the Husband going forward. This is more so as she is nearly 10 years younger than him.
However, the corollary of the Husband’s uncertain earnings mean his capacity to pay child support to meet [X] and [Y]’s future financial needs is also unknown. It is very likely that it will be the Wife who will be the party responsible for their expenses including the cost of their education and extracurricular activities.
It is for this reason I am of the view this should be an adjustment in the Wife’s favour for s 75(2) factors and that this adjustment should be 2.5%.
Who should retain the former matrimonial home
Both parties are seeking to retain the former matrimonial home.
The Husband seeks to retain the entirety of the farming properties including the former matrimonial home as he wants to continue to run the farming enterprise that was undertaken by the parties’ partnership during the relationship as a means of supporting himself, [X] and [Y] going forward.
It is submitted on the Husband’s behalf that in circumstances where the majority of that property was inherited by him from his father, such that he describes the holdings as “the family property”, he should be afforded the opportunity to retain it.
The Husband argues that it will not be financially or practically viable to conduct the farming business if portions of that property are subdivided and transferred to the Wife.
The Husband further submits that any division of the various blocks as proposed by the Wife will create real difficulties for both of them as neither will be able to access the blocks retained by them under the Wife’s proposal using the existing access roads and rights of way.
When the Husband received the Wife’s proposal that orders be made for part of ‘Property D’ and ‘Property E’ to be transferred to her, the Husband instructed his solicitors to engage Mr CC, surveyor, to prepare a report. Their letter of instruction to Mr CC reads:
“1. We are instructed that all four properties have been farmed as one property in the past and accordingly, our client is unsure as to whether the existing fences between the properties are on the correct boundaries. You will see that we have marked in black on the enclosed map, the specific boundaries that need to be investigated in this regard.
2. As stated above, we are unsure as to whether all of the current vehicular access between the properties are considered legal access. Accordingly, if the Court orders that the properties are to be divided between the parties, we seek your estimate of fees for determining:
a. whether the current vehicular access is considered legal access; and
b. if the current vehicular access is not considered legal access, your fees and the process to build on the “paper roads” through the properties and if this is even possible having regard to the terrain where the “paper roads” are located. Alternatively, we seek your estimate of fess and the process for attempting to obtain easements over the current tracks in use;
In this regard, we are instructed as follows:
a. the current vehicular access to ‘Property D’ from … Road is through the property “Property P”; and
b. the current vehicular access to the right-hand side of ‘Property Q’ is only through ‘Property D’ and ‘Property E’.”
In the affidavit of Mr CC sworn 10 August 2018, he annexes correspondence forwarded by him to the Husband’s solicitors addressing specifically the matters raised by them.
In his correspondence dated 7 August 2018 Mr CC states as follows:
“- Should the holding be partitioned into parts such that Property P and Property Q are held in different ownership to Property D and Property E, to allow for legal physical access, I recommend that right of carriageways are registered on the relevant titles. I further recommend that the most cost effective approach to the creation of the right of carriageways would be to define the location of the right of carriageway by “Right of Carriageway over Existing Track in Use”.
I estimate my fee for the field work and preparation of the plan via this method would be in the order of $3,500.00.
Further fees would be incurred by a solicitor for the creation of the 88b instrument or transfer documents to accompany my plan, the NSW Land Registry Service for the registration of the document and mortgagees for document sign if appurtenant.
I base this opinion on the assumption that minimal to no civil works or consultation with road authorities such as council would be required to allow for each site to be legally accessed by this approach.
- With regards to the identification of the boundaries that will separate the proposed holdings, the majority of the said boundaries are fence.
The exception to this is the east/west boundary that separates ‘Property D’ from ‘Property Q’ where only remains of very old fencing are apparent.
I would recommend the following
- To carry out a field survey to locate the existing, easily accessible fencing, for the confirmation that the fencing that acts as partition between the holdings represents the existing boundary location.
- Carry out the survey to define and mark by survey pegs the approx. 1.5km east/west boundary line that separates Property D from Property Q.
I Estimate my fee for these surveys will be in the order of $13,000.00.”
In response to the affidavit of Mr CC the Wife filed a further affidavit sworn 24 August 2018. In paragraphs [11] to [13] and [16] to [19] the Wife sets out why she would oppose a common road being used by both parties and her belief that it would be better for there to be an adjustment to the boundary on ‘Property P’ that would provide her with her own access to ‘Property D’ if orders were made in the terms sought by her. The Wife deposes:
“11. I am seeking an Order to retain part of Property D property and Property E (with that part of Property D being Lots … and … and Property E is Lots … and …).
12. If the Court makes the orders that I am seeking regarding Lot …, there will need to be a boundary adjustment of Property P along the boundary of the neighbours … property (being Lot … of …) and Property P (being Lot …) so that I can retain that Westerly area upon which access to Property D is situated as part of Lot … and Mr Stinson and I will not have to utilise the same access, which is particularly important to me, to avoid conflict.
13. Further, currently, as far as I understand it, Lot … (being Property D home block) does not have any legal access over Property P, so this is particularly critical and if such an order is not made, and I retain Property D home block, I will in effect be landlocked.
…
16. As far as I understand it, [the Husband’s] proposal is that he wants to access Lot … of Property D via Lots … (that is, via Property D house block).
17. To access Lot … there is farm machinery and vehicle access through the neighbouring … Lots … to Lot … (part of Property D).
18. In my view, it is completely unnecessary for Mr Stinson to use Lot … to access Lot … as alternate access is available. During the marriage, Mr Stinson constructed a track (or improved an existing track) in what I believe to be the North West of Lots … and …, for the purpose of not having to go via Property D home lot to access Lot …. Mr Stinson’s machinery was used to do this. The track is accessible from the … Road area, through Lots … and … (being the neighbours).
19. The main issue for me is that Mr Stinson be prevented from being anywhere near the house lot (Lot …) and that he only utilise the North West boundary of Lot … and Lot ….”
The Wife’s proposal is impractical on many levels. Whilst she speaks of wanting to run cattle on the property retained by her, the Wife has never run cattle. It is common ground that the Husband has always been responsible for their cattle business. When giving her vive voce evidence the Wife spoke of being able to engage contractors to do this work. The financial viability of such a proposal is highly questionable, especially given the partnership has not made a profit to date.
What is clear is that dividing the property so that some of the blocks are held by the Wife and some of the blocks are held by the Husband would result in neither of the parties being able to pursue any form of financially viable farming endeavour.
It is also apparent that the division proposed by the Wife would involve the parties having to undertake considerable road construction at some cost in order to secure independent access to those properties that they would remain holding.
Given all these factors, I am of the view that the Husband should be afforded the opportunity to retain all of the farming properties.
Just and Equitable
An adjustment in the Husband’s favour of 7.5% would result in the Husband receiving $652,765.65 more of the pool, that is, 15% more of the pool than that of the Wife.
If the Husband retains the whole of the farming properties, the partnership plant equipment and cattle, the bad debts of Business G and his remaining Town A properties together with the liabilities related thereto, he would receive a total of $2,995,673.62 of the parties’ assets.
If the Wife retains her Property J property, all the monies currently held in trust for the parties, together with her car and assets listed in the pool that belong to her together with the liabilities relating thereto, she would receive assets of $1,356,097.41. 42.5% of the pool is $1,849,502.69. Therefore the Husband would need to pay to the Wife $493,405.28 in order to achieve a 57.5/42.5% division of the parties’ assets.
This can be achieved by the Husband transferring to the Wife his Town A properties which she could retain as investment properties or by those properties being sold and the Wife retaining the net proceeds of sale. The Husband could also pay the Wife part or all of the cash he is to receive from the residual estate of his late father. He would then have to increase his borrowings over the farm properties from the current level of $148,195 by approximately $115,000.00. This should not be beyond the Husband’s borrowing capacity given he is to retain real estate with a value in excess of $2,000,000.
The Wife will retain her Property J property and sufficient cash to discharge the mortgages on the Property J property if she so chooses, to purchase a residence for herself, [X] and [Y] in appropriate geographical proximity to [X] and [Y]’s school and have enough remaining to support herself whilst she makes a decision as to how she will earn an income to support herself going forward.
In his closings on behalf of the Husband, Counsel sought orders that if the Court orders enable the Husband to retain the farming properties including the former matrimonial home, the Husband be given 12 months in which to raise the funds to pay the Wife the entirety of her property settlement. The Husband’s proposal is unacceptable. The Wife must be able to move on with her life, especially as she will be required to find a home for herself, [X] and [Y].
The Wife will therefore be given 30 days to nominate whether she wishes to retain Property C and Property B or whether they are to be sold. The Husband will be given 90 days in which to raise the additional monies required by him to pay out the Wife (“the payment date”). If the Husband is unable to make the additional payment to the Wife by the payment date, he can nominate which of the farming blocks is to be sold to pay the Wife out. Penalty interest pursuant to the Federal Circuit Court Rules 2001 will be payable on any amounts outstanding from the payment date. It is not fair to the Wife that she be required to wait for the monies she is entitled to under the proposed orders without recompense, especially in circumstances where the Husband has sought orders to retain all the farming lands including ‘Property D’ on which the former matrimonial home is built.
The Court is satisfied this outcome enables both parties to move on with their lives and is a just and equitable outcome for both.
I certify that the preceding two hundred and ninety three (293) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 12 April 2019
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Injunction
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Remedies
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Jurisdiction
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