Taffey and Albert
[2011] FMCAfam 1437
•21 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAFFEY & ALBERT | [2011] FMCAfam 1437 |
| FAMILY LAW – Final orders relating to property adjustment and parental responsibility – wastage argument. |
| Family Law Act 1975, ss.78, 79, 75(2), 4, 60CC, 60CA, 61DA, 65DAA, 61B, 65DAC Evidence Act 1995, ss.140, 144 |
| Weir & Weir [1993] FLC 92 – 338 Black & Kelner [1992] FLC 92 – 287 Jones & Dunkell (1959) 101 CLR 298 Ferraro & Ferraro (1993) FLC 92 – 335 Hickey [2003] FamCA 395 Omacini & Omacini [2005] FamCA 707 Burgoyne & Burgoyne (1978) FLC 90 – 467 Pierce & Pierce [1998] FamCA 74 SJS & NS (2005) FLC 93 – 214 Crampton [2006] FamCA 528 Derek [2005] FamCA 356 De Angelias (2003) FLC 93 – 133 AB & GB (No.2) [2005] FMCAfam 402 Clauson (1995) FLC 92 – 595 Coghlan [2005] FamCA 429 Goode & Goode (2006) FLC 93 – 286 Marvel & Marvel [2010] FamCAFC 101 Dylan & Dylan [2007] FamCA 842 Pitken & Hendry [2008] FamCA 186 |
| Applicant: | MS TAFFEY |
| Respondent: | MR ALBERT |
| File Number: | PAC 4115 of 2010 |
| Judgment of: | Harman FM |
| Hearing dates: | 15 – 16 November 2011 |
| Date of Last Submission: | 16 November 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 21 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richards |
| Solicitors for the Applicant: | Coleman Greig Lawyers |
| Counsel for the Respondent: | Ms Judge |
| Solicitors for the Respondent: | Lamrocks Solicitors & Attorneys |
ORDERS
The parties Mr Albert (the father) and Ms Taffey (the mother) shall have equal shared parental responsibility for their children X born (omitted) 2002 and Y born (omitted) 2004.
Pursuant to s.79 of the Family Law Act 1975 and by way of order adjusting interests in property between the parties:
(a)The husband shall, no later than close of business 20 February, 2012, shall pay to the wife a sum of $100,996.
(b)The husband shall forthwith and within 72 hours of these orders do all things, sign all documents and give all consents and authorities necessary to transfer to the wife and into the sole name of the wife the ANZ Bank mortgage offset account BSB (omitted) account number (omitted) and all funds held in that account (and to be a sum of not less than $377,828 and in the event that the balance of that account has reduced below that sum then the husband shall increase the payment to be made by him pursuant to order 2(a) hereof so that the total cash received by the wife pursuant to orders 2(a) and (b) hereof is an amount of $478,824).
(c)That upon payment by the husband to the wife on or before 20 February, 2012 of the sum of $100,996 (or such greater sum as is required to be paid per order 2(b) hereof) that the wife shall then forthwith and simultaneous with payment do all things, sign all documents and give all consents and authorities necessary to transfer to the husband the whole of her right, title and interest in the property known as and situate at Property R, in the State of New South Wales being all that parcel contained in certificate of title folio identifier (omitted)
(d)That in the event that the husband shall fail, neglect or refuse to pay the sum of $100,996(or such greater sum as is required to be paid per order 2(b) hereof) to the wife (in full) on or before close of business 20 February 2012 or comply with his obligations pursuant to order 2(b) hereof within the time provided then forthwith and thereafter each of the parties shall do all things, sign all documents and give all consents and authorities necessary to list for sale and sell the property by private treaty at a price agreed between the parties and utilising a solicitor or conveyancer or agent/s agreed between the parties and in default of agreement with respect to same the provisions of order 3 hereof shall apply.
(e)Upon completion of any sale of the Property R property in accordance with these orders that the net proceeds of sale then resulting should be distributed as follows and in the following priority:
(i)In payment of all sales costs with respect to the sale including solicitor/conveyancing fees and agents commission.
(ii)In payment out of the mortgage encumbering the property such that the mortgage is discharged in full.
(iii)As to the net balance then remaining to be divided as to 25% to the wife and as to the remaining 75% to the husband.
In the event that the parties are unable to agree as to a listing agent, solicitor or conveyancer or listing price then the following shall apply:
(a)In the event that the parties are unable to agree on a listing agent, then each party shall be authorised to select one agent to act with respect to the sale and, upon such nomination or election being made known, both parties will do all things, cooperate and give all consents and authorities necessary to enable each of those agents to advertise the property for sale and conduct inspections.
(b)In the event that the parties are unable to agree on a solicitor or conveyancer to act on sale, then either party may request in writing that the President, at the time, of the Law Society of New South Wales appoint a solicitor or conveyancer and, upon such nomination being made by the President or their nominee, then each party shall do all things, sign all documents and given all consents and authorities necessary to enable the person so appointed to discharge their role.
(c)In the event of any disagreement as to listing price, then the parties or one of them shall request the agent or agents who are instructed to nominate a realistic sale price by a realistic vendor for the property (and in the event that two agents are engaged, a mean of such advices shall be used) and upon such advice being given the property shall be offered for sale at 105% of that estimate and the parties will accept any offer for sale that is equal to or in excess of 95% of the listing price.
That pursuant to s.78 Family Law Act 1975 that each of the parties shall be and are hereby declared, as against the other, to be the sole and absolute owner of:
(a)All shares held by each party;
(b)All motor vehicles in the possession of that party;
(c)All monies in the possession custody or control of each party;
(d)All contributions to or benefits or entitlements arising from membership of any fund of superannuation;
(e)All chattels, personalty and furniture and furnishings held by each party.
In the event that either party shall fail, neglect or refuse to sign any deed, document or instrument required by or to give effect to these orders then the Registrar of the Federal Magistrates Court Parramatta shall be and is hereby authorised, directed and empowered to sign such deed, document or instrument in the name of the defaulting party (same to be proved by production of an affidavit by the party requesting signature) and to thereafter do all things and acts necessary to give validity and operation to same.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Taffey & Albert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4115 of 2010
| MS TAFFEY |
Applicant
And
| MR ALBERT |
Respondent
REASONS FOR JUDGMENT
These are proceedings with respect to competing applications between the applicant wife MS TAFFEY and the respondent MR ALBERT.
The proceedings as they have transpired, have related substantially to issues of property adjustment. When the matter was listed for hearing and, indeed, when called on for day one of the hearing and evidence commenced issues were at large also with respect to parenting of the two children of the marriage X born (omitted) 2002 (presently aged 9 years) and Y born (omitted) 2004 (presently aged 7 years).
To the great credit of the parties negotiations were entered into over the lunch adjournment on day one of the hearing and at that time Ms Taffey, as the applicant, had commenced cross examination. As a consequence of those negotiations agreement was reached with respect to all parenting issues save the allocation of parental responsibility.
With the consent of the parties and notwithstanding the issue of parental responsibility remains to be determined final parenting orders were made which concluded that element of controversy between these parents. Those orders provide for the children to live primarily with their mother (as they have done since separation) and to spend time with their father each alternate weekend from Friday afternoon until Sunday afternoon together with a period each Wednesday evening and periods through school holidays and special events.
The property adjustment aspect of the proceedings has not been as amenable to resolution and it has run to conclusion before me with evidence, cross examination and submissions.
The Parties Proposals
As has become common place in litigation before this Court the position of the parties and each of them at trial was somewhat different to the relief sought in the parties’ respective application and response. Ultimately, each party’s proposal was set out in their case outline and further amended and elaborated upon during submissions.
The wife, for her part, ultimately submitted that a division of the overall asset pool as to 50-55% in her favour should occur. This was based upon a detailed and careful summation as to findings of fact that are suggested as available to the Court and the application of Part VIII to those facts and, in particular, vexed issues of assessment of contribution as between these parties.
Mr Albert, for his part, ultimately submitted that orders should be made which would result in his receiving 65-75% of the overall pool of property. This position was, again, put on a careful discussion of issues relating to assessment of contribution and, to a lesser extent, adjustments for s.75(2) factors.
By the conclusion of the trial and as a consequence of negotiations between Counsel on instructions from their respective clients and concessions made by the parties during their cross examination there remained few issues as to the pool of property. However, a small number of issues remained which I will deal with in due course. Suffice to say, however, these do not have any significant impact, by and large, upon either the composition of the asset pool or the determination of these proceedings.
The Parties Evidence
Each party’s case outline document set out the material in their case which was to be read. In the case of the wife this comprised:
a)an amended application initiating proceedings filed 25 October 2010
b)an application in a case (seeking orders regarding payment of a mortgage over the substantial parcel of real estate owned by the parties and pending its sale or transfer) filed 2 August 2011
c)an affidavit of the wife Ms Taffey filed 4 October 2011
d)a further affidavit of the wife Ms Taffey filed 11 November 2011
e)a financial statement of the wife filed 2 August 2011
In Mr Albert’s case the following material was identified and read, namely:
a)an amended response to initiating application filed 1 April 2011
b)an affidavit of the husband Mr Albert filed 3 November 2011
c)a financial statement of the husband filed 14 October 2010
In addition to the affidavit material identified above a joint experts report has also been prepared with respect to the major asset of the parties, being a property at Property R, .
That valuation report by (omitted) was dated 3 December 2010 and was accepted by both parties thus ending controversy as to the value of that property.
During the course of the hearing a number of documents were tendered by each party in their respective case. In the case of the wife seven exhibits came into evidence and in the case of the husband eight.
At the outset of the hearing there remained controversy only with respect to the valuation of a campervan and a compromise figure was arrived at by the parties prior to cross examination commencing.
Issue also arose with respect to:
a)Whether a personal loan in the name of the husband ought to be included as a relevant liability. The husband’s cross examination clarified that this loan was obtained by him following separation and the husband’s evidence as to the purpose or expenditure of funds thus obtained was wholly unsatisfactory, vague and unhelpful. On this basis and as will be discussed later I have determined to exclude that liability from consideration.
b)Issue also arose as to two additional liabilities in the husband’s name being:
i)A St George Bank credit card debt alleged in the husband’s financial statement (albeit sworn some 11 months prior to the hearing) with an outstanding balance of $3200. During cross examination the husband clarified that this debt has been paid in full from income and accordingly it is not included.
ii)A loan obtained by the husband from his sister. The husband’s evidence would appear to suggest if not confirm this also came into being post separation. The loan presently stands in the sum of $11,000. The husband has indicated that these funds are held by his solicitor on account for legal fees for the hearing. On that basis and to avoid any further dispute as to add back of expended legal fees I do not propose to include that debt.
c)A further and far more substantial issue as to composition of the pool of property or, more correctly, the notional add back of funds alleged to have been expended by the husband in gambling and other activities is raised. It is asserted in the wife’s case that not less than $165,000 would be added back as funds which the husband has gambled. During submissions the position was expanded to also seek to include that figure to accommodate expenditure on the purchase of marijuana by the husband for the majority of the relationship.
The husband for his part conceded that he had gambled. He indicated at paragraph 35 of his affidavit “I would estimate that I have spent approximately $100,000 on gambling over the two years from September 2007 until September 2009”. It is note worthy that this would represent, during this period, a sum of approximately $1,000 per week.
Cross examination of the husband on this issue also related to periods before and after September 2007/2009 and I will return to that evidence shortly.
The parties do not have a significant factual dispute between them in most respects. Most aspects of the past history and chronology of the relationship are agreed. There are a limited number of factual issues in dispute which I will turn to in due course. However, I now set out an outline of the agreed chronology of events as regards the relationship of these parties and as follows:
| (omitted) 1972 | The wife Ms Taffey is born. The wife is presently aged 39 years. |
| (omitted) 1973 | The husband Mr Albert is born. The husband is presently aged 38 years. |
| 1997 | The parties meet. It had been alleged by Ms Taffey in her material that the relationship between the parties and their cohabitation had commenced at this time. It subsequently became clear in cross examination that Ms Taffey, in fact, alleged from shortly after first meeting - husband and wife spent periods of each week together and slept at each other’s homes. I am satisfied on this basis that the parties had commenced a relationship although not necessarily cohabiting on a full time basis at this time. In any event nothing of dramatic significance turns upon any finding as to whether the parties were living together in a de facto relationship as defined within s.4AA of the Family Law Act 1975 at that time or otherwise. |
| July 1999 | The agreed date upon which the parties commenced to cohabit at a property at Property C, which property had been purchased by them at that time and in their joint names. |
| (omitted) 2001 | The parties married. |
| (omitted) 2002 | The wife commences a period of maternity leave shortly prior to the birth of the first child of the relationship. |
| (omitted) 2002 | The first child of the relationship, X, is born. |
| (omitted) 2002 – 2003 | At the time of X’s birth a gift was given to the parties by the husband’s father. There is controversy between the parties as to whether this was an amount of $100,000 or $150,000 and whether it was received in July 2002 or thereafter and in 2003. There is no dispute between the parties that these funds, in whatever amount, were applied in direct reduction of the mortgage over the Property C home. |
| 2003 | Husband undertakes a period of outpatient rehabilitation treatment through (omitted) Hospital to manage his addiction to marijuana. |
| 2003 | Husband subjected to random drug testing by his then employer and tests positive for marijuana. As a consequence of this the husband is placed on a period of 6 months probation at work which precludes him from participating in overtime which he had, till that date, participated in substantially. |
| 2003 | Towards the end of the husband’s probation the husband, following another random drug test, tests positive to cocaine. This is denied by the husband but prior to any action being taken the husband resigns from his employment and commences fresh employment. |
| (omitted) 2003 | The wife returns to full time employment with the (omitted). |
| (omitted) 2004 | The wife resigns from employment with the (omitted) shortly prior to the birth of the second child of the relationship. |
| (omitted) 2004 | The second child of the relationship is born. |
| April 2006 – May 2007 | Husband receives funds by way of inheritance from the estate of his father and grandmother. It was ultimately conceded by the wife that sums totalling $583,228.39 are received (which includes an amount of $239,000 representing the proceeds of sale of the property at Property U in which the husband held a one half interest and from which the husband received the remaining one half interest by way of transmission notice). |
| 2006 – April 2009 | From the funds received by the husband a (model omitted) Boat is purchased for approximately $24,000 and a Toyota (model omitted) motor vehicle for $45,000. |
| June 2006 | Wife commences part time employment as an (omitted) for the (omitted). |
| September 2007 | The parties purchase their current matrimonial home at Property R, for a sum of $667,000. A mortgage of $500,000 is obtained from the ANZ Bank and secured over the property. The parties establish a joint ANZ offset account connected to the mortgage encumbering the Property R property and a sum of $416,300.42 is transferred from the monies which had been received by the husband to establish this account. The non mortgage funds together with stamp duty and purchaser’s costs to enable acquisition of the property were derived from the husband’s inheritance funds and totalled approximately $193,000. |
| January 2009 | Wife transfers her employment to (omitted) being the children’s then school. |
| April 2009 | The parties sell the Property C property for a sum of $460,000. The net proceeds of sale of this property are deposited into the ANZ Bank joint offset account. At the time of sale of the Property C property the parties moved together with their children to the home of the wife’s parents at (omitted) whilst demolition and reconstruction works are to be undertaken. |
| August 2009 | The wife commences full time employment. The wife alleges and it is accepted that she did so confronts the husband regarding the gambling of funds from their joint account. |
| 27 August 2009 | The parties separate on a final basis. |
| December 2009/ January 2010 | The children begin to spend regular time with their father not having done so between separation and that time. |
| 7 September 2010 | AVO made by the Parramatta Local Court by consent and without admissions and posing prohibitions upon the husband. |
| 8 December 2010 | Present child support assessment issues requiring payments of child support by the husband to the wife of $782 per month. |
During cross examination it was otherwise conceded by the husband that he had, from the commencement of the relationship and until 2007, been addicted to marijuana. A concession with respect to that specific phrase was sought and obtained from the husband.
Issues with respect to the husband’s marijuana use both presently and previously had some relevance both as to financial issues and the remaining parenting issue between these parties being the allocation of parental responsibility.
To the extent that it is relevant with respect to the parenting issue a number of further facts are clearly established by concession or from the evidence and as follows:
a)Throughout the relationship it was asserted by the husband in his evidence that he had been a “hard worker” and had by and large (save for the period of six months probation following a positive drug testing at work) engaged in significant hours of employment of 40 – 70 hours per week. This was evidence given by the husband to support his financial contributions to the relationship but must, of necessity, also suggest the husband was not present and available at the home to participate in home making and parenting to the extent that he asserts.
b)Immediately prior to, at or following separation the husband resumes smoking marijuana and continues to do so albeit his concession in this regard would suggest that he was smoking at a far lower rate than previously.
c)It was put to the husband that he expended $100 - $150 per week with respect to his marijuana addiction in 2004. This proposition was obtained from material produced on subpoena and tendered. The husband denied this and asserted that his expenditure was never that high. However, to the extent that the documents produced are independent third party documents based upon the husband’s own concessions and reporting of each I am inclined to accept them and find that the husband had been expending that amount (i.e. $100 - $150 per week) for the purchase and use of marijuana from the commencement of the relationship in 1997 until at least 2007.
d)In cross examination of the husband his level of expenditure with respect to gambling as deposed to in his own affidavit material (being approximately $1,000 a week during a two year period) was conceded. The husband was also questioned as to his patterns of gambling and his evidence, which I am inclined to accept, was to the affect that his gambling occurred outside of work hours, this would further erode his availability to have been at home with and participate in the children’s lives as a parent. There is no specific evidence as to the amount of time engaged by the husband on a weekly basis on gambling but one could imagine that to expend $1,000 a week in playing poker machines (the husband’s preferred method of gambling) would take some little time. That is even without adding temporary or occasional wins on the husband’s behalf and the reinvestment of those funds.
e)The husband conceded with respect to his marijuana use that during periods when he was using heavily and, as conceded by him “addicted”, his capacity to interact with and parent the children and thus be emotionally available to form an attachment to the children must have been compromised.
Allegations as to violence and abusive and coercive behaviour were raised by the wife in her material. As evidence of this the wife referred to the apprehended domestic violence proceedings which had been commenced on her behalf by the police. The evidence with respect to that complaint is contained in paragraph 36 of the wife’s affidavit 20 July 2011 and in the following terms:
“While I was not at home later that evening I am aware that Mr Albert attended my parents home while I was out and when my step father Mr M answered the door Mr Albert had pushed passed him. I am aware that a complaint was made to (omitted) Police about Mr Albert’s actions and the police attended the home the following day on 25 August 2010 and granted an interim apprehended domestic violence order against Mr Albert and for my protection at the time.”
Prior to these events it is suggested (and whilst the allegations in this regard may be situational and directly correlating to separation of the parties they are, nonetheless and to the extent that they are accepted or conceded, explicable but inappropriate behaviour) the husband is alleged to have made a threat “I’m going to kill you” on or about 23 August 2010. This threat would appear to correspond with the day or very close to it that the wife’s property adjustment application was served. A number of other broad allegations were raised in the wife’s material but with little detail. That is not a criticism of the wife as she had, when cross examined regarding this, became visibly shaken and upset and had indicated that she had not raised the matters with her lawyer or put it in her material as she simply did not like to revisit the events.
This creates some what of a conundrum for the Court. Whilst there is significant criticism of the Court and the legal profession in general for the standard of evidence with respect to proof of allegations of family violence in this case I am satisfied that perfectly plausible explanation for the absence of that material has been provided. However, that does not change the fact that evidence of a probative nature (or any) is not before the Court.
The evidence would also appear to suggest and it is conceded by both parties that communication between them is less than ideal. However, notwithstanding this somewhat negative supposition, the parties have not had cause to need to negotiate any significant major issues/decisions (as defined in section 4 of the Act) since separation other than to put into place parenting arrangements which would appear to have been done expeditiously and effectively (and those arrangements have, by and large, been followed) and a change of the children’s school in mid 2011. This change of school arose from the wife’s transfer of employment to the (omitted) Public School which is far more proximate to her present residence with her parents than to the matrimonial home at Property R (a school near which the children previously attended and with significant travel undertaken by the wife).
The wife’s evidence with respect to this change of school is that she did not consult the husband but did advise him and in the following exchange set out in paragraph 41:
“The children were also enrolled to attend (omitted) Public School commencing 18 July 2011 as a result of the transfer of my employment. On or about 28 June 2011 I telephoned Mr Albert and said to him words to the affect of “I’ve got a new job at (omitted) . I want to move the kids over to the new school. It’s an exciting time for all of us, it will change their lives not sitting in the car all the time. I’m really excited”. Mr Albert replied with words to the effect “that’s good”.
Whilst it might be suggested that communication is less than fulsome between these parents it would not appear that these parents are incapable of making decisions between themselves even though, to a large and significant extent, it would appear that since the children’s birth the decisions have largely been taken by Ms Taffey and with the support or acquiescence of Mr Albert. That may have some relevance as a ground for consideration under s. 60CC(4) of the Act but would not otherwise significantly address the matters to which I must turn my attention.
In dealing specifically with the areas of controversy between the parties on their evidence these would appear to largely relate, as factual issues, to:
a)The gift received by the husband from his father and the amount of that gift (as indicated there is some slight dispute as to the timing of the gift (being July 2002 or an unspecified time in 2003)). There is no issue such funds as were received were applied to reduction of the Property C mortgage.
b)The extent of the husband’s marijuana use and expenditure on that habit.
c)The extent of expenditure by the husband and wastage of funds produced from his pre marriage asset (being a one half interest in the property at Property U owned jointly with his father) and funds received from inheritances.
Credit
The parties in their case have each criticised the other regarding the frankness and candour of their evidence. Criticisms of the mother had been more significantly raised regarding parenting issues and a significant portion of the wife’s cross examination related to these.
Criticism of the husband more profoundly related to the financial issues in dispute between these parties. A number of specific criticisms by reference to authorities such as Weir & Weir [1993] FLC 92 – 338 and Black & Kellner [1992] FLC 92 – 287 arose as to the husband’s disclosure or lack thereof.
The husband had not produced, whether as a consequence of any request for production by the wife’s attorney’s (exhibit W7 went to that issue) or to support his own case at trial, any document relating to any bank account or the receipt of any funds by him other than by way of inheritance. The documents produced in that regard (i.e. as to the inheritance) would appear, from portions of the correspondence comprising exhibit W7, to have been provided by the husband’s attorneys from their file albeit on instructions rather than by the husband.
The husband produced a number of documents in relation to the inheritances being a copy of a will, a grant of probate, correspondence regarding the distribution of funds received and the like. However, telling documents which were not produced by the husband and which must have some significant impact upon findings of credit include:
a)Any document relating to or evidencing the deposit by the husband of funds in reduction of the Property C mortgage (which would have corroborated the quantum of the gift from his father). Indeed, during cross examination of the wife on this issue I had put to Counsel for the husband that surely the tender of a bank statement demonstrating the deposit of the funds would end the issue. Notwithstanding this no such document was forthcoming.
b)Copies of any bank statements. This is particularly problematic as until the offset account was open the husband had held all monies received by way of inheritance or sale of real estate in an account in his sole name. Not a single document was produced regarding same.
The difficulty in the husband producing no documents evidencing the existence and operation of the account in his sole name is that a significant sum of money has or may have been dissipated from that account prior to the opening of the offset account.
The husband has conducted his case on the basis of conceding an amount of approximately $100,000 in gambling in a two year period. However, the husband has produced no document and decries ever having held any document which would enable him to accurately calculate or estimate that amount and which would allow him to defend the allegation and imputation by the wife that he had expended significantly greater funds from the inheritance monies prior to the purchase of the Property R property and the transfer of funds into the mortgage offset account. If the husband had thought to produce any such documents they would have had the potential to clarify the issue.
To the extent that the husband has not produced such documents I am satisfied that I should draw a Jones & Dunkel (1959) 101 CLR 298 inference and being that the husband has not produced those documents as they would not aide his case and would not assist in corroborating his allegation and would, in all probability, corroborate the wife’s version.
It beggars belief to suggest that a party to litigation which has been before the Court for some 14 months prior to hearing would not have made some attempt during the proceedings (let alone in accordance with pre filing procedures) to obtain and provide relevant documents and documents which would go to and assist in proving or disproving allegations which have impeded resolution in this matter. That is all the more so when the husband would, I have no doubt, have been made fully aware of his obligation to disclose, the nature and meaning of the phrase “all documents in his possession, custody or control” and the ability to attend at a financial institution or other agency and request a copy of such documents as he did not already hold .
Criticism was also made of the wife in submissions that she had not sought to issue a subpoena for the production of those documents. However, I am entirely satisfied from the material produced by tender and exhibited in the wife’s case that significant attempts and requests were made to obtain the husband’s consent in providing documents within his possession, custody or control (including if need be by attending the bank and obtaining copies). That the husband has failed to do so with respect to documents that might have assisted his case (e.g. in establishing the quantum of the gift received from his father and paid off the Property C mortgage) or in assisting to disprove the wife’s allegations as regards the expenditure of funds by gambling or otherwise prior to the creation of the offset account has done the husband no favours.
The husband’s evidence was otherwise somewhat glib and perfunctory. The husband was minded, in response to many questions from Counsel for the wife, to respond in the following fashion:
a)When a proposition was be put to the husband and his agreement or otherwise to that proposition sought he was inclined to respond “well that’s what you say mate. I know differently”.
b)On other occasions when propositions put to the husband or questions put he was inclined to answer to the affect “you’re the one telling the story why don’t you tell me”.
c)The husband was specifically questioned as to his understanding of the impact of his marijuana use upon his memory and the state of his memory generally. The husband suggested “I think I’ve got a good memory”. Notwithstanding this assertion the husband was unable to recall any clear or specific detail of any relevant transaction for the purpose of his case.
d)The husband was somewhat disingenuous in dealing with and responding to matters put to him regarding the extent of his gambling by responding to the affect “yeah I gambled. That’s what I like to do with my money. She spent it on hairdressers and stuff. I asked her to stop and reign her spending in”. No document was produced which could possibly corroborate that assertion by the husband and no concession is made by the wife.
The wife, in contradistinction, was in a position to tender significant documents which corroborated her allegations of fact. This included extensive bank statements which she had studied and she was in a position to specifically direct the Court’s attention to material supporting her propositions.
An aspect of the husband’s evidence which has also troubled me related to the husband’s occupation of the matrimonial home at Property R since separation and payment of the mortgage and other expenses during that period. Clearly issue has arisen regarding payment of the mortgage and as demonstrated by the application in a case and affidavit filed by the wife seeking orders as to payment of those expenses by the husband pending sale or transfer.
The husband asserted (both through his financial statement and whilst in the witness box) that he had attended to payment of all mortgage instalments since separation. He subsequently conceded that the mortgage was, in fact, and until “late in the day” met from the offset account and, accordingly, was met by drawing on the parties’ joint funds.
The husband had also sought to adopt the offset account as being entirely “my money” on the basis that it was asserted by him that the funds in the account were derived solely from his inheritance and the like. However, during cross examination Mr Albert conceded that other funds had been paid into the joint account including the income earned by both parties throughout the relationship and during the periods of their respective employment. On this basis it would appear that the diminution of the account alleged by Ms Taffey to arise from Mr Albert’s gambling expenditure may have been significantly greater than initially deposed. This is particularly so as on a simplistic basis the account, from the time of its opening to the time of its ultimate freezing (at or about the time of separation) had been reduced by something in the order of $100,000. This may be an explanation as to the amount that the husband asserts he gambled. However, throughout this period both parties also contributed the entirety of their income into that account and, accordingly, additional expenditure has, in all probability, occurred.
The above reference to specific portions of the evidence should, I would hope, make clear that to the extent that there is dispute between the evidence of the parties I am inclined to accept the wife’s as more credible, more accurate and more likely to be frank.
As a corollary of this I am satisfied that wherever there is dispute as to evidence between the husband and the wife that I should accept the evidence of the wife as being more frank, candid and accurate.
The husband’s lack of disclosure, his failure and inability to produce any document requested of him which would have assisted in narrowing issues in the case, identify contributions alleged by him and answering allegations raised by the wife is such that I am inclined, with respect to the husband’s evidence, to not accept it save where there is corroboration from an independent source or concession by the wife.
On this basis I am inclined to accept that the amount received by way of gift from the husband’s father and deposited in reduction to the Property C mortgage was a sum of $100,000.
It is and has, at all times since these proceedings have been on foot, been open to the husband to obtain from the bank the one page of statement relating to the transaction which would clearly show a credit to the mortgage account. The husband has failed to do so and in those circumstances and by reference both to the findings of credit as above and Jones & Dunkel I am inclined to accept the wife’s evidence.
Marijuana Use
The husband in his evidence regarding marijuana use was, I am satisfied, doing his best to be truthful. Whether, as is asserted by Counsel for Ms Taffey and supported by general information available in the public sector (and admissible pursuant to s.144 of the Evidence Act 1995) and tendered as evidence in the wife’s case the husband’s memory has been affected by chronic and long standing marijuana use or not I simply do not know. There is no medical evidence to draw the connection between the material tendered (quite properly so) and the husband’s condition and presentation. The husband denies the marijuana use has had any affect on his memory.
One potential difficulty for the husband is that if I accept his assertion that marijuana use has not affected his memory and, indeed, as asserted by him he has a very good memory then I am perplexed to why the husband has been unable to recall, with any precision, detail or accuracy, so many matters that have been put to him in these proceedings. Put bluntly the husband cannot have it both ways. He either has an excellent memory in which case I could not find other than he has been mischievous and unhelpful in failing to recall matters which he clearly should, or perhaps of far more assistance to the husband and perhaps kinder to him in the context of the overall evidence, I would be satisfied that the husband is somewhat inflated in his view of his own memory and that indeed his memory is poor particularly in relation to financial transactions and the details of same.
The husband conceded expenditure of $80 - $100 per week with respect to marijuana usage. However, I am struck that the documents put to the husband suggest that clearly in March and April of 2004 he had disclosed to his own doctor that he was using marijuana to the extent of spending $100 - $150 per week and using marijuana on a daily basis.
Subsequent tendered records suggest that following separation and the husband’s resumption of use of marijuana that he was again using marijuana on a daily basis and in June of 2011 had reported this to his treating doctor as well as indicating that he was using 1 – 2 grams of marijuana per day. The best the husband can do with respect to these matters was to suggest that he did not smoke when the children were present with him (notwithstanding the clear and largely uncontroverted evidence of the wife that she had, in the early days of separation, delivered the children to the husband and on so doing had found large quantities of marijuana at the husband’s home) or to indicate that he simply could not recall saying those things to the doctor or whether they were true.
Again, by reference to the above credit finding and the admissions against interests made by the husband to his own treating doctors in 2004 - 2011 I am satisfied that the husband’s use of marijuana has been substantially higher than alleged by him and at a substantially greater rate and more significant cost. The cost of the husband’s marijuana habit during the relationship has not been specifically calculated but would clearly be tens of thousands of dollars. That is not to suggest, at this point, that I am accepting there should be any notional add back or adjustment for contribution or s.75(2) adjustment by reference to such marijuana use but clearly identifying that to the extent that there is dispute as to the factual matrix of such usage that I would prefer the evidence of the wife and as supported by the independent, corroborative documents tendered into evidence as previously referred to (specifically exhibits W4 and W5).
Expenditure and Wastage of Funds
The husband’s case, as best as I can apprehend it, involves the concession that he has gambled approximately $100,000 within a two year period September 2007/September 2009.
The husband would otherwise appear to assert that:
a)The funds that he gambled were derived from his inheritance and were, accordingly, “his money”.
b)To the extent that he has engaged in excessive gambling and expenditure he asserts that his wife has done the same. However, the husband has no support of corroborative documents which would support that allegation and it is denied by the wife. As indicated above absent corroboration or concession I am not inclined to accept the husband’s evidence.
c)The husband asserts that his gambling was for the fixed period of two years as stated above. However, the wife’s allegation is that funds had been received by the husband from his inheritance and the like and deposited into an account in the husband’s sole name. After some time and simultaneous or about the time as the purchase of the Property R property funds were then transferred into the mortgage offset account. However, there was a significant reduction in the funds that had been received by the husband (over and above expenditure in purchasing the boat) during this period and which reduction is entirely unaddressed and unaccounted for by the husband. It is not an irresistible conclusion that the reduction is reflective of gambling expenditure by the husband. However, it is one possibility and that which is urged upon me by Counsel for the wife.
d)The husband asserts that the reduction of funds received from inheritance and sale of the Property U property prior to the establishment of the mortgage offset account can be explained primarily or entirely by the use of funds towards the purchase of the Property R property. However, a substantial quantity of bank statements were tendered by the wife (exhibit W2) which clearly show that a sum of $102,586.93 was transferred out of that account on the day after it was established and applied towards purchase of the Property R property.
e)I am unable to calculate the precise reduction in funds or, indeed, the total expenditure by the husband from the account in his sole name prior to the creation of the offset account as no documents are produced by the husband. That is a matter that falls squarely at the husband’s feet and the husband will bear any consequence as to inability to establish facts in his case.
Legislative Framework
The Full Court has established since early after the commencement of the operation of the Family Law Act 1975 the four step approach that is to be adopted by the Court in adjusting interests in property in parte proceedings.
The four step approach has been identified and reaffirmed in cases such as Ferraro & Ferraro (1993) FLC 92-335, Hickey [2003] FamCA 395 and Omacini & Omacini [2005] FamCA 707. The four steps that I am required to undertake comprise:
a)Identifying the pool of property for division between the parties. The pool is usually, but subject to some exceptions of no relevance to this case, identified and valued at the date of trial.
b)To assess and determine the contributions made by the parties. Contributions can be made in a wide variety of forms as identified in s.79.
c)To determine which of the factors as set out in s.75(2) arise from the facts of any given case and determine what adjustment, if any, should be made by reference to them.
d)To consider whether the orders proposed and thus arrived at through the above three steps represent a just and equitable determination of the parties’ interests.
There is an overriding obligation contained in s.79 of the Act that all orders made by the Court are to be just and equitable.
The Pool
The Full Court had made clear in Burgoyne & Burgoyne (1978) FLC 90 - 467 that “it is impossible for the Court to determine whether any particular order is just and equitable without first determining the nature of the extent of the property of the parties at the time that the Court is making orders”.
The immediate starting point is to then determine what assets make up the pool of property. As indicated at the commencement of these reasons the composition of the asset pool is not significantly in dispute and I note that I have already made comments regarding matters which I propose to exclude from the tendered balance sheet. Accordingly I find that the property available to divide between the parties (absent the issue of any notional add back of property or adjustment of contribution or s.75(2) factors in regard to the allegations of waste by the husband and as raised by the wife) are as follows:
Non Superannuation Assets
| 23 Property R, | $835,000 |
| ANZ Offset Account | $377,828 |
| Husband’s Toyota (model omitted) motor vehicle | $9,000 |
| Wife’s Toyota (model omitted) motor vehicle | $38,000 |
| Wife’s funds in bank (St George) | $18,800 |
| Wife’s funds in bank ((omitted) Credit Union) | $8,100 |
| Westpac Shares held by wife | $21,629 |
| (model omitted) Boat held by husband | $12,500 |
| (model omitted) Campervan | $10,000 |
| TOTAL | $1,330,857 |
In addition to the matters I have described above there is also some controversy as to whether an amount should be included for funds held by the husband in his bank account. The difficulty I have in this regard is that the only evidence I have is that contained in the husband’s financial statement which is a year old. It suggests that funds of $100 are held. I have not included any dollar figure and I propose to deal with this purely as part of an overall finding of contribution and section 75(2) adjustment.
Liabilities
| Mortgage to the ANZ Bank secured against the Property R property | $380,644 |
Superannuation Assets
| Husband’s First State Super | $19,500 |
| Wife’s First State Super | $9,065 |
| Wife's (omitted) Super Fund | $48,426 |
| Husband's (omitted) Super Fund | $28,501 |
| Husband’s (omitted) Account | $24,983 |
| TOTAL | $130,475 |
| Total Non Superannuation & Superannuation Assets | $1,461,332 |
| Less Liabilities | $380,644 |
| Net Total Available For Distribution | $1,080,688 |
Contributions
A significant issue arises in this case as to the initial and extraordinary contributions alleged by the husband.
The husband asserts that he has made a dramatically greater contribution than the wife as a consequence of the above.
There is no dispute that amounts alleged by the husband as being received from the Estate of his grandmother and father were in fact received. These amounts are as follows:
| Grandmother’s Estate | $11,503.59 |
| $12,695.04 | |
| TOTAL | $24,198.63 |
| Father’s Estate | $239,000 (including one half of the Property U property owned by the husband) |
| $90,000 | |
| $13,359.76 | |
| $216,670 | |
| TOTAL | $559,029.76 |
| OVERALL TOTAL | $583,228.39 |
Whilst there is no dispute that the above funds came into being and were received by the husband (and initially deposited into an account in his sole name) the issue that arises between the parties is to the application of those funds and in particular which portions of them were introduced into the relationship.
It is conceded by the wife in submissions by her Counsel in closing of the case that two amounts were specifically received being:
a)An amount of approximately $418,000 (rounded) being the funds transferred out of the mortgage offset account; and
b)Some $100,000 (being the gift from the husband’s father).
The husband seeks full credit for all monies received by him without any discount whatsoever. The husband does so on the basis of asserting that the monies came in and they “must” have been used for the benefit of the parties. To the extent that the husband concedes gambling of an amount of $100,000 he, again, asserts that this should not be counted against him and by reference to specific case law to which I will shortly turn.
There is no dispute that the wife introduced into the relationship far more modest and meagre assets than did the husband. However, that is not to suggest that the wife has not made significant contributions during the marriage. In particular I am satisfied that the wife has made contributions in the following capacities:
a)The wife has made a greater financial contribution than the husband during the period that she was in full time employment with the (omitted) and earned a substantially greater income than the husband who was, at that time, completing an apprenticeship.
b)The wife has attended to the majority of the homemaker and parenting duties and has made the primary contribution towards the family and household.
c)The wife did introduce some assets.
d)The wife introduced her income throughout the relationship which went into the mortgage offset account and was ultimately expended in meeting household expenses and/or in assisting the husband in gambling.
The husband asserts that following his period of problem gambling that his expenditure patterns had changed dramatically and such that he was then limited, by agreement, to receiving a sum of $200 per week by direct debit from the mortgage offset account into an account established in his sole name. That evidence can be accepted on its face and I can accept that a sum of $200 per week was paid to the husband. However, the bank records which are produced also make abundantly clear that the husband, at or about separation, engaged in a significant pattern of transfer of funds by way of telephone banking from the mortgage offset account (which had otherwise been frozen for over the counter and ATM transactions) to his own account. This had the affect that amounts in excess of $1,000 per day and totally some $30,500 were withdrawn by the husband over a period of about a month immediately prior to and following separation. They are funds that the husband has had the sole benefit of.
I do not propose to add those funds back as a notional asset and have not been asked to do so. I am satisfied that even if asked that would be an artificial exercise but such transfer and retention of funds must, in my mind, be accepted as a premature distribution of joint assets of which the husband has had the sole benefit.
I am satisfied that throughout the relationship between these parties that the wife has devoted all of her time and effort to the relationship both in maintaining herself and the husband, the children and the household. I am satisfied that the wife has devoted her income to the relationship. To that end I am satisfied that the wife has made substantial contributions although these must be balanced against the significant contributions made by the husband and as outlined above and as conceded by Counsel for the wife.
The introduction of funds by the husband, I am urged, should also be tempered having regard to the conceded expenditure of the husband with respect to gambling. Even on the basis of that which is conceded by the husband something in the nature of 10% of the present asset pool was dissipated by him. On the basis of the allegation by the wife that an amount of $165,000 - $176,000 was expended by the husband on gambling and other activities then an amount approximating 20% of the present value of the asset pool has been dissipated.
I am guided by authorities such as Pierce & Pierce [1998] FamCA 74 and SJS & NS (2005) FLC 93-214 as to the approach that I should adopt towards the husband’s extraordinary contributions. In Pierce & Pierce their Honour’s said (at paragraph 28):
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution”
I am satisfied that the line of Full Court authorities commencing with Pierce & Pierce make clear that:
a)Initial and extraordinary contributions are not “special”.
b)Initial and extraordinary contributions must be viewed within the context of the totality of contributions made by both parties throughout the relationship.
c)Initial and extraordinary contributions are not eroded as such but must, again, be viewed and balanced against all other contributions of all other kinds made by all parties at all times.
Having regard to the above I am satisfied, as is urged by Counsel for the wife, that the appropriate range of ultimate finding of contribution balancing, as I do, both the husband’s initial and extraordinary contributions and the significant contributions made in a direct and indirect financial, direct and indirect non financial and homemaker and parent contributions by the wife, ought be in a range of 35 – 45% in the wife’s favour. Indeed, I am satisfied that the contribution should be assessed at the mid point of that range being 40%.
Allegations of Waste by the Husband
The allegations of waste can be addressed, by reference to authorities to which I have been taken by Counsel, through one or both of a notional add back of assets and/or through an appropriate adjustment through contribution and/or section 75(2) factors (particularly utilising s.75(2)(o)).
Counsel for Mr Albert particularly referred me to and have sought to rely upon the Full Court’s decision in Crampton [2006] FamCA 528. That authority has some particular weight arising as it does from an unsuccessful appeal determined by an eminent bench of the Full Court (Bryant CJ, Warnick and Boland JJ) and from a first instance decision of a no less eminent legal mind Coleman J. Their Honour’s, in accepting and endorsing the methodology of Coleman J, were satisfied that it would be inappropriate in the overall context of that case, determined upon its own facts, to make any significant adjustment for contribution or section 75(2) factors or to notionally add back any specific sum as having been gambled.
Each case must, however, turn on its own facts. Whilst the consideration by their Honours of Coleman J’s methodology has been of substantial assistance, guidance and information to me I note that a significant distinguishing feature of that case (and a number of the authorities referred to therein) is the existence of medical evidence to address and explain the (in that case the wife’s) course of conduct in excessive gambling and expenditure of funds.
His Honour Coleman J in quoting Carmody J in Derek [2005] FamCA 356 observed:
“the point at which the party who recklessly or wantingly incurs debts or increases unsecured liabilities may be penalised for economic fault under the Kowali principle (1981) FLC 91-092 is not always easy to define as a concept or identifying practice”.
His Honour went on to again refer to and adopt Carmody J decision in Derek as to a Briginshaw test (now embodied in s.140 of the Evidence Act 1995) applying in such circumstances as the consequence of such course of action was substantial.
It is of note in my mind, however, that each of the authorities dealt with in that case and which have been considered and addressed by his Honour at first instance represented circumstances whereby some pathology based upon an underlying condition or illness was identified in the subject of evidence. This was particularly so in relation to the decision of De Angelias (2003) FLC 93-133 as quoted and referred to in that case.
Their Honour’s in Crampton also referred to a decision of then Federal Magistrate Ryan AB & GB (No.2) [2005] FMCAfam 402 and that authority is relied upon in the wife’s case. Their Honour’s did not specifically address the statement of deduced principles set out by her Honour in that case and to which I now turn as being somewhat instructive.
In AB & GB her Honour had conducted a useful summary of prior case law arising from different constructions and interpretations of the Kowali argument (commencing at paragraph 39 of the judgment).
Her Honour then arrived, at paragraph 53 of the judgment, at a list of 14 defined circumstances in which Kowali arguments had to that date, arisen. Many of these dealt with issues with respect to legal costs and blatant wastage of assets (such as shutting the doors of a business and thereby incurring substantial debt). Within that list her Honour recognised that “the premature distribution concept is not restricted to post separation transactions.” and noting that “where the monies have shown to have been reasonably disposed of the notional add back approach should be the exception and not the rule”.
Importantly with respect to this case, where it is impossible, largely due to the failure of the husband to produce documents that would assist in the exercise, to quantify the amount gambled her Honour noted:
“notionally including assets may include unascertained assets even if the precise value is not known” and “even if [this] does not involve waste the economic consequences of a significant reduction in any asset pool must be considered”.
Her Honour then went on to discuss a number of other authorities.
By reference to all of the above I am satisfied that:
a)I should include a notional add back for funds which have been expended during the marriage by the husband in relation to gambling; and
b)The determination as to contribution of the parties that I have made would, on that basis, not change.
Lest I am wrong with respect to the above, then, in the alternative, and in the event that there was to be no notional add back of an asset I would be inclined to take one of two approaches which would appear to be supported by the authorities mainly:
a)To require the husband to pay back to the wife one half of the amount which he had expended (being the approach adopted by her Honour then FM Ryan in AB & GB) and/or
b)To adjust the wife’s contribution and so as to increase it proportional to the “benefit” the husband has had through his gambling and other expenditure including significant sums in purchasing and consuming marijuana.
It is also urged upon me that I would be reluctant to make any adjustment with respect to the amounts gambled away by the husband as the wife is, on the husband’s case, suggested to have been fully aware of his actions.
The wife’s evidence in that regard is contrary and is to be preferred and accepted. The wife indicates clearly that she had, throughout the relationship, sought to speak with the husband regarding his gambling. She indicated at one point as regards conversations with the husband “when we get to a point in the conversation if it’s not going his way he gets agitated and angry and violent”.
The wife otherwise indicated that whilst she had been aware that the husband had a propensity to play poker machines she had been entirely unaware of the extent of this:
a)Prior to funds being transferred from the mortgage offset account as the husband maintained funds in his own account to which she had no access; and
b)Had, as soon as she became aware of the extent of the expenditure, raised this with the husband. Indeed the wife had expressed some real distress when relating such conversations and indicated “I told him to stop gambling and he said if he did I need to stop getting my hair done” and, without the benefit of a transcript and doing the best I can from my handwritten notes, indicating at one point words to the affect “I begged him to stop as it was tearing our family apart”.
Clearly the wife’s actions also suggested that she was taking active steps to preclude and counter the husband’s gambling expenditure and through taking steps to freeze the bank account. These did not appear to be entirely successful as, by reference to the above evidence, in a space of less than one month the husband transferred funds of $30,500 by internet banking thus further depleting the account.
Having regard to the above I would again prefer the evidence of the wife and would, accordingly, notionally add back an asset to the value of $165,000 to be available for division between the parties. I would not make any further adjustment to the finding of contribution that I have already made being 60% in the husband’s favour and 40% in the wife’s.
On the basis of the above notional add back the nett total available for division would be as described above, namely:
| Husband’s First State Super | $19,500 |
| Wife’s First State Super | $9,065 |
| Wife's (omitted) Super Fund | $48,426 |
| Husband's (omitted) Super Fund | $28,501 |
| Husband’s (omitted) Account | $24,983 |
| TOTAL | $130,475 |
| Total Non Superannuation & Superannuation Assets | $1,461,332 |
| Less Liabilities | $380,644 |
| Net Total Available For Distribution | $1,080,688 |
| Plus notional add back | $165,000 |
| Notional total | $1,245,688 |
Section 75(2)
I am then required to turn my mind to what adjustment, if any, should arise with respect to s.75(2) factors.
In considering s.75(2) factors I am urged in the wife’s case to make an adjustment of 10 – 15% in her favour based largely upon her retaining the substantial full time care of the two children of the relationship presently aged 9 and 7 years of age. In the husband’s case I am urged to make an adjustment of 5 -10%.
For reasons I will canvas more fully below I am satisfied that the common ground between these submissions (10%) should be the figure I adopt.
In arriving at the above I have considered the following individual factors pursuant to s.75(2) namely:
Age and state of health of the parties
There is no evidence before me of a probative nature to suggest any impediment to the ability of each party to participate fully and appropriately in the paid employment in which they are presently engaged and which generates for each of them a not dissimilar income. The parties are of a similar age.
Income property and financial resources of each party and their capacity to gain employment
Each of the parties has the need to rehouse themselves. The husband, since separation, has had the benefit of occupation of the former matrimonial home at Property R and the wife has contributed to this accommodation as the mortgage would appear to have been largely met through depletion of the mortgage offset account (at least until recently).
Neither party has any impediment to participation in employment other than as arises, in the case of the husband, through health difficulties he may create for himself through excessive marijuana use and, in the case of the wife, her having the full time care of the two children. However, any difficulties that might arise for the wife are largely ameliorated through the wife having her parents available to assist her in the children’s care or illness and the like and in the wife being employed at the school which the children presently attend. This will not continue once the children commence at high school.
Whether either party has the care or control of children who have not obtained the age of 18 years
Clearly under the parenting orders that have already been made by consent between these parents the wife will assume the preponderance of day to day care of the children. The wife receives child support as assessed. However, it is recognised that the payment of child support is a contribution towards the overall cost of children’s care.
The husband will have the care of the children each alternate weekend from Friday until Sunday as well as periods during school holidays and will, at those times, need to provide for the children’s material needs. However, this factor favours the wife.
Commitments of each party that are necessary to enable them to support themselves or a child or other person
Each of the parties has a legal obligation to support themselves but not the other. Each has a legal obligation to support the children and presently does so through assumption of their day to day care and/or payment of child support.
I am satisfied that this factor must favour the wife as she has the preponderance of the children’s care and with it the consequent limitations this would have upon her ability to order her life as she wishes and, to some extent (again ameliorated through her being employed at the children’s school) in engaging in paid employment of her choice.
The responsibilities of either party to support any other person
Neither party has a responsibility to support any other person other than themselves and their children.
The eligibility of either party to receive an income tested benefit
This factor is not relevant
Where the parties have separated each party maintaining a standard of living which is in all the circumstances reasonable
The Full Court has been clear that a reasonable standard of living need not be directly referable to the cohabitation and pre separation standard of living.
The husband has, since separation, returned to and resumed occupation of the matrimonial home. Clearly some restorative and remedial work has been undertaken by him as it had been intended to demolish that home. However, he has had the benefit of that work.
The wife has, since separation, been assisted in accommodation and day to day activities by her family but otherwise has the cost of maintaining herself and does so presently in rental accommodation.
The wife wishes to be in a position to obtain owned accommodation for herself and the children and the orders which I propose to make should enable this to occur although I have not sought to tailor the end result to meet that need. The wife will have, at worst a substantial deposit towards more than adequate accommodation in the area in which she lives and with the possibility of requiring a small mortgage which she will be in a position to service from her income.
The extent to which payment of maintenance would increase earning capacity of either party
This factor is not relevant.
The affect of orders on proposed creditors
This factor is not relevant.
The extent to which either has contributed to the others earning capacity.
There is no significant suggestion that either party has contributed to the other’s earning capacity.
The duration of the marriage and the extent to which it has affected earning capacity
These parties have been engaged in a relationship from 1997 until separation on 27 August 2009, a period of some 12 years. The parties cohabited on a full time basis for 10 years of this period.
The relationship of these parties is of moderate duration. It has not significantly affected either party’s earning capacity although the wife was clearly in higher remunerated employment earlier in the relationship than she is at present. The wife has the benefit, however, that her present employment enables her to be available for the children before and after school and indeed to transport them presently to their school as her place of employment.
The need to protect the party who wishes to continue that party’s role as a parent
Both of the parties wish to continue in a parenting role with respect to their children and have entered into consent orders that will enable this to occur. Ms Taffey will have the preponderance of care and will be in a position to continue to do so irrespective of such orders as are made by me.
If either party is cohabiting with another person the financial circumstances of this
Neither party has re-partnered and, accordingly, this factor is not relevant.
The terms of any order proposed to be made as to property adjustment in relation to the parties property or vested bankruptcy property
This factor is not relevant.
naa. The terms of any order or declaration under Part VIII AB
This factor is not relevant.
na. Any child support that has been provided or will be provided
The child support that is presently provided by Mr Albert is in accordance with an assessment and reflective of the incomes earned by each party. Accordingly this is somewhat neutral factor although I again acknowledge that the majority of care and accordingly the majority of cost in meeting that care will be met by Ms Taffey.
Other facts or circumstances
The Full Court authorities quoted above have made clear that I am entitled to make adjustments regarding conduct of the parties that might fall under the general umbrella of “wastage”. I do not propose to make any significant adjustment in this regard as I have sought to address it through both my findings as to contribution and the add back of a notional asset to reflect that which has been expended or, doing the best I can, might be extrapolated.
The adjustment to be made with respect to section 75(2) is not an exact science. It is not a checklist by which specific percentage amounts are added for individual factors but rather an overall balancing and weighting of factors to arrive at a result. It is on this basis that I determined that an adjustment of 10% is appropriate.
Justice and Equity
The Full Court has acknowledged in cases such as Clauson (1995) FLC 92-595 that the Court has a broad discretion as to the division of property between parties and that any such decision making process must, of necessity and by reference to the language of the legislation, be discretionary. In this case neither party has sought a superannuation splitting order, there has been no notice or due process to any trustee and, in any event, the superannuation interests of each party are comparable. I intend, accordingly, to include all assets and divide the total pool with each party to retain their superannuation interests.
An issue might ordinarily arise, by reference to authorities such as Coghlan [2005] FamCA 429, as to whether the same percentage should be applied to superannuation and non superannuation assets and whether the Court should deal with assets in specie or as part of the total pool.
In this case I am satisfied, having arrived, through assessment of contribution and adjustments pursuant to s.75(2), at an equal division of assets that the same percentage should apply to both superannuation and non superannuation assets and it is on this basis that the pool has been described as a single pool above.
In balancing the justice and equity of the outcome that would be arrived at from the formulation of the earlier three stages I am satisfied that I must look to the overall outcome that this will produce for the parties.
In the husband’s case it is suggested that he has introduced into the relationship amounts approximating $600,000. The orders that I propose to make will see each party receiving total assets (whether tangible or superannuation) with a total value of little less than $630,000.
Were it not for the findings that I have made with respect to wastage and the significantly greater contributions made by the wife through the introduction of earnings, homemaker and parenting contributions and the like I would have some difficulty accepting that this outcome were just and equitable as regards Mr Albert. However, the affect of the notional add back of funds expended by Mr Albert in gambling results in Mr Albert also receiving the benefit (if I might call it that) of one half of the amount that he has gambled representing a further sum of some $82,500. Accordingly Mr Albert is receiving an amount approximating three quarters of a million dollars.
From Ms Taffey’s perspective I am satisfied that the amount which she will receive is appropriate. This will reflect the contributions and hard work that she has engaged in during the relationship, the ongoing contribution and commitment that she will make to the care of the two children of the relationship on a full time basis as well as meeting her future needs to accommodate herself and her children. Accordingly I am satisfied that the above orders and the above methodology of arriving at same represent a just and equitable exercise of discretion pursuant to Part VIII.
Consequence of orders
On the basis of an equal division of the notional pool each party should receive $622,844 and this will be achieved as follows:
| Wife | Husband | ||
| ANZ Offset Account | $377,828 | 23 Property R, (nett) | $454,356 |
| Wife’s Toyota (omitted) motor vehicle | $38,000 | Husband’s Toyota (omitted) motor vehicle | $9,000 |
| Wife’s funds in bank (St George) | $18,800 | (omitted) Boat held by husband | $12,500 |
| Wife’s funds in bank ((omitted) Credit Union) | $8,100 | (omitted) Campervan | $10,000 |
| Westpac Shares held by wife | $21,629 | Husband’s First State Super | $19,500 |
| Wife’s First State Super | $9,065 | Husband's Super Fund | $28,501 |
| Wife's (omitted) Super Fund | $48,426 | Husband’s (omitted) Account | $24,983 |
| Cash payment from husband | $100,996 | Plus notional add back | $165,000 |
| Less payment to wife | $100,996 | ||
| Nett Total | $622,844 | $622,844 |
Parental Responsibility
In dealing with any application under Part VII the Court is required by reference to Full Court decisions such as Goode & Goode (2006) FLC 93 – 286 and Marvel & Marvel [2010] FamCAFC 101, to follow the legislative pathways set out in Part VII
I am required to commence by considering the objects and principles as set out in s.60B of the legislation. These objects and principles do not form part of the substantive law but influence and guide the Court’s determinations in application of substantive provisions.
The only issue that remains to be determined by the Court with respect to parenting is the allocation of parental responsibility and whether, as is proposed by Mr Albert, it will be joint or whether, as is proposed by Ms Taffey, this will be her sole responsibility.
The objects and principles as set out in s.60B state as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
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):
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
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
parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
parents should agree about the future parenting of their children; and
children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The thrust of the objects and principles is to recognise, subject always to the caveat of the children’s best interest being the paramount consideration (as set out in s.60CA), that children should remain actively engaged and involved with each of their parents and have as meaningful a relationship with each of their parents as is possible and consistent with their best interests.
Both of these parties clearly agree that there is benefit to these children from having and maintaining a meaningful relationship with both of their parents and it is on this basis that I am satisfied that the parties have entered into the consent orders made by me on the first day of trial.
Having considered the objects and s.60CA I am required to turn to s.61DA which sets out a presumption of equal shared parental responsibility in the following terms:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
I am urged by Counsel for Ms Taffey to find that there has been family violence and, as a consequence, that the presumption does not apply. The difficulty I have in this regard is the absence of evidence.
Whilst I wholeheartedly accept and empathise with that put by Ms Taffey during re-examination (that she has not led any greater evidence with respect to alleged violence during the relationship as she does not wish to recall such matters and, similarly, it being on this basis that she has not reported same to the police) the Court is left in the invidious position that determinations must be made by reference to the application of legislative provisions to evidence rather than, as highlighted in the Full Court’s appeal decision of Dylan & Dylan [2007] FamCA 842 (an appeal from a decision of Carmody J) upon gut instinct, empathy, sympathy or any other extraneous emotion or condition.
The evidence that is available with respect to violence alleged by Mr Albert is that which I have referred to and discussed above. This would suggest that following an attendance by Mr Albert at the home of Mr Taffey’s parents (with whom she was then residing but whilst she was not at home) that a complaint was made to the police and ultimately an order made by the Court by consent and without admissions.
The Court must be satisfied that there has been family violence within the definition in s.4 of the Act which states:
“"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”
The evidence that is lead as above (and it being the only evidence available whatsoever with respect to an allegation of family violence and which would appear to have been the sole evidence lead in support of the apprehended domestic violence complaint) does not satisfy me that I can make a finding that family violence has occurred. The evidence simply does not support such a finding.
It is not suggested that there has been child abuse or neglect and accordingly no such finding can be made.
In the event that the ADVO proceedings had run before the relevant State Court by way of either criminal charge or hearing of an apprehended domestic violence complaint and evidence had been given and findings made by that Court then I would be disposed to accept those findings on their face as sufficient to establish the existence and a finding of family violence. I am satisfied that so much would be permitted by s.69ZX(3) which provides:
“The court may, in child-related proceedings:
receive into evidence the transcript of evidence in any other proceedings before:
the court; or
another court; or
a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).”
As the order was made by consent and without admissions then it is not available to me to adopt such course. Further there is no transcript available.
As indicated, based on the evidence that is led as regards family violence (as opposed to the mere allegation) I cannot be satisfied that there is sufficient evidence of probative value to enable me to make any finding of family violence.
The presumption can also be rebutted, pursuant to s.61DA(4) as follows:
“The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. Similarly I am not satisfied that the evidence as it presently stands establishes that it is not in the child’s best interest for the presumption of equal shared parental responsibility to apply.”
I am not satisfied that the evidence supports such a finding.
The final basis upon which the presumption does not apply set out in subsection 3 but that deals only with interim proceedings. As these are final proceedings it cannot apply.
As would be apparent from above I am satisfied that the presumption of equal shared parental responsibility applies. That does not, however, end the matter. It would be possible for an order for equal shared parental responsibility to be made even if the presumption did not apply or was otherwise rebutted. Similarly it is possible for the Court to make an order for sole parental responsibility even if the presumption were to apply and if the Court considered that it was not reasonably practical nor in the children’s best interest (by reference to ss.65DAA(5) and 60cc respectively) for an order of equal shared parental responsibility to be made. Accordingly and lest I am mistaken as to the above interpretation of the Court’s exercise of discretion relating to the application of the presumption, I propose to consider ss 65DAA(5) and 60CC. I propose to do so briefly however and in summary form by reference to the evidence.
Section 65DAA(5) deals with issues relating to reasonable practicality.
Section 65DAA(5) is in the following terms:
5. In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
how far apart the parents live from each other; and
the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
the impact that an arrangement of that kind would have on the child; and
such other matters as the court considers relevant.
I am satisfied that the parents live within relative proximity to each other and are each sufficiently available so as to not create any impracticality in joint decision making occurring based on physical and logistical difficulties alone.
Whilst it is suggested, particularly in the wife’s case, that the parents have little current and future capacity for communication, capacity to implement arrangements between them or capacity to problem solve this would not appear supported by the evidence. Whilst certainly communication between the parties is limited and at times strained clearly they have been able, without resorts to this Court or any other, to have arrangements in place for the care of their children on an interim basis since shortly after separation until final hearing and without recourse to interim or urgent application. Indeed the parties had not even required the assistance of a Family Dispute Resolution Practitioner to put arrangements in place.
Communication, when it has occurred, would not appear to have been particularly problematic. That perhaps arises as communication has largely been undertaken on the basis that Ms Taffey has, by and large, made decisions (it would appear both prior to separation and post) and communicated these to Mr Albert who has, by and large, simply gone along. This is certainly the case as regards the children’s change of school earlier this year. It is submitted in Ms Taffey’s case that this would represent nonsense as regards equal shared parental responsibility as Ms Taffey will, in any event, in all probability, continue to make decisions.
I accept this reality. However, this does not obviate from that which is required by parents with equal shared parental responsibility and as is defined by the legislation.
Section 61B of the Act provides that parental responsibility “…in relation to a child means all the duties, powers, responsibilities and authorities which, by law, parents have in relation to children”. I cannot be satisfied that I should, in this case, take a serious step (so described and discussed by Murphy J in Pitken & Hendry [2008] FamCA 186 of removing parental authority from Mr Albert without strong basis, available probative evidence supporting same and by making such determination by reference to Division 12A and section 140 of the Evidence Act.
Section 65DAC makes clear that when parents equally share parental responsibility that they are obliged to consult upon decisions that are major long term issue decisions. Parents are not obliged, as is made clear by the section, to consult on issues which are not major long term issues decisions.
Major long term issue decisions as specifically defined in section 4 of the Act as follows:
“"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent”
The only decision which would appear to have been made, which would fall within the definition of a major long term issues decision, since the separation of these parties has been the children’s change of school during 2011. That decision was clearly made by Ms Taffey with little or no prior reference to Mr Albert who, upon being advised of the decision, accepted it and would appear to have done so in the spirit of accommodation and reflecting his confidence in Ms Taffey’s ability to make such decisions.
Other major issues decisions as so defined, however, should involve both parents. I would propose to make some limitation in this regard, going part of the way to that which is urged (by Ms Taffey's Counsel) so as to provide that no further consultation need occur with respect to the children’s ongoing primary education at their present school provided that they remain there.
Whilst it might clearly be suggested by Ms Taffey (and perhaps a submission of some force and application having regard to the evidence in the matter) that Mr Albert is unlikely to cavil with her decisions that does not obviate or detract from his right to be involved in decisions at least to the extent of consultation.
I am satisfied that the parties have sufficient communication skills and sufficient ability to implement such an order if made.
In turning to s.60CC I note that I am required to first consider the primary considerations being the benefit to the child of having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm.
It is not suggested that the determination by me of the allocation of parental responsibility will impact upon the physical or psychological well being of these children or indeed either of these children. It is suggested that this may impact upon the psychological wellbeing of Ms Taffey if she is forced to consult with Mr Albert in circumstances wherein she holds some real fear or apprehension in doing so. Again, the difficulty is that other than the mere assertion I have no evidence to support or to ground such a finding.
In relation to the benefit to the children and their meaningful relationship with both parents I am satisfied that to deprive Mr Albert of the opportunity to be involved in decision making, at least with respect to major long term issues decisions, would be to send a dangerous message. In such circumstances these children would be fully aware that their father has no role to play whatsoever in the more substantial issues of their “parenting” and I am satisfied that this could only, if it were to have any impact at all, have a negative impact upon the children’s likely meaningful relationship with him.
With respect to the additional considerations and touching upon them briefly I note:
The children’s views
There is no evidence before the Court as to the children’s views in relation to the allocation of parental responsibility. Having regard to their ages and the circumstance of the matter I would not be inclined to place any significant weight upon such views even if they were available.
The nature of the children’s relationship with either parent
The children enjoy a relationship with each parent sufficient to support the orders that the parent’s have agreed to and which will see Ms Taffey being their primary carer and Mr Albert having equal school holiday time and alternate weekends with them. I am not satisfied that this would impact significantly on the decision I am to make.
Willingness and ability of each parent to facilitate and encourage a close relationship
I am not satisfied that there is any evidence upon which I can base a criticism of either parent.
Likely affect of change
Mr Albert has not been significantly involved, as would appear common ground on the evidence, in past decision making with respect to the children. However, I am satisfied that it would be a positive benefit to the children for their father to become more involved, at least in a consultation process, regarding such decisions so that the children are fully aware of his position and his desire and willingness to be engaged as an active parent.
Practical difficulty and expense
I have addressed this factor above.
Capacity of each parent to provide for the children’s needs
I am satisfied that Ms Taffey is an excellent, capable and competent parent. I am similarly satisfied that Mr Albert, subject to the short comings raised as criticisms by Ms Taffey particularly with respect to his marijuana use, is a good parent. I am not satisfied that either parent lacks the capacity to be involved in making insightful, child focused contributions, by consultation, to major long terms issues decisions for their children.
Maturity, sex, lifestyle and background of the children
This factor is not of any great relevance.
The children are not from an Aboriginal or Torres Strait Islander background
The attitude to the child and the responsibilities of parenthood demonstrated by each parent.
Mr Albert pays child support as assessed. He has attended, without criticism, to spend time with the children for each period that has been agreed between the parents. Similarly Ms Taffey has provided for the children and has met their day to day needs without criticism. Accordingly I am satisfied that this factor is of no great assistance.
Family violence involving the child or member of the child’s family
As I have indicated allegations are raised in this regard but no real evidence presented to support same.
Any family violence order that applies.
A final family violence order was made in Ms Taffey’s favour on a by consent and without admissions basis. That order was made on 7 September 2010 and for a period of 12 months and has accordingly expired. There are no orders in force at present.
Whether it would preferable to make an order that would least likely lead to the institution of proceedings.
I am conscious as is submitted in Ms Taffey’s case that if the parties are unable to reach agreement with respect to major long term issues decisions that there is a possibility that the matter may return to the Court for litigation (subject to assessment of suitability for and attendance upon Family Dispute Resolution). There is some force to that submission. However, if I were to accept it then it would be on the basis that, indeed, in every matter where parents are other than entirely at one with each other in decision making (which generally does not reflect the cases that are before the Court) that sole parental responsibility would be indicated. I am satisfied, by reference to the revised explanatory memorandum to the 2006 amendments and the wording of the legislation itself, that this would be contrary to the express intent of the legislation and would represent a miscarriage of my discretion.
I am also entitled to have regard to sub-s 4 of s.60CC and to consider the extent to which either parent has failed to take the opportunity to participate in decision making. This is, at least inferentially, urged upon me in Ms Taffey’s case and noting that there appears little dispute that for the majority of the children’s lives, including while the parties where together, that decision making was largely left to Ms Taffey and that Mr Albert, no doubt with confidence in Ms Taffey’s parenting capacity and insightful decision making, was content to simply be advised of decisions once made and confirm them.
The circumstances that existed during the relationship and marriage of these parties may or may not be uncommon. However, a significant change has occurred in that these parties have separated and the willingness of Mr Albert to leave decision making by and large to Ms Taffey during an intact relationship must, of necessity, be changed (and Mr Albert makes clear that this is so through his application) once separation has occurred. I am not satisfied that I can be overly critical of Mr Albert (or for that matter Ms Taffey) by reference to any of the factors in s.60CC(4).
For the above reasons I am not satisfied that an order for sole parental responsibility should be made. I am, however, satisfied that the children should not be further disrupted in any change of school lest it be suggested that an order for equal shared parental responsibility might open the door to a further renegotiation of that issue forthwith. Accordingly I propose to make an order that the parties have equal shared parental responsibility subject to the children remaining at their present primary school and not being changed there from without prior consultation and discussion between the parties.
I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 21 December 2011
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